The case of "Grein Sherlock v. Australia". Views of the Committee on the Rights of Persons with Disabilities dated March 19, 2021. Communication No. 20/2014.
In 2014, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
As seen from the text of the Views, the author claimed that the State party violated her rights under articles 4 (subparagraphs "a"- "e" of paragraph 1), 5 (paragraph 2) and 18 (paragraph 1) of the Convention. She claims that by applying for migration to the State party, she came under its jurisdiction in connection with her visa application. Thus, the State party is obliged to consider her visa application without discrimination. She also argues that, in accordance with articles 4 (paragraphs 1 (a) to (e)), 5 (paragraph 2) and 18 (paragraph 1) of the Convention, the State party is obliged to take all appropriate measures, including legislation, to prohibit discrimination on the basis of disability and to ensure effective legal protection against discrimination according to all indications with regard to the right to freedom of movement and freedom to choose one's place of residence (paragraph 3.1 of the Considerations).
The Committee's legal position: article 18, paragraph 1 (b), of the Convention on the Rights of Persons with Disabilities provides for the right of persons with disabilities to freedom of movement, freedom to choose their place of residence and citizenship on an equal basis with others, including by ensuring that they can take advantage of immigration procedures that may be necessary to facilitate the exercise of the right to freedom of movement. The Committee therefore considers that, in the light of article 18, paragraph 1 (b), of the Convention, article 1, paragraph 1, of the Optional Protocol should be interpreted as extending the jurisdiction of the State party to its relevant procedures, including immigration. Thus, the Committee concluded that the author was under the jurisdiction of the State party (paragraph 7.4 of the Views).
Although the Convention as a whole and its article 18 in particular do not create any new rights, they nevertheless extend the obligation to protect existing rights to immigration procedures (paragraph 7.6 of the Considerations).
According to article 2 of the Convention, "discrimination on the basis of disability" means any distinction, exclusion or restriction on the basis of disability, the purpose or result of which is to diminish or deny the recognition, realization or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation. The Committee also recalls that a law applied in a neutral manner may have a discriminatory effect if the special circumstances of the individuals to whom it applies are not taken into account. The right not to be discriminated against in the enjoyment of the rights guaranteed by the Convention may be violated if the State, without objective and reasonable grounds, does not treat differentially persons whose situation is significantly different (Case "H.M. v. Sweden" (CRPD/C/7/D/3/2011), paragraph 8.3.). The Committee points out that in cases of indirect discrimination, laws, policies or practices that at first glance seem neutral have a disproportionately negative impact on persons with disabilities. Indirect discrimination occurs when an opportunity that seems to be available turns out to be inaccessible in practice for some people due to the fact that their status does not allow them to take advantage of such an opportunity. The Committee notes that treatment is indirectly discriminatory if the negative consequences of any decisions or decisions affect exclusively or disproportionately persons belonging to a particular race, skin color, gender, language, religion, political or other beliefs, national or social origin, property status, place of birth and other grounds (See, for example, the case of Althammer et al. v. Austria (CCPR/C/78/D/998/2001), paragraph 10.2.). In accordance with paragraphs 1 and 2 of article 5 of the Convention, States parties are obliged to recognize that all persons are equal before the law and have the right to equal protection of the law and equal use of it without discrimination; prohibit any discrimination on the basis of disability and guarantee persons with disabilities equal and effective legal protection against discrimination on absolutely any ground (paragraph 8.5 Considerations).
Before considering whether the refusal to issue a work visa to the author on the basis of her multiple sclerosis constituted discrimination on the basis of disability, the Committee had to determine whether such a situation could be considered as having a disability. In this regard, the Committee recalls that, according to article 1 of the Convention, persons with disabilities include persons with persistent physical, mental, intellectual or sensory disabilities, which, when interacting with various barriers, may interfere with their full and effective participation in society on an equal basis with others. The Committee considers that the difference between illness and disability is a difference in degree, not a difference in essence. A health disorder initially perceived as a disease can develop into a health disorder in the context of disability due to its duration or chronic nature. In accordance with the human rights model of disability, it is necessary to take into account the diversity of persons with disabilities and the interaction that occurs between people with disabilities and relational and environmental barriers (paragraph 8.6 of the Considerations) (See the case "S.K. v. Brazil" (CRPD/C/12/D/10/2013), paragraph 6.4.).
