Shizleen Aishath has had to fight to keep her son in the country before — now she's getting ready to do it again.
Kayban Jamshaad was born in Australia in 2016 to parents on temporary visas.
He has haemophilia and a brain injury acquired during birth.
When the family applied to stay in Australia in 2018, the Department of Home Affairs found the estimated cost of Kayban's care — $59,000 a year — was too great for the family to bear, even though they had been supporting him on their own.
It also ruled that Kayban did not meet compassionate or compelling circumstances for a health waiver.
The decision was overturned by the Administrative Appeals Tribunal and Kayban was added to the family's temporary skill shortage visa — but the reprieve was brief.
The family is now applying for their next visa, only to receive another letter notifying them Kayban does not meet the health requirement.
If an applicant fails the health requirement and is not eligible for a health waiver, all applicants on the application will be refused.
"Before, it was about keeping my baby safe, this time I just see that systemic issue," Shizleen Aishath said.
"Why am I having to do the same thing when the paperwork shows that we've done the right thing and … he has a precedent against himself?
"Why are we doing it just to tick boxes? He's a human being.
"[Kayban's] cost of care shouldn't dictate his life worth … or his quality of life.
"I've never been able to move past the basic human rights quandary in this situation, where somebody can be discriminated against, that severely, for something that's so out of their hands."
Calls for review of 'significant cost threshold'
Disability advocates are calling for urgent reform of Australia's migration laws to end what they say is discrimination against people with a disability or health condition.
Down Syndrome Australia, Australian Lawyers for Human Rights and 100 other organisations and experts have signed an open letter to the federal government, calling for an end to the Migration Act's exemption from the Disability Discrimination Act.
They also want a review of the "significant cost threshold" which assesses how much a person will cost in terms of health and community services, and for all children born in Australia with a disability or health condition to parents on temporary visas to be granted an automatic health waiver.
A Department of Home Affairs spokesperson said the department was evaluating the migration health requirement, including reviewing health screening requirements and the significant cost threshold.
"The evaluation seeks to assess whether the migration health requirement meets community expectations," the spokesperson said.
'One fails, all fail'
Tasmanian Refugee Legal Service senior lawyer Taya Ketelaar-Jones said the health criteria assessment was different for refugee and humanitarian visas, but people from a refugee background could still be affected.
One of her clients, Mohammad*, fled Afghanistan more than 20 years ago.
He was granted a protection visa and he has been trying to bring his wife and four children to Australia through a partner visa application for more than a decade — but one of his sons has failed the health criteria due to an intellectual disability.
Ms Ketelaar-Jones said the emotional toll had been immense for Mohammad.
"This is someone who fled their country of origin because of persecution, had to leave their family behind. Their family have also fled their country of origin and are in pretty unsafe and unstable conditions," she said.
"Now we've got the issue of potential refusal from the health criteria and overcoming that hurdle to try and bring them [here].
"It's one fails, all fail."
Another client, Asif*, is from a country where homosexuality is criminalised.
He has applied for a protection visa due to a risk of persecution based on his sexuality if he returns home.
Ms Ketelaar-Jones said while his case was strong, very few protection visas were granted each year.
He has the skills to apply for a skilled migration visa but he can't because his HIV-positive status means he would fail on health grounds.
'Completely arbitrary'
Australian Lawyers for Human Rights (ALHR) disability rights chair Natalie Wade said the current approach did not consider the social and economic contributions of applicants and their families.
The significant cost threshold also varies widely between countries. Australia's is $51,000 over 10 years — if met, the person cannot migrate.
By comparison, Australian Institute of Health and Wellbeing data in 2019-2020 showed health expenditure per person for one year was greater, at $7,926.
In Canada, it's $CAD24,000 per year, and in New Zealand it's $NZ81,000 over five years.
"Frankly, for decades — since the migration regulations have read in this way and applied this cost threshold to people with a disability — we have seen a disproportionate number of visa applicants being denied their application," she said.
"It's completely arbitrary. It's theoretical, and it's a fundamental breach of human rights."
Ms Wade said Australia's process had a profound impact on people's emotional wellbeing.
"It leaves applicants seeking to stay in Australia with not only a high degree of uncertainty for their future, but [it] also leaves them with a high degree of stigma and shame," she said.
"[It's] as though Australia, through this policy, is saying that you are not worth the money that it may theoretically be to keep you here, or your contributions to Australia are not considered valuable enough.
"But on top of that, we don't see you … the person with disability or your loved one, as someone that we're able to support and nurture in this country."
*Name has been changed.
