The shifting borders experienced by people who are refugees with disabilities

The world has become acutely aware of the public health powers that restrict freedom of movement. Screening people for infectious diseases at borders, quarantining and denying entry to those unwell, is a long-established practice of states. People with disabilities and their families are very familiar with the power of health assessments to categorise and divide at borders. Visa medical assessments in some jurisdictions extend beyond public health threats to screen for non-communicable diseases and disabilities to categorise and divide visa applicants.

Economic productivity and the Australian migration program have long been linked. People who are assessed as less likely to contribute to the economy, or to be a burden on it, have a higher bar to meet to secure a visa or are denied a visa entirely. The Australian Migration Act 1958(Cth) and Migration Regulations 1994(Cth) are exempt from the Disability Discrimination Act 1992(Cth), therefore people who are assessed to have conditions that ‘result in significant healthcare and community service cost’ or ‘ place a demand on health care or community services that are in short supply’ are denied a permanent residency visa no matter their personal circumstances, i.e. personal wealth . Until 2012, these criteria also extended to people resettling through the Australian Refugee and Humanitarian Program.

Discrimination against people who are refugees with disabilities was not unique to Australia’s resettlement program. During the post-World War II reconstruction, countries gave preference to ‘healthy and skilled’ people who were refugees. Therefore, during 1959-60 World Refugee Year the UNHCR highlighted the situation of ‘handicap refugees’ waiting for ‘durable solutions.’ Three-and-a-half decades later, a UNHCR manual ‘Assisting Disabled Refugees’ (1996) directed that the: ‘[r]esettlement of disabled refugees should be the last option. It is more advisable to help the integration of the disabled in their own communities’.

Today, it is estimated that approximately a fifth of the worlds refugee population have disabilities (although the UNHCR do not report on this statistic, NGOs have undertaken surveys). For this group, the 2008 United Nations Convention on the Rights of Persons with Disabilities (CRPD) has been life changing. In 2010, ExCom responded to the CRPD delivering a powerful Conclusion that acknowledged the social model of disability and aligned the work of the UNHCR to the new convention. Further, states party to the CRPD are obligated to assess their own practices and policies to comply with the convention. In Australia this led to a process resulting in a waiver of the health requirements for Refugee and Humanitarian Program visa applicants.

The Australian government does not publish the number of health waivers that it grants, nor is it a precise proxy for disability. But, following the introduction of the 2012 waiver services noticed increased diversity in humanitarian entrants both in age and ability. Australia has committed to 18,750 visas annually in its Refugee and Humanitarian Program. If the visas are offered without discrimination, and accurately reflect human diversity, we could reasonably estimate one fifth of the people arriving through the program will have disabilities.

Mindful that borders are ‘made and remade according to a host of shifting variables’ (Nail, 2016), over the past 18 months I have been following the Australian government’s policy developments that focus on employment outcomes for Refugee and Humanitarian Program entrants. The Australian government (PDF 581KB) intends to ‘drive…better results around labour market outcomes, English language acquisition and integration.’ These are terrific aspirations and align with the CRPD, including: ‘the right of persons with disabilities to work’ (article 27), ‘the right of persons with disabilities to education’ (article 24) (regarding language acquisition, Australian Sign Language (Auslan) must also be offered for people who are deaf or hard of hearing [article 21, Freedom of Expression]), and ‘the right of person with disabilities to take part on an equal basis with others in cultural life’ (article 30).

The Australian government’s communications about the policy changes do not include strategies to engage with diverse groups or provide details about investment to implement measures (reasonable accommodation, universal design, accessibility measures [CRPD, article 2 &9]) to ensure that people who are refugees with disabilities can access employment, learn English or Auslan, and participate in their new community. Inclusion of Disabled Persons Organisations to provide technical advice may be a good first step to ensuring the rights of people who are refugees with disabilities are considered.

To add further complexity, a large proportion of the increased employment, language acquisition and community participation, is to happen in regional areas. The government has set a 50% target for humanitarian settlement in regional Australia by mid-2022 (PDF 581KB). Regional areas, compared to cities, often have less diverse labour markets, less infrastructure, and smaller health and disability support service systems. New humanitarian arrivals with disability often need a range of appointments with specialist services, some in tertiary hospitals, to gain access to aids and equipment, and other disability support services.

I am concerned that the Australian government, in order to meet their targets for rural settlement, jobs, language acquisition, and community participation, may renege on its waiver of the health requirements for Refugee and Humanitarian Program visa applicants, instead providing priority to ‘healthy and skilled’ applicants. The 2012 heath waiver was only implemented at the policy level, the details of which are published in an internal manual (PDF 1.40MB) that has only been made accessible to the public through a successful Freedom of Information application. This, along with the lack of data on health waivers, makes it difficult to monitor changes.

Short biography

Philippa Duell-Piening is a PhD candidate at the Melbourne Law School with support from the Melbourne Social Equity Institute. Her research is primarily in the field of human rights law with a focus on disability and refugee rights. Prior to commencing her PhD candidature in 2019, Philippa worked at the Victorian Foundation for Survivors of Torture coordinating the Victorian Refugee Health Network. The focus of Philippa’s work was on health sector development and government engagement to reduce health inequalities and improve access to health services for people who are refugees. Philippa has worked in the forced-migration contexts of Timor-Leste in 2002 and on the Thai-Myanmar border in 2012. She has a Graduate Diploma in International Law, a Master in Community and International Development, and a Bachelor of Occupational Therapy. She has published in Disability and Society about refugee settlement and disability, and about refugee health in a wide range of journals.