Systemic barriers to disability diagnosis for refugee students | External submission

SUBMISSION TO THE REVIEW OF THE DISABILITY DISCRIMINATION ACT 1992

Submitted by: River Nile School

redacted Contact: Charles Hertzog, Principal Date: 19 November 2025

ABOUT RIVER NILE SCHOOL

River Nile School is an independent secondary school in North Melbourne serving young women from refugee and asylum seeker backgrounds. Operating from two campuses at 117 and 182 Capel Street, we currently support 141 students with 45 staff and an annual budget of $7 million. Our students come from diverse backgrounds including Afghanistan, South Sudan, Eritrea, Myanmar, and other countries experiencing conflict and persecution. Our students are aged between 15-24.

Our school exists because mainstream educational settings often cannot meet the complex needs of young people who have experienced significant trauma, disrupted education, and the challenges of forced displacement. Many of our students arrive with undiagnosed or undocumented disabilities, particularly psychological disabilities such as Post-Traumatic Stress Disorder (PTSD), anxiety disorders, and cognitive impacts from trauma and interrupted education.

EXECUTIVE SUMMARY

The current Disability Discrimination Act, while broad in its definition of disability, fails in practice to protect one of Australia’s most vulnerable populations: refugees and asylum seekers with disabilities. This submission identifies critical gaps in how the Act operates for refugee communities and proposes specific reforms to ensure these young people can access the protections and accommodations they need and deserve.

Key recommendations:

Introduce provisions for “imputed disability” recognition based on professional assessment without requiring formal diagnosis
Establish trauma-informed evidentiary standards that account for barriers faced by refugee communities
Mandate proactive identification duties for educational institutions serving refugee students
Create culturally responsive assessment pathways that acknowledge different conceptualisations of disability
Implement interim protection mechanisms while formal diagnoses are pursued

THE INVISIBLE DISABILITY GAP: HOW THE DDA FAILS REFUGEE STUDENTS

1. The Documentation Paradox

The Disability Discrimination Act’s definition of disability is appropriately broad and does not require formal diagnosis. Section 4 defines disability to include disorders affecting thought processes, perception of reality, emotions or judgment. However, in practice, educational institutions and other duty holders typically require formal diagnostic evidence before providing accommodations or accessing necessary funding and services.

For refugee students, this creates an impossible paradox:

They may have disabilities (trauma-induced psychological conditions, anxiety disorders, cognitive impacts from disrupted education, or disabilities from birth that have not been identified) that would qualify for protection under the Act.

However, they face systemic barriers to obtaining formal diagnoses:

Language barriers in clinical assessment settings
Lack of interpreters trained in mental health terminology
Cultural stigma around mental health and disability
Distrust of institutional systems (medical, educational, governmental) due to past persecution
Financial barriers to assessment and diagnosis
No documentation trail from countries of origin
Different cultural frameworks for understanding psychological distress
Trauma symptoms that make it difficult to articulate experiences coherently
Extended asylum processing creating instability that prevents consistent healthcare engagement

2. The Cultural Displacement of Disability Concepts

Western diagnostic frameworks do not align with how many refugee communities understand and express psychological distress. Research shows that:

Somatic complaints may be the primary expression of psychological trauma
Concepts like “PTSD” or “anxiety disorder” may not exist in a student’s home culture
What Australian clinicians identify as disability may not be understood through spiritual, social, or community frameworks
The act of seeking diagnosis itself may be culturally inappropriate or shameful
“Coming out” as disabled is a Western concept not universal across cultures

A student who cannot sleep, cannot concentrate, experiences intrusive memories of violence, and becomes paralysed with fear in crowded spaces clearly has a disability under the Act. Yet if she cannot articulate this in ways that fit diagnostic criteria, or if her family considers seeking psychiatric help as shameful, she may never receive formal recognition.

3. The Burden Falls on Those Least Able to Bear It

The current system places the burden of proof on students and families who are:

Navigating a new country and language
Dealing with ongoing trauma
Often in precarious visa situations
Lacking financial resources
Unfamiliar with Australian systems
Already carrying immense advocacy burdens across multiple domains (housing, income support, asylum processes)

We regularly encounter situations where:

A student clearly exhibits symptoms of PTSD but the family cannot afford the large funds+ for comprehensive psychological assessment
We support a person through the process with a psychologist who agrees the test results show there is a very likely an intellectual disability, but lacks the family history to make that formal diagnosis
A student has been diagnosed in another country but records were lost during flight or passage
A student requires immediate accommodations but the 6-8 month waitlist for public mental health assessment means she faces failure or exclusion in the interim
A family refuses psychiatric assessment due to cultural beliefs, yet the student’s disability significantly impacts her education

CURRENT CONSEQUENCES: DISCRIMINATION WITHOUT RECOURSE

This documentation gap has serious consequences:

Exclusion from support: Students who clearly have disabilities are denied accommodations and funding because they lack formal paperwork and diagnoses. They fail subjects they could pass with support. They disengage from education entirely.

