International education is one of the pillars of economic growth in Australia. The government is committed to welcoming people who genuinely want, and can afford, to study here.
Curiously though, if you are an overseas student with a disability or health issue, or have an accompanying family member with a similar condition, you are at serious risk of having your visa refused. The current policy doesn’t make sense and discriminates against people with disabilities.
Migration health requirements
Australia’s migration regulations are designed to protect Australia’s national interests. Australia’s rigorous health requirements exclude anyone who might be a threat to public health, or with a condition which could place excessive financial demands on public health or community services.
Few would disagree with controlling the entry of diseases such as Ebola or active tuberculosis into Australia. The other arm of policy though, protecting the budget, is less straightforward.
For the purpose of the visa health requirement, “excessive” cost to public services is set at AU$40,000. This could be for the period of a two month visit, or for permanent residence.
Applicants for some visas can apply for a waiver of the health requirement on the grounds the economic and social benefits they bring to Australia outweigh the costs. But no waiver is available for most student visas. So, if a student applicant or a family member fails the health requirement, the visa is simply refused.
As a visa requirement, international students must:
demonstrate they have private health insurance for all family members
demonstrate they have funds sufficient to cover all educational costs for themselves and their family and to support their family for the duration of their studies, and
ensure their children under the age of 18 attend school.
If they fail to meet these obligations, they may have their visa cancelled. On that basis, they must meet any health or education costs for themselves and their family members.
As temporary residents, international students are not eligible for Medicare under the Health Insurance Act. Neither are they eligible for pharmaceutical benefits, or Commonwealth or state disability support services.
Despite this, an applicant for a higher degree with a health condition and associated medical costs which could exceed AU$40,000 over the life of their student visa, will still be refused the visa.
Similarly, a young family member with a disability such as Down syndrome will fail the health requirement. The child will be assessed as eligible for education support, or “special” education. Even though the applicant must demonstrate their capacity to pay all costs associated with their child’s education, they may be refused the visa.
In fact, some state governments elect not to charge school fees for student visa family members, regardless of whether they use regular or “special” education. This further underlines the discriminatory approach of the federal government. For the purposes of the health requirement, only “special” education is taken into account when assessing cost to the community. Regular education may equally be a cost, but this isn’t taken into account in the visa process.
Cost to the community?
The 2016 Productivity Commission Report into Migrant Intake noted international student visa holders “are unlikely to impose a significant fiscal cost on the Australian government”. This is because they are “excluded from free or subsidised access to most government-funded services (such as health and welfare) and are required to pay some or all of their public education expenses”. In fact, they were characterised as “a direct net fiscal benefit”.
So, an international student who spends money on pharmaceuticals, services like speech pathology or physiotherapy, or special education is actually a greater net fiscal benefit than a visa holder who does not use these services.
Fair and reasonable
The absurd situation of costing visa applicants for community services which they cannot access because of their temporary visa status has been addressed by government before.
The preamble to a 2011 amendment to the Migration Act 1958 noted:
It certainly would not seem fair or reasonable […] to refuse to grant a temporary visa to an applicant with a disability, or an elderly applicant, on the basis of services that they would not be eligible for when in Australia due to the type of visa they are applying for and would hold if granted.
This amendment was subsequently described by the government as “a significant and justified departure” from previous practice. Regrettably, the principle of “fair and reasonable” has never been applied to student visas.
There is no logical reason for an applicant to be refused a student visa on the grounds of potential cost to Australia’s community or health services. International students can’t access these services at a cost to the community.
When assessing a student visa applicant against the health requirements, the applicant should be exempt from all costings related to health, community and disability support services.
Rewriting the Disability Discrimination Act to remedy this situation may not be straightforward. But the Minister for Home Affairs has the power to amend migration regulations relating to applicants for student visas without going through parliament, simply by creating new legislation in the form of a legislative instrument.
Jan Gothard is a Registered Migration Agent (MARN 1569102) and works as a health and disability specialist for Estrin Saul Lawyers, Perth. She is an adjunct Associate Professor of Law at Murdoch University.