Asylum seekers facing court without help

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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One comment

  1. This report is further evidence of the Kangaroo Court approach to refugee processing which consigns asylum seekers refugee processing to pot luck.

    People in isolated locations are struggling to get a fair go.

    Lawyers are doing this work pro bono (free) on top of their everyday workload.

    The problem is that political imperatives dictate that asylum seekers are almost universally refused by the department at the first stage and are then passed on to the IMR (Independant Merits Review) for a review of the first decision.

    A look at the stats verifies this statement:

    In 2009/2010 Hazaras (Afghan persecuted minority) were getting a positive decision at first stage in 99% of cases.

    This then dropped to 70% and then 30% in 2010/2011.

    Where was the evidence that Hazaras were experiencing a “golden age”as written in a department document to support knock backs?

    At the same time the international agencies research informed us that more civilians than ever were being killed by Taliban and Coalition forces.

    Hazaras were being disappeared and beheaded.

    The reports and evidence was publicly available but still Australian government persists with the fiction that Hazaras can go home and live safely and survive.