Discrimination without remedy: When these students face discrimination, they cannot effectively claim protection under the Act because they cannot “prove” their disability status, even though the disability is observable and real.

Compounding disadvantage: The students who most need protection from discrimination are systematically excluded from that protection by barriers the Act does not acknowledge or address.

Institutional risk-aversion: Schools become reluctant to provide accommodations without formal diagnoses, fearing they will be accused of lowering standards or creating precedents, even when professional judgment clearly indicates disability.

Resource misalignment: Significant resources are spent on diagnostic gatekeeping rather than on actual support and accommodation.

Allied Health and Specialists don’t get funding for interpreters so they reluctantly take on these patients.

PROPOSED REFORMS: MAKING THE DDA WORK FOR REFUGEE COMMUNITIES

Reform 1: Imputed Disability Recognition

Amend the Act to explicitly allow for “imputed disability” status based on professional assessment by qualified practitioners (teachers, school psychologists, social workers, settlement workers) without requiring formal medical or psychological diagnosis. This process occurs in NCCD processes, but needs to be applied outside of these confines.

Implementation:

Educational institutions serving refugee and asylum seeker populations may recognise a student as having a disability based on: observable functional impacts on educational participation; professional assessment by school-based practitioners; documented accommodations or interventions being provided; pattern of symptoms consistent with recognised disabilities
This recognition would trigger the same protections and accommodation duties as formal diagnosis
Formal diagnosis would be pursued where possible, but lack of diagnosis would not prevent interim protection
The standard would be “reasonable grounds to believe a disability exists” rather than “proven diagnosis”

Rationale: This aligns with the Act’s statement that disability does not require formal diagnosis, but makes this operational in practice. It recognises that qualified professionals can identify disability without conducting formal diagnostic assessments.

Reform 2: Trauma-Informed Evidentiary Standards

Create specific evidentiary provisions for refugees and asylum seekers that acknowledge systemic barriers to documentation.

Implementation:

Accept as evidence of disability:

Credible reports from settlement workers, teachers, or support workers
School-based functional assessments
Records of accommodations provided
Country-of-origin information about trauma exposure
Reports from overseas practitioners (even without formal translation)
Statutory declarations from family or community members
Evidence of participation in trauma services
Primary health assessment through refugee health services who know this cohort including GP’s, nurses and allied health practitioners

Prohibit adverse inferences from:

Lack of formal diagnosis
Inconsistencies in accounts (recognising trauma affects memory and narrative coherence)
Delayed disclosure of disability
Gaps in medical history
Inability to provide documentation from country of origin

Rationale: This recognises that refugees often have “credibility gaps” through no fault of their own and adjusts evidentiary standards accordingly, similar to approaches used in refugee status determination.

Reform 3: Proactive Identification Duty

For educational institutions serving students from refugee and asylum seeker backgrounds, introduce a positive duty to proactively identify and respond to likely disabilities.

Implementation: Schools must:

Conduct trauma-informed intake assessments
Train staff to recognise trauma and disability manifestations
Create low-barrier pathways to housing
Provide interim support while formal assessment is pursued
Not require formal diagnosis before providing reasonable adjustments
Document functional impacts and accommodations provided
Actively assist families in accessing diagnostic services where appropriate

This duty applies when schools know or ought reasonably to know that students come from refugee/asylum seeker backgrounds, have experienced trauma or disrupted education, or exhibit functional impacts consistent with disability.

Rationale: This shifts from reactive complaint-based enforcement to proactive prevention, particularly important for students and families who lack capacity to advocate for themselves.

Reform 4: Culturally Responsive Assessment Pathways

Establish alternative pathways for disability recognition that account for cultural differences in understanding and expressing disability.

Implementation:

Recognise culturally specific expressions of psychological distress as disability evidence
Allow assessment in student’s first language with cultural interpreters
Accept evidence from practitioners familiar with refugee mental health
Create specialised assessment pathways for refugee populations
Fund culturally responsive assessment services
Train assessors in trauma-informed, culturally responsive practice

Rationale: Valid assessment requires cultural competence. Current diagnostic frameworks may fail to identify real disabilities when cultural context is not understood.

Reform 5: Interim Protection Mechanisms

Create explicit interim protection for students with likely but undiagnosed disabilities while formal assessment is pursued.

Implementation: Students with observable functional impairments would receive:

Automatic interim reasonable adjustments
Protection from discrimination based on likely disability
Time-limited accommodation (e.g., 12 months) to pursue formal diagnosis
School support in accessing assessment services
Right to have accommodations continued if diagnosis is confirmed OR if functional impairment continues regardless of diagnostic outcome

Schools would be protected from liability when providing interim accommodations in good faith based on professional judgment.