Although not every difference in treatment constitutes discrimination, provided that the criteria for such a difference are reasonable and objective, and the goal is to achieve the goal that is allowed under the Convention, "failure to end differential treatment based on insufficient available resources is not an objective and reasonable excuse unless every effort is made to using all the resources available to the State party in an attempt to address the problem of discrimination and eliminate discrimination as a matter of priority" (paragraph 8.7 of the Views).
The Committee's assessment of the factual circumstances of the case: in connection with the author's complaints under articles 4 (subparagraphs "a") - "e" of paragraph 1), 5 (paragraphs 1 and 2) and 18 (paragraph 1) of the Convention on the Rights of Persons with Disabilities, the issue before the Committee was whether migration was The health requirement in accordance with criterion 4006A contained in the Migration Rules of 1994 is a violation of the author's rights under the Convention. The Committee noted that, in accordance with the above-mentioned criterion, applicants for a subclass 457 visa who do not meet the health requirement can be exempted from this requirement only after submitting an obligation from their employer to cover medical expenses. It took note of the author's argument that the health requirement constituted an obstacle for persons with disabilities to exercise the right to use immigration procedures on an equal basis with others, in violation of article 18 of the Convention. It also took into account the State party's arguments that applicants for almost all Australian temporary visas are subject to the same health requirements; thus, all applicants for a subclass 457 visa are assessed according to the same criterion without differential treatment; this requirement can be waived if the employer undertakes to cover all medical expenses (paragraph 8.2 of the Considerations).
As follows from the text of the Considerations (paragraph 2.3), all applicants for a subclass 457 visa must meet the health requirement in accordance with the public interest criterion 4006A, which is prescribed in the Migration Rules of 1994 and provides that the applicant must not have a disease or condition in connection with which he or she is likely to, will need medical or community services during the validity period of the visa in the circumstances, when providing such treatment would entail "significant costs to the Australian authorities or infringe on the right of an Australian citizen or permanent resident to access medical care."
The information provided by the parties does not prevent the Committee from deciding that the physical impairment of the author's health in interaction with barriers really prevented her from fully and effectively participating in society on an equal basis with others (paragraph 8.6 of the Considerations).
The Committee stressed that the very fact that the author had multiple sclerosis led to her failure to comply with the health requirement, which prevented her from obtaining the work visa necessary to travel to Australia and to take up the position for which she had been selected earlier. This is contrary to the Convention, since the State party has focused on the individual, rather than on the relational and environmental barriers that impede the full and effective participation of persons with disabilities in society on an equal basis with others. The Committee noted: in this context, the State authorities focused on the potential cost of the medical treatment that the author required, and that at the moment when the author was identified as a person with multiple sclerosis, her visa application was rejected. The competent authorities did not take into account, in particular, the author's full ability to perform functions corresponding to the position to which she was chosen; the consequences of such refusal for her personal and professional life; as well as the alternatives she proposed to ensure that the treatment she needed did not create a financial burden for the State party. Instead, the State party shifted all responsibility for the potential financial consequences of the author's presence in the State party to the employer company. In view of the above, the Committee considered that in this case the author's application for a work visa was rejected solely on the basis of her multiple sclerosis, without further consideration, and that the migration requirement for health under the Migration Act thus had a disproportionate impact on the author as a person with disabilities and subjected her to indirect discriminatory treatment (paragraph 8.7 of the Views) (See also Domina and Max Bendtsen v. Denmark (CRPD/C/20/D/39/2017), paragraph 8.5.).
The Committee summarized: the decision of the national authorities that the author did not satisfy the requirement for a subclass 457 visa on the basis of her diagnosis of multiple sclerosis, taken without taking into account any other circumstances of her personal and professional situation, constituted indirect discrimination on the basis of disability (paragraph 8.8 of the Views).
The Committee's conclusions: the result of the application of the Migration Rules of 1994 was the diminution or denial of the realization or exercise of the author's right to use immigration procedures on an equal basis with others in violation of her rights in accordance with subparagraphs "a" - "e" of paragraph 1 of article 4 and paragraphs 1-2 of article 5, considered separately and in conjunction with paragraph 1 Article 18 of the Convention.