(Cth) Restrict Disability-Based Exclusion Against Migrants and Refugees

Sheri Dewhurst, Emmaby Barton Grace, Irene Jophy & Shivani Wadhawan
1 day ago
9 min read

Author: Sheri Dewhurst, Emmaby Barton Grace, Irene Jophy & Shivani Wadhawan | Publish date: 12/5/2026

P: Applicants for migration to Australia can be refused solely on the basis of projected health and social service costs associated with disability.
S: The Minister for Home Affairs should amend Section 52(a)(ii) of the Disability Discrimination Act 1992 (Cth) to narrow exemptions under Schedule 4 regarding disability-based exclusion based on perceived costs as measured by the Significant Cost Threshold (SCT). (See below).
E: Welcoming Disability: 'Section 52 should be amended such that the extent of discrimination it renders legally permissible is narrowed while still balancing the policy consideration of protecting public health’ regarding ‘clauses 1(c)(i) and 1(c)(ii) ... in [Public Interest Criteria] 4005 and 4007 in schedule 4 to the Migration Regulations.'

Problem Identification:

The Disability Discrimination Act 1992 (Cth) makes it unlawful to discriminate against a person on the basis of their disability. However, Section 52 of the Disability Discrimination Act 1992 (Cth) provides an exemption in relation to the Migration Act 1958 (Cth) and/or legislative instruments made under this Act, such as schedule 4 of the Migration Regulations 1994.

According to Welcoming Disability, a campaign advocating for change to the migration health requirement (MHR), this means that the exemption allows for the ‘rejecti[on of] prospective migrants and their families based on disability or a health condition’ as calculated by the SCT. The Chair of Disability Rights at the Australian Lawyers for Human Rights (ALHR) expressed that this exemption’s focus on health costs ‘is archaic, degrading and takes no account of the applicant’s or their family’s ability to contribute socially and economically to the Australian community.’

Context:

Public Interest Criteria (PIC) 4005 and 4007 of Schedule 4 require a visa applicant to be ‘free from a disease or condition’ that may ‘result in a significant cost to the Australian community in the areas of health care and community services’. These healthcare costs are assessed with regard to the SCT. If applicants’ healthcare costs are expected to exceed the SCT, they fail to meet the MHR and their visa may be denied. The Department of Home Affairs stated that ‘the current value of the SCT is $86,000’, for a period of up to 10 years. The SCT takes into consideration costs such as hospital, primary health, and aged care; medical and disability services; pharmaceuticals; specialised education support; and welfare payments.

Arguments:

Australian public health researcher Ghimire (2024) stated that the SCT creates a ‘disproportionate and arguably discriminatory’ fiscal benchmark for visa applicants. The Department of Home Affairs argued that the ‘significant cost is interpreted as a cost that is “higher than the average health and community services cost for an Australian.”’ However, Welcoming Disability reported that, ‘based on [Australian] figures, costs for health and welfare for the average Australian over ten years are $178,420, an amount more than double the SCT.’ Ghimire (2024) expressed that this ‘sends a message that certain lives are less valuable than others, perpetuating stigma and prejudice against people with disabilities.’

The Migration Institute of Australia found that the PICs are ‘inconsistent with … various Human Rights conventions to which Australia is a signatory.’ Welcoming Disability reported that the PICs violate Article 5 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), by ‘not treat[ing] people with disability on an equal basis with others.’ The National Ethnic Disability Alliance described these human rights violations as ‘unfair and unreasonable’. They further stated that it is ‘intolerable that … Australian law should discriminate directly or indirectly against people with disability, even with respect to non citizens, such as refugees and migrants.’

Dr Jan Gothard, Welcoming Disability Migration Policy Advisor, stated that the PICs ‘reduc[e] people to a fiscal number and fail… to acknowledge the value of the immense economic and social contributions that people with disabilities … make throughout Australia every single day.’ According to the OECD and the Grattan Institute, migrants boost local economies by working in diverse jobs, stimulating entrepreneurship and trade, introducing new ideas, and paying taxes. According to Ghimire (2024), ‘while intended to manage public expenditure, the SCT's impact extends far beyond economic considerations’, and fails to recognise ‘the inherent worth … [and] the diverse contributions migrants bring to Australia.’

Advice/Solution Identification:

Welcoming Disability, a collaboration between ALHR and Down Syndrome Australia, has called for the amendment of Section 52 of the DDA to narrow exemptions regarding disability-based exclusion based on perceived costs as calculated by the SCT. Darryl Steff, CEO of Down Syndrome Australia, said that this could ‘pave a way to eliminate the arbitrary, outdated and internationally out of step discrimination embedded in the Australian government’s current migration health requirements.’

