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Submission to the Royal Commission Into Violence, Abuse, Neglect and Exploitation of People with Disability

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Submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability Submission on laws, policies and practice affecting migrants, refugees and citizens from culturally and linguistically diverse backgrounds January 2021 Sydney Centre for International Law The University of Sydney Law School Building (F10) Camperdown Campus, The University of Sydney NSW 2006 [email protected] With Macquarie Law School Social Justice Clinic About the Sydney Centre for International Law The Sydney Centre for International Law (SCIL) was established in 2003 as a centre of excellence in research and teaching in international law. The centre fosters innovative, interdisciplinary scholarship across the international legal field, and also provides an avenue for the public to access international legal expertise. It operates within the University of Sydney Law School, building upon its well-recognised history of strength in this area. This submission was prepared by the following SCIL interns under the supervision and with the assistance of SCIL Director Professor Mary Crock. Parts 1 – 3; Part 10 Sarah Charak*; Wendy Chen*; Angus Chen*; Sherry Xueyi Jin; John McCrorie*; Leah Park; Rachel Sun*; Emma Louise Tirabosco;* Siobhan Walsh; Frank Gang Yang. Parts 4 - 6 Freya Appleford*; Sarah Charak; Angus Chen; Jake Jerogin*; Emma Kench*; Maxine McHugh; Miranda Hutchenson; Anton Nguyen*; Alexandra Touw; Jiann Yap; Alan Zheng*; Kevin Zou*; Part 7 Jess Mitchell*; Anisha Gunawardhana*; Part 8 Mary Crock; Olivia Morris; Part 9 Mary Crock with Macquarie University Law School Social Justice Clinic and the National Justice Project– Associate Professor Daniel Ghezelbash; Thomas Boyes, Sarah Croake, Jemy Ma; and Sara Hakim* (as a volunteer at the National Justice Project). *Lead writers Acknowledgments Case study assistance was provided by Ali Battison of Human Rights for All; Ariane Dozer and George Newhouse of National Justice Project; and Omid Tofighian. The authors also wish to acknowledge the assistance provided by Professor Emeritus Ron McCallum AO, Associate Professor Daniel Ghezelbash, Rebecca Brown, Grant Kynaston, Omid Tofighian, Linda Tucker, Dr Rosemary Grey and Professor Ben Saul in reading parts (or all!) of this submission. Special Thanks to Jess Mitchell for formatting the final document. 1 TABLE OF CONTENTS EXECUTIVE SUMMARY AND RECOMMENDATIONS ............................................ 5 Introduction ............................................................................................................. 5 Recommendations ................................................................................................ 14 PART I: INTERNATIONAL LEGAL FRAMEWORKS ............................................. 20 A Introduction .................................................................................................... 20 B Admission Of Migrants .................................................................................. 24 C Entitlements After Entry ............................................................................... 276 D Immigration Detention And Asylum Seekers ................................................. 30 E Offshore Processing Of Asylum Claims ......................................................... 33 PART II: MIGRANTS, DISABILITY AND THE HEALTH RULES ........................... 35 A The Health Criteria ........................................................................................ 35 B Health And Disability ..................................................................................... 40 C How The Migration Health Rules Can Cause Abuse And Neglect................. 43 D Conclusions And Recommendations ............................................................. 45 PART III: ENTITLEMENTS AFTER ENTRY ............................................................ 46 A Entitlement To Social Security ....................................................................... 46 B Waiting Periods ............................................................................................. 51 C Entitlement To The National Disability Insurance Scheme ............................ 53 D Covid-19 And Entitlements ............................................................................ 53 Recommendations: ............................................................................................... 61 PART IV: ‘CRIMMIGRATION’ LAW AND DISABILITY .......................................... 62 A Visa Cancellations And Disability .................................................................. 62 B Deportation, Disability And International Law ................................................ 68 C Conclusion ..................................................................................................... 81 PART V: DISABILITY AND WRONGFUL IMMIGRATION ENFORCEMENT ......... 82 A Disability And Arrest And Removal Laws ...................................................... 82 B The Faultline Cases ....................................................................................... 84 C Reforms Following Inquiries By Comrie And Palmer ..................................... 88 D Recent Cases ................................................................................................ 91 E Implications.................................................................................................... 93 Recommendations ................................................................................................ 94 2 PART VI: DISABILITY AND MANDATORY IMMIGRATION DETENTION ............. 94 A Disability And The Evolution Of Immigration Detention Laws ........................ 95 B The Incidence Of Disability In Immigration Detention .................................. 100 C How Disability Is Identified In Immigration Detention Populations ............... 105 D Accommodation Of Persons With Disabilities In Immigration Detention ...... 109 E Causation And Exacerbation Of Disability ................................................... 113 PART VII: CHILDREN, DISABILITY AND IMMIGRATION DETENTION .............. 116 A Australia’s Obligations Under International Law .......................................... 117 B Failure To Treat = Failure To Thrive ............................................................ 120 C Immigration Detention Causes Disability In Children ................................... 121 D Conclusion ................................................................................................... 124 E Case Studies ............................................................................................... 125 PART VIII: DISABILITY AND THE ‘LEGACY CASELOAD’ REFUGEES............. 137 A Who Is Included In The ‘Legacy Caseload’ Cohort? .................................... 137 B Persons With Disabilities In The Legacy Caseload ..................................... 139 PART IX: DISABILITY, OFFSHORE PROCESSING AND THE ‘MEDEVAC’ REFUGEES ........................................................................................................... 144 A Legal Frameworks ....................................................................................... 145 B Harms Associated With The Front-End Stage Of Offshore Processing ....... 150 C Harms Associated With Offshore Processing .............................................. 154 D Harms Experienced By Transitory Persons Returned To Australia ............. 158 PART X: AUSTRALIA’S RESPONSE TO MIGRANTS WITH DISABILITIES IN THE COVID 19 PANDEMIC ........................................................................................... 163 A Introduction: Hotel Detention And Disability ................................................ 164 B Australia’s Duty Of Care To Non-Citizens Subject To Immigration Control . 167 APPENDICES ........................................................................................................ 178 2-A: PIC 4005 And PIC 4007 .............................................................................. 178 2-B: Table Of Health Criteria For Current Visa Subclasses ................................ 181 2-C: Changes In The “Significant Cost” Threshold ............................................. 188 2-D: Minister’s Guidelines On Ministerial Powers ............................................... 192 3: Summary Of Healthcare Entitlements ............................................................. 193 6-A: Incidence Of Disability In Immigration Detention ......................................... 197 3 6-B: Overview Of Case Studies .......................................................................... 200 6-C: Health Care Entitlements For Detainees With A Disability Under International Law ..................................................................................................................... 208 6-D: Australian Border Deaths Annual Report 2019 ........................................... 211 4 EXECUTIVE SUMMARY AND RECOMMENDATIONS INTRODUCTION This submission examines the intersection in Australian law, policy and practice between immigration, cultural and linguistic diversity (CALD) and disability. The topic is one of panoramic proportions. The Australian Bureau of Statistics (ABS) reports that in the 2016 census, over 28 percent of Australians were born overseas. In that year it was estimated that as much as 11 percent of the Australian workforce were temporary migrant workers. Migrants who transition to become Australian citizens meld into the general populations
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