The case is "Grein Sherlock v. Australia". The Committee's views of March 19, 2021. Communication No. 20/2014.
In 2014, the author of the communication was assisted in the preparation of complaints. Subsequently, the complaint was communicated to Australia.
The decision of the national authorities that the author did not satisfy the visa requirement due to her diagnosis of multiple sclerosis, which was taken without taking into account any other circumstances of her personal and professional situation, constituted indirect discrimination on the basis of disability. The Convention on the Rights of Persons with Disabilities has been violated.
As seen from the text of the Views, the author claimed that the State party had violated her rights under articles 4, 5 and 18 of the Convention. She indicated that by applying for permission to enter Australia, she had come under its jurisdiction in connection with her visa application. Thus, the State party was obliged to consider her visa application without discrimination. In the complainant's view, the State party was also obliged to take all appropriate measures, including legislation, to prohibit discrimination on the basis of disability and to ensure effective legal protection against discrimination on all grounds in relation 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 assessment of the factual circumstances of the case: the issue before the Committee was whether the migration requirement for health in accordance with criterion 4006A contained in the Migration Rules of 1994 was 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 the costs of medical care. The Committee 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 Committee decided 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 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 a 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 Considerations).
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: violations of articles 4, 5 of the Convention, considered separately and in conjunction with paragraph 1 of article 18 of the Convention, have been committed.