Precedent:

There is international precedent for reforming immigration policy to prohibit discrimination against people with disability based on perceived cost. In Canada, visa application refusal is limited to public health safety or cases where treatment and management costs would ‘likely cost more than 3 times the Canadian average for health and social services (per person).’

Public Support:

Welcoming Disability (see below).

Broad Support:

Australian Human Rights Commission - called for changes to the SCT. However, they have not called for the removal of the SCT or for amending Section 52.

The following organisations and experts endorsed Welcoming Disability’s recommendation within this submission:

‘The Welcoming Disability Campaign - a joint civil society campaign led by Australian Lawyers for Human Rights and Down Syndrome Australia’.

This list reflects publicly stated positions and should not necessarily be taken as endorsement of this specific brief.

News Coverage:

ABC News - “Indonesian family seeks reunion with son denied Australian residency due to disability.” The article explained how the exemption in the DDA led to a Melbourne- born son being separated from his parents. By: Kristian Oka Prasetyadi | 6 February 2025 - Read the article here.
BBC - “‘You’re not welcome here’: Australia’s treatment of disabled migrants.” This article reported on multiple families being discriminated against by the Australian immigration system because of their disabilities. By: Katy Watson | 9 July 2024 - Read the article here.
The Guardian - “Australia tries to block disabled people from coming here - it’s part of our ugly history”. This article explored Australia’s history of discriminating against migrants with disabilities. By: El Gibbs | 15 May 2019 - Read the article here.
The Sydney Morning Herald - “‘Our dreams were put on hold’: Family’s relief after ‘hoax’ email from immigration minister proved the real deal”. This article reported on a family’s prolonged distress due to the discrimination their deaf son faced in the Australian immigration system. By: Emily Barton and Elliot Williams | 4 May 2019 - Read the article here.

Where to go to learn more:

(2025) Submission: Attorney-General’s Department Review: Disability Discrimination Act 1992 (Cth) | Welcoming Disability - This submission to the Attorney-General’s Department (Department) into the Review of the Disability Discrimination Act 1992 (Cth) (DDA) provides a list of recommendations regarding changes to the DDA. In particular, it provides an overview of Section 52, why it is discriminatory, and suggests amendments. Read the full submission here.
(2025) Disability Discrimination Act 1992 (Cth) Review: Submission to the Attorney-General’s Department | Australian Human Rights Commission - This submission to the Attorney-General’s Department reviews how the Disability Discrimination Act 1992 (Cth) can be simplified and modernised to remove barriers for people with disabilities. In particular, this submission recommends how the Act can align better with Australia’s international human rights obligations; notably the United Nations Convention on the Rights of Persons with Disability, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. Read the full submission here.
(2025) Protecting health care and community services | The Department of Home Affairs - This page provides more information about what is included in the SCT calculations. Read the full list here.
Disability Discrimination Act 1992 (Cth) - Read the full Act here.
Migration Act 1958 (Cth) - Read the full Act here.
Migration Regulations 1994 (Cth) - Read the full regulations here.

Human Perspective:

Trigger Warning: This section contains themes of disability-based discrimination, possible family separation and financial stress.

Rachel is a UK-based police officer with ten years of experience who is married to a skilled electrician. Together, they have three young children, one of whom has Down syndrome. Rachel applied to be a police officer in Australia and was offered a position in WA, which was recruiting UK-based police officers. However, when she applied for her visa, it was refused, as her son with Down syndrome failed to meet the migrant health requirement (MHR) because of the projected cost of his supported education. Devastated by the refusal and determined to challenge the outcome, Rachel explored her options. She discovered that for some visas, applicants who fail the MHR can apply for a ‘waiver’ on the grounds that the costs are outweighed by the benefits they bring to Australia. However, as she was applying for a Direct Entry visa, she was unable to apply for a waiver. Her and her family’s visas were all refused, despite her having a permanent job offer with WA Police in a critical workforce area. Even though her husband’s skills were also on the Australian and state government’s skills shortage list, the visa for which he could have applied in his own right also did not permit a health waiver. Rachel had already spent over $15,000 on visa application fees for her family, which were not refundable. The projected cost of her little boy’s disability prevented the entire family from gaining residence in Australia. Furthermore, WA missed out on getting an experienced and much-needed police officer and skilled tradesperson. The stress affected the family’s mental health, their financial security, and their sense of dignity. They were also outraged at the affront to their son’s human rights, being reduced to a financial burden rather than recognised as a valued member of the community.