Rationale: Waiting 6-12 months for diagnosis while a student fails or is excluded is unacceptable. Interim protection prevents irreversible harm while formal processes occur.

INTERSECTION WITH PROPOSED POSITIVE DUTY REFORMS

The proposed introduction of positive duties for duty holders to eliminate disability discrimination aligns strongly with our recommendations. For refugee-serving institutions, positive duty must specifically include:

Proactive identification of likely disabilities
Removal of documentation barriers to accommodation
Training in trauma-informed disability recognition
Creation of low-barrier pathways to support
Cultural competence in disability assessment and response

However, positive duty alone will not address the fundamental documentation gap unless paired with reforms to evidentiary standards and recognition of imputed disability.

CASE EXAMPLES FROM RIVER NILE SCHOOL

Case 1: Amira (name changed)

Amira arrived from Afghanistan at age 16 having witnessed her father’s redacted. She exhibits clear PTSD symptoms: hypervigilance, cannot tolerate loud noises, intrusive memories, difficulty concentrating, sleep disturbance. Her mother refuses to take her to a psychiatrist, viewing mental illness as shameful. Without formal diagnosis, should Amira be denied funding, accommodations and supports outside of school? reform would say no: professional judgment of functional impact is sufficient for protection.

Case 2: Fatima (name changed)

Fatima has difficulty with reading comprehension and memory far beyond what language acquisition explains. Teachers suspect learning disability, possibly from limited early education combined with trauma. The family has no Medicare and cannot afford private assessment. The public system has a 10-month wait. Fatima is currently failing. Our reform would allow the school to provide accommodations based on teacher assessment immediately, while supporting the family to access formal diagnosis.

Case 3: Jasmin (name changed)

Jasmin was diagnosed with depression and anxiety in Kenya. She has a letter from a practitioner, but it’s not on official letterhead and there’s no diagnostic code or formal report. Australian practitioners question its validity. Jasmin deteriorates while waiting for re-assessment in Australia. Our reform would accept the Kenyan documentation as prima facie evidence, triggering accommodation obligations immediately.

THE BROADER SIGNIFICANCE: INTERSECTIONALITY AND MULTIPLE MARGINALISATIONS

Refugee students with disabilities experience intersecting forms of disadvantage:

Discrimination based on refugee status
Discrimination based on disability
Often also face discrimination based on race, religion, gender
Compounded by poverty, language barriers, uncertain immigration status

The DDA must account for how these marginalisations interact. A reform that works for Australian-born students with well-documented disabilities will fail refugee students without specific provisions addressing their unique barriers.

This is not about creating special treatment. It is about ensuring equal protection by removing systemic barriers that currently exclude the most vulnerable from the Act’s coverage.

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CONCLUSION AND RECOMMENDATIONS

The Disability Discrimination Act’s broad definition of disability is rendered meaningless for refugee students when operational practice demands documentation these students cannot obtain. This creates a two-tier system where Australian-born students can access protection while refugee students with identical disabilities cannot.

This is not merely an implementation gap. It is a fundamental design flaw that requires legislative reform.

River Nile School urges the review to adopt the following reforms:

Amend the Act to explicitly allow “imputed disability” recognition based on professional assessment without formal diagnosis
Create trauma-informed evidentiary provisions specific to refugee and asylum seeker populations
Establish proactive identification duties for institutions serving refugee communities
Mandate culturally responsive assessment pathways
Implement interim protection mechanisms while formal diagnosis is pursued
Ensure positive duty reforms specifically address documentation barriers for refugee populations
Clarify that the Disability Standards for Education operate without formal diagnosis requirements
Fund specialised assessment services for refugee populations
Require training in trauma-informed disability identification for educators
Establish clear guidance for institutions on recognising disability in refugee contexts

These reforms would not create special treatment. They would ensure equal treatment by acknowledging and addressing systemic barriers that currently exclude refugee students from the Act’s protection.

The students we serve have already overcome extraordinary challenges. They deserve an education system—and a legal framework—that recognises their strengths while accommodating their needs, without requiring them to first overcome additional bureaucratic barriers that their Australian-born peers do not face.

We strongly encourage the review committee to consult directly with:

Schools and organisations serving refugee students
Settlement service providers
Refugee mental health practitioners
Refugee advocacy organisations
Refugee communities themselves

Their expertise is essential to designing reforms that actually work in practice.

River Nile School is available to provide further information, case examples, or testimony as needed to support these reforms.

Thank you for the opportunity to contribute to this important review.

CONTACT INFORMATION

Charles Hertzog Principal and CEO River Nile School