Regulating human worth: denying Australian residency to children living with a disability

1
Regulating human worth denying Australian
residency to children living with a disability

• Dr Kristin Natalier (Sociology,UTas)
• Dr Susan Harris Rimmer (RegNet, ANU)

2
Overview

• Aim exploring the construction of disability and
  childhood in migration policy and decisions
• Method Focus on the systems and administrative
  decisions of Australias Department of
  Immigration and Citizenship to deny temporary and
  permanent residence visas to children living with
  a disability on the basis of their potential
  demands on the health care and/or community
  services system.

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Two questions

• How is the social category of the disabled
  migrant child constructed through immigration
  systems?
• How does a human rights framework help us to
  understand and critique how Australias health
  requirement applies to non-citizen children with
  a disability?

4
Structure of talk

• A tale of two families Kiane and Moeller
• The law and policy of the health requirement and
  waiver
• Construction of the disabled child migrant
• Quantification and commensuration and discretion
• Health care and labour markets
• Human rights analysis the right to have rights
• Conclusions

5
Amun Kiane

• 8 yr old girl from Pakistan (high risk)
• Cerebral palsy costed by MoC as 450k then 750k
• Father onshore refugee
• Mother applicant
• 4 year decision process

6
Lukas Moeller

• 13 yr old boy from Germany (low risk)
• Downs Syndrome costed by MoC as 450k
• Father onshore Vic sponsored skilled visa
  doctor applying for permanent residency
• 1 month decision process

7
The law

• Objectives of the health requirement
• to protect the Australian community from public
  health and safety risks
• to contain public expenditure on health care and
  community services and
• to safeguard the access of Australian citizens
  and permanent residents to health care and
  community services in short supply.
• Source DIAC Procedures Advice Manual (PAM3),
  July 2006, p. 13, section 10.1.

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Rituals of comfort?

• Australias policy on who should receive a
  medical examination is, therefore, based on the
  level of health risk posed by visa applicants in
  terms of their country of origin, their expected
  length of stay in Australia, and their likely
  activities while they are here. (ANAO 2007)

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The Decision-making Process
Discretion to consider individual circumstance
Very limited discretion to consider individual
circumstance
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Disabled migrant child
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Doing things with numbers

• Quantification characteristics of any social
  phenomenon are translated into numbers
• Commensuration measuring objects within a
  common metric

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Uses of commensuration and quantification

• Buttress the authority of weak elites via
  mechanical objectivity (Porter 1995)
• Buttress bureaucracy (Weber)

• Response to inherent structural issue
• 2004 2005
• 4.5 m visa applications
• 405 000 medical examinations
• 4050 refused visa on health requirement grounds
• 150 granted health waiver

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Constructing the disabled migrant child

• Process of quantification and commensuration
• gtgt Individualised and medicalised
• gtgt Non-productive
• gtgt Health care markets

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Constructing the disabled migrant child waiver
considerations

• Medical and social care and services
• Education and occupational needs and prospects
• Potential for health to deteriorate
• Charge on public funds
• Willingness and ability of sponsor/ family/ other
  to provide care and support
• Location of relevant carers and the possibility
  of re-unification
• Presence of Australian children
• Merits of the case eg. the strength of
  humanitarian or compassionate factors

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Creative and symbolic power of numbers the
disabled migrant child

• Individualised and medicalised
• Non-productive
• Defined with reference to health care markets
• Dependent/ property of their parents
• Located within the family
• Silent and sometimes invisible
• A bad investment for the state

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The limits of numbers? waiver and discretion

• Mitigating the harshness and outcomes of
  mechanical objectivity?

• Location within the decision making processes
• Discretion in the context of organisational
  cultures

17
The limits of numbers? waiver and discretion

• Dual function of quantification
• Filter excludes and includes on the basis
  potentially ideal citizens
• Program of reassurance
• Meet concerns of direct discrimination
• Meet concerns that the right people are
  accepted.
• Meet concerns over the strength and constitution
  of the nation

18
Ministerial intervention

• Broad discretion
• As minister, I can take into account all the
  circumstances, and it was clear to me that Dr
  Moeller and his family are making a very valuable
  contribution to their local community. Dr Moeller
  is providing a much needed service in the area.
  The family have integrated very well and they
  have substantial community support, including of
  course from the Victorian Premier, their local
  member, Mr Forrest, and a range of
  parliamentarians. Their continued presence and
  contribution to Australia will be beneficial to
  our society and I am pleased that they have
  chosen to call Australia home. I wish to express
  my regret at the distress this has caused Dr
  Moeller and his family and I look forward to them
  becoming citizens. (Senator Evans)

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Human Rights Black Spots

• Australia signatory to
• Convention on the Rights of the Child
• Convention on the Rights of People with
  Disabilities (reservation, DDA s52)
• 1951 Refugee Convention
• Family life ICCPR/ICESCR

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Rights of Alien/non-citizens

• Catherine Dauvergne Making People Illegal
• Margaret Somers - the right to have
  rights(Genealogies of Citizenship)

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Rights of People with Disabilities

• Peter Blanck - the right to live in the world
• Soldatic and Fiske Australian immigration
  history

22
Childrens rights

• Martha Minow two track rights
• Sharon Bessell and Tali Gal the right to be
  heard

23
Amun Kiane

• Perfect storm of excluding characteristics
• Weakness of current human rights system
• But also way forward worthiness, capacity and
  advocacy
• Difference-centred citizenship

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Limited Reform Focus

• Productivity Commission report DDA
• ANAO Report 2007
• Commonwealth Ombudsman report (Kiane) 2001
• Forthcoming Joint Standing Committee inquiry into
  health requirement

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Joint Standing Committee on Migration Inquiry
draft TORs

• The draft terms of reference are
• 1. Report on the options to properly assess the
  economic and social contribution of people with a
  disability and their families seeking to migrate
  Australia.
• 2. Report on the impact on funding for, and
  availability of, community services for people
  with a disability moving to Australia either
  temporarily or permanently.
• 3. Report on whether the balance between the
  economic and social benefits of the entry and
  stay of an individual with a disability, and the
  costs and use of services by that individual,
  should be a factor in a visa decision.
• 4. Report on how the balance between costs and
  benefits might be determined and the appropriate
  criteria for making a decision based on that
  assessment.
• 5. Report on a comparative analysis of similar
  migrant receiving countries

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Conclusions

• Disabled migrant child subject to Australian
  policy embody a challenge to one of the key
  directives to modernity the control and
  planning of society through quantification and
  commensuration
• Rights discourse offers an alternative frame to
  market logic

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Structures of class and ethnicity

• Class
• Preferences for skilled migrants (and
  international students)
• Resources of family or sponsor
• Contribution of parents

• Ethnicity
• Priority skills more likely to be gained in
  developed countries/ by people in middle and
  upper classes in developing co untires
• Resources to apply, appeal in developed countries
• High risk countries for the health matrix

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Ethnicity, class and ability

• The good citizen in embodied as male, white,
  active, fit and able, in complete contrast to the
  unvalued, inactive, disabled other. (Meekosha
  and Dowse 1997).
• The concept of a disabled citizen could be
  described as a contradiction in terms (Meekosha
  and Dowse 1997).