Seeking Asylum

 In Firm News

The recent hunger strikes and wave of self mutilation amongst asylum seekers held in detention in Australia, has again brought both international exposure and condemnation to the Federal Government’s policies in relation to these people seeking refugee status.

Australia is the only country in the developed world which implements mandatory detention for all unauthorised arrivals, regardless of their personal circumstances, with no right of review to the Courts[1].

The Government appears to justify it’s stance of keeping such asylum seekers in captivity, on the supposed basis that it will deter other people from trying to enter Australia illegally[2]. To date there appears to be very little hard evidence that such a stance is having any effect, as boat loads of people continue to arrive in our territorial waters although more recently they have been taken by the Australian Navy to New Guinea or Nauru.

In any event, even if the Government’s policy was having an impact, the question arises as to the cost of this policy on the physical and mental state of the asylum seekers, and the moral position of Australia in the world community.

For lawyers in Australia, a particular area of concern is the efforts of the Australian Government to restrict access of asylum seekers to lawyers and the courts.

This has been done by denying asylum seekers the right to have a lawyer represent them at the initial interview stage and before the Refugee Review Tribunal, sending asylum seekers to such places as Christmas Island, Nauru, New Guinea, Woomera and Port Hedland, where it is very difficult for lawyers to contact asylum seekers and act on their behalf, and restricting the rights of the asylum seekers to apply for judicial review in the Federal Court

The process for seeking a visa in Australia is generally that those people making claims for refugee status commence by lodging an application for a Protection Visa with the Department of Immigration, Multicultural and Indigenous Affairs (“DIMIA”).

The practice has been that people who arrive here but do not utter the “magic words” claiming refugee status, have been just left in limbo by DIMIA officials until someone, usually another refugee, advises them to do so. The application is then dealt with by a DIMIA officer who interviews the applicant and decides whether he or she satisfies the criteria under the UN Convention. Lawyers are not permitted to represent applicants at these interviews. Moreover DIMIA officials are not obliged to inform detainees of any right to obtain legal advice at any time.[3] Only migration agents, who are contracted by the Government, may assist detainees at this stage.

If an application is refused, the applicant may then seek a merits review of the decision from the Refugee Review Tribunal.

This Tribunal must permit the applicant to appear and present evidence. There is one member of the Tribunal at each hearing who acts both as judge and interrogator. Again lawyers may not appear on behalf of the applicant. A migration agent may appear but can only make submissions if invited to do so by the Tribunal member.

Members of the RRT are appointed by the Minister, usually for a period of 5 years. Some are lay people and some are lawyers. Up until recently those people who were refused a visa by the RRT could appeal to the Federal Court for judicial review on the grounds of errors of law. Continual amendments to the Migration Act 1958 have dramatically narrowed the scope for arguing errors of law at the Federal Court in particular on the basis of a denial of natural justice. More recent amendments to the Migration Act and the Administrative Decision (Judicial Review) Act 1977 have defined a decision of the RRT as a “privative clause decision”. Effectively it appears that this will remove all judicial review of those decisions from the Federal Court. Applicants may still be able to issue prerogative writs alleging that the RRT exceeded its jurisdiction, but the potential grounds for success are still unclear and likely to be quite narrow[4]. These amendments came into effect on 2nd October 2001.

Prior to recent amendments to the Migration Act, if an applicant was successful following the initial interview or upon a decision being made by the RRT then they would be granted a Temporary Protection Visa pending the granting of a Permanent Protection Visa. However following the recent amendments those people who currently only hold a Temporary Protection Visa are now barred from obtaining a Permanent Protection Visa. Furthermore, those persons who entered Australia at an “excised offshore place” such as Christmas Island or Ashmore Reef, become an “unlawful non-citizen” and as a result are not eligible to apply for any form of Protection Visa under the Migration Act.[5] The .validity of seeking to excise parts of Australian territory from the operation of domestic legislation is not clear at the time of writing. However it would certainly appear that such legislation does not obviate Australia’s continuing obligations under international law.

As well as being denied a role in representing asylum seekers in the process of obtaining visas, lawyers are also severely restricted by the Government in representing asylum seekers in relation to conditions in detention centres. Lawyers already face obstacles in acting for asylum seekers due to language and cultural barriers. Compounded with this has been the practice of the Australian Government to place asylum seekers in very isolated places such as Woomera, where there are very few, if any lawyers available, and certainly not the usual facilities which lawyers may need.

Lawyers have had particular difficulty in accessing detainees at Woomera. Woomera was first established at the end of 1999. In November 2000 lawyer Jeremy Moore obtained an authority from two detainees to act for them. He wrote to DIMIA at Woomera seeking access to his clients but his request was ignored. He then issued proceedings in the Federal Court. The Government initially opposed the application for access, but then reluctantly consented.

The first access visit by a lawyer was therefore on 1 December 2000. From then on Jeremy Moore, Paul Boylan and a team of lawyers have managed to gain access to detainees at Woomera. However the process has been continually frustrated by the Government. Letters have to be written to the Department seeking access on each occasion, in advance. At times permission has been granted and then cancelled abruptly, when lawyers were just about to set off for the 6 hour journey from Adelaide. Lawyers have not been allowed to use phones whilst in the Centre. Lawyers are not allowed entry into the various crammed compounds where detainees are actually held. People who Jeremy Moore and others had been seeing, have been suddenly sent away to other Centres, at Port Hedland or Villawood, without any notice or reasons given to their lawyer. Detainees have also reported that they had been told by staff at the Centre that if they ask to see a lawyer then their visa application could be delayed or refused. Despite all these difficulties however, a team of “Woomera Lawyers” have now gained the trust of the detainees and there is an overwhelming demand to obtain independent legal advice. In fact these lawyers have now recently received request to visit Curtin Detention Centre in the north of Western Australia, where access to lawyers has been even more restricted.

The practice of the Federal Government in outsourcing management of these centres to private companies, has created additional difficulties. Indeed, it is often the case that when lawyers complain on behalf of their clients concerning poor conditions at a Centre, both the relevant company and DIMIA assert that it is the other’s responsibility to rectify the problem. It has been very difficult to access all the relevant details concerning the outsourcing contracts as many of the provisions are claimed by the Government to be “commercial in confidence”.

This dilemma has