Asylum seekers facing court without help

Author: Kirsty Needham

Asylum seekers are resorting to going to court without legal representation because there is no government funding for lawyers, despite the high rate at which courts are overturning refugee rejections.

Aslyum seekers are representing themselves in court as legal fees are not funded by the government. Photo: James Brickwood

The Federal Magistrates Court had to abandon a hearing in Sydney this month after a man detained in Pontville, Tasmania, filed an unintelligible application by fax and appeared by telephone.

Federal Magistrate Matthew Smith directed a lawyer be found for the asylum seeker, but even pro-bono agencies were unable to locate a barrister in Sydney to take the case.

The legal firm paid for by the immigration department to prepare the man’s initial refugee claim routinely drops its clients once they receive a rejection after the first review, because government funding ends at this point.

A humanitarian campaign by New South Wales and Victorian commercial law firms to fill the gap saw 40 asylum seekers last month accepted as pro-bono cases to be taken to the Federal Magistrate Court.

Katrina Ironside, principal solicitor of the Public Interest Law Clearing House, which is co-ordinating the campaign, said: “We are incredibly frustrated by this. We are asking the NSW and Victorian legal profession to do this on a pro-bono basis — but it’s a government responsibility. We don’t have any substantial funding for the project and our concern is we may have to stop.” The clearing house is industry-funded.

The High Court ruled in December 2010 that boat arrivals are entitled to access Australian courts when the immigration department rejects a claim for refugee status.

An independent report on the impact of the High Court decision warned the federal government last year that the Federal Magistrates Court may become flooded with applications from detainees in remote locations who are legally unrepresented and therefore disadvantaged, or the lack of legal advice may deter applications.

The report, by former Commonwealth Ombudsman John McMillan, advised the government against introducing a new legal assistance scheme to cover the asylum seekers’ court costs, and instead monitor the situation.

Ms Ironside said 95 barristers and 22 law firms had said they would donate their time to help asylum seekers reach court.

“It is clearly seen by the legal profession as an access to justice issue,” she said.

Magistrate Smith transferred the Pontville detainee’s case to Adelaide, where he now lives on a bridging visa, saying he was “hopeful that there may be an opportunity to find a lawyer in Adelaide”.

The federal government will scrap the immigration department’s separate system for assessing boat arrivals later this year, with the Refugee Review Tribunal to assess all cases instead.

The Greens, meanwhile, said yesterday they wouldn’t support a private member’s bill from NSW independent MP Rob Oakeshott to allow offshore processing in countries that have signed the Bali Process.

“Australia must continue assessing claims on shore because it’s the cheapest and only legally sound means of fulfilling our international obligations to guarantee the wellbeing and safety of people fleeing persecution,” said Greens Senator Sarah Hanson-Young.

The Coalition also opposes the bill.

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