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement:

N/A

Support

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Disclaimers

Please review all FORE disclaimers here.

Reference list:

Australian Government Department of Home Affairs. (n.d). Meeting our Requirements [Fact Sheet]. https://immi.homeaffairs.gov.au/help-support/meeting-our-requirements/health

Australian Government Department of Home Affairs. (n.d.). Protecting health care and community services [Fact sheet]. https://immi.homeaffairs.gov.au/help-support/meeting-our-requirements/health/protecting-health-care-and-community-services

Australian Human Rights Commission. (2025). Disability Discrimination Act 1992 (Cth) Review: Submission to the Attorney-General’s Department. https://humanrights.gov.au/__data/assets/pdf_file/0022/76045/2025-11-14-FINAL-AHRC-Submission-on-Disability-Discrimination-Act.pdf

Australian Lawyers For Human Rights. (2023, March 21). Over 100 organisations and experts call on the federal government to end Australia’s discrimination against migrants with disabilities. Australian Lawyers for Human Rights. https://alhr.org.au/welcoming-disability/

Coates, B., Wiltshire T. (2024, June 11). Cutting permanent migration may make housing cheaper, but it will definitely make us poorer. Grattan Institute. https://grattan.edu.au/news/cutting-permanent-migration-may-make-housing-cheaper-but-it-will-definitely-make-us-poorer/

Department of Economic and Social Affairs - Disability. (2006). Article 5 – Equality and non-discrimination. United Nations. https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/article-5-equality-and-non-discrimination.html

Disability Discrimination Act 1992 (Cth). https://www.legislation.gov.au/C2004A04426/2018-04-12/text

Ghimire, A. (2025). The human cost of exclusion: Australia’s health-based visa restrictions. Australian Journal of Human Rights, 31(1), 124-132. https://doi.org/10.1080/1323238X.2025.2533544

Immigration and Refugee Protection Regulations 2002 (Canada). https://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/FullText.html

Immigration.ca. (2025, February 25). Comprehensive Guide to Excessive Demand and Medical Inadmissibility in Canada Immigration. https://immigration.ca/medical-inadmissibility-excessive-demand/

Immigration, Refugees and Citizenship Canada (IRCC). (n.d.). ARCHIVED - Temporary Public Policy Regarding Excessive Demand on Health and Social Services. Government of Canada. https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/excessive-demand-june-2018.html

Law Council of Australia. (2023, November 27). Review of Australia’s Visa Significant Cost Threshold. https://lawcouncil.au/publicassets/f15a1eb8-2a8f-ee11-948d-005056be13b5/4456%20-%20S%20-%20Review%20of%20Australias%20Visa%20Significant%20Cost%20Threshold%20%20Pres.pdf

Migration Act 1958 (Cth).

https://www.legislation.gov.au/C1958A00062/2021-03-22/text

Migration Regulations 1994 (Cth). https://classic.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/

Migration Institute of Australia. (2023, November 17). Review of Australia’s Significant Cost Threshold. https://www.homeaffairs.gov.au/reports-and-pubs/PDFs/australias-migration-health-requirement-review-published-submissions/migration-institute-of-australia.pdf

National Ethnic Disability Alliance (2008, July). Refugees and Migrants with Disability and the United Nations Convention on the Rights of Persons with Disabilities. https://neda.org.au/wp-content/uploads/2023/06/2008_07_refugees_and_migrants_with_disability_and_un_crpd.pdf

Organisation for Economic Co-operation and Development. (2023). Migration and regional productivity: Evidence from individual wages in Australia. https://www.oecd.org/content/dam/oecd/en/publications/reports/2023/12/migration-and-regional-productivity-evidence-from-individual-wages-in-australia_df7360c2/7bc64c78-en.pdf

Sekulich, H. (2024, July 24). Why some children with disabilities can’t get permanent visas in Australia. The Daily Aus. https://thedailyaus.com.au/health/why-some-children-with-disabilities-cant-get-permanent-visas-in-australia

Welcoming Disability (2023, March). It’s time to tackle Australia’s discrimination against migrants with disabilities. https://alhr.org.au/wp/wp-content/uploads/2023/03/Welcoming-Disability-Open-Letter-March-2023-Final4.docx.pdf

Welcoming Disability. (2025). Attorney-General’s Department Review: Disability Discrimination Act 1992 (Cth). https://static1.squarespace.com/static/5de89a911dcc1455b1ce20fe/t/691ac0e94f830f2cfed63124/1763361001559/Welcoming+Disability+Submission+to+AG+DDA+Review+November+14+2025.docx.pdf