Disability Discrimination Commissioner Ben Gauntlett says the Australian government's refusal to grant a visa to a six-year-old boy with cerebral palsy is a breach of its international obligations.
The ABC has reported the boy - Kayaan Katyal - was last month rejected for permanent residency because his disability would create "undue cost" for the Australian community.
Mr Gauntlett fronted Senate estimates on Tuesday evening, where he was asked about the government's handling of the case.
He said the rejection highlighted the need to reform the Migration Act to end discrimination against people with disability.
Disability Discrimination Commissioner Ben Gauntlett. Source: Supplied
"Mr Katal's case highlights, I think quite clearly, that we need reform of the Migration Act in this area - and I note for the record that this is something that Canada has done," he told the hearing.
about laws that make Australia's Migration Act exempt from the majority of discrimination provisions under the Disability Discrimination Act.
The Department of Home Affairs argues the migration policy assesses individuals based on the cost to the community and whether it would prejudice access to services in short supply.
However, Mr Gauntlett said the application of the policy against people with disabilities is contrary to the UN's Convention on the Rights of Persons with Disabilities.
"We would argue there is a very vital argument this is actually contrary to Article 18 of the right to persons with disabilities," he said.
"What we would say is [Australia's] interpretive declaration does not excuse this conduct."
Kayaan was born in Australia after his father migrated from India 12 years ago to study European cookery and work as a chef. Kayaan's mother Priyanka arrived in Australia eight years ago.
Last month, Kayaan received a rejection letter saying his permanent residency "would be likely to result in a significant, undue cost to the Australian community in the areas of health care and/or community services".
Greens Senator Jordan Steele-John - who himself has cerebral palsy - said he believed the government’s handling of the case raised deep concerns.
“It concerns me greatly that a child with cerebral palsy is facing deportation simply because of their disability,” he told the hearing.
“Our NDIS system now recognises that disability is not a drain on the health system."
Mr Gauntlett has urged Immigration Minister Alex Hawke to exercise his discretion in a “humane way” around Kayaan's case.
“[I] would hope that the the minister would understand the importance of exercising their discretion and waiving visa conditions in this instance,” he said.
A parliamentary report in 2010 recommended the government make it easier for people with disabilities to be granted visas.
Canada overhauled its Migration Act in 2018, after facing similar criticism.
In a similar case, the family of four-year-old Kayban Jamshaad have fought to allow their son, who has a brain injury, to stay in Australia.
The Administrative Appeals Tribunal last year asked the department to reassess the case.
A spokesperson for the Department of Home Affairs said it does not discriminate against applicants who have a disability and that its response is "pragmatic and balances compassion and cost containment".
"A disability in itself will not result in a failure to meet the health requirement," the spokesperson said.
"The current policy does not discriminate against applicants who have a disability or illness, or a combination of both, with all applicants being treated in an equal and fair manner."
The spokesperson said the Department does not comment on individual cases.
