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Locked out: Australian study visas and the international student with disabilities

International students with significant health needs or disabilities could be restricted from studying in Australia because of regulations around who pays for the cost of their care, despite the fact that all temporary residents are banned from accessing public health care services anyway.

International students who are estimated to be a significant cost to the Australian community are refused entry to Australia, despite not being able to access taxpayer funding.International students who are estimated to be a significant cost to the Australian community are refused entry to Australia, despite not being able to access taxpayer funding.

A PhD student was told his son could not remain in Australia because he had Down's syndrome

The claim, made by Estrin Saul Lawyers’ disability and health specialist Jan Gothard, refers to Public Interest Criteria 4005 of Australia’s migration regulation, requiring visa holders meet certain health requirements.

“In practice, [international students] cannot access those services. You cannot be a cost to the community”

The criteria are used to ensure Australian citizens’ interests are considered when someone enters the country – visa applicants cannot be placed on the organ donor list or suffer from severe communicable diseases, for example.

Gothard has noted a stipulation that temporary residents cannot be a “significant cost to the Australian community in the areas of health care and community services”, but this ignores the requirements and entitlements of study visas.

“In practice, [international students] cannot access those services. You cannot be a cost to the community,” explained Gothard.

“An individual must be costed regardless of whether they’re going to use the services or not, regardless of whether they’re entitled to use those services. That’s the way the regulations work.”

Australian study visa holders must cover their healthcare and education costs and the costs of their dependents, as well as maintain overseas student health cover. Failure to show sufficient ability to cover costs results in DIBP not issuing or cancelling a visa.

“It’s not logical,” Gothard told The PIE News, adding that most students were also unable to apply for a waiver like some other visa categories, leaving them with “no space” to argue against a decision to reject a visa application on grounds of likely healthcare costs.

“The next Stephen Hawking could well be an international student who just requires that bit of encouragement from access to an internationalised curriculum”

So far, the apparent oversight seems to only affect those with significant disabilities or health issues, which Gothard first became aware of after representing a PhD student who was told his son could not remain in Australia because he had Down’s syndrome.

The son’s special education was costed above the permitted amount (currently limited to $40,000), even despite all expenses being covered by a scholarship the student had received from their home country.

The case highlighted a further “absurdity” of the requirement, Gothard said.

Costs cannot exceed $40,000 for the duration of the visa regardless of its length. If, for example, health care and services are estimated at $15,000 per year, a visa applicant on a one-year visa will be permitted into Australia, while an applicant on a three-year visa will be determined to have exceeded the allowed amount.

The appeals process to allow the son to remain in Australia dragged on long enough for the remaining period of the visa to shorten enough for the cumulative services estimate to drop below the limit, allowing him to stay in Australia.

To date, Gothard, who is also an adjunct law professor at Murdoch University, said she was only aware of cases where the dependents of visa applicants had been blocked from entering Australia, but said applicants themselves could also be blocked.

That situation appears to be relatively unusual, with education agents contacted by The PIE saying they were unaware of circumstances in which students had been blocked because of a community cost assessment or of the assessment itself.

ISANA president Mary Ann Seow said providers were unlikely to be aware as well, and therefore unable to provide adequate pre-departure services to prospective students.

“There have been several instances where visa applications are rejected and unless the potential student advises the provider, that information is not shared with the provider,” she said, calling on DIBP to provide further information on why visas were rejected.

“Educators need information on the reasons for visa rejection so that they can consider how an international student and dependents can be supported.

“International students with these circumstances should also be made aware that these special circumstances need to be shared with agents, sponsors and education providers and not at the point of a visa application.”

“Elected politicians in Australia are not likely to be motivated to proactively put supportive policies in place”

IEAA chief executive Phil Honeywood similarly expressed concerns with the requirement, telling The PIE the policy was a “stark contrast between reality winning out over rhetoric [of ‘equality of opportunity for all’]” and threatened to prevent talent before it started.

“Stephen Hawking is a great example of a brilliant mind and contributor to mankind who has had to fight to be better understood,” he said.

“Notwithstanding his severe disability, no one can deny his contribution to the world of science. The next Stephen Hawking could well be an international student who just requires that bit of encouragement from access to an internationalised curriculum to prove their creative worth.”

Surprisingly, the situation could be rectified fairly quickly, according to Gothard, who said a legislative instrument issued by immigration minister Peter Dutton could cease the practice of assessing services and health costs against a student’s visa applications.

“There is a precedent because there are some Commonwealth services which are not costed against temporary residents. That was done a few years ago on the basis that these temporary residents were not eligible for these services,” she said.

“That principle hasn’t been taken far enough.”

But Honeywood was pessimistic about the reality of that occurring and encouraged the industry to take the lead in helping international students with significant needs enter Australia.

“As international students do not vote and are perceived to be not paying taxes, elected politicians in Australia are not likely to be motivated to proactively put supportive policies in place. At the end of the day, any change to policy in this vexed area will need to come from the educators.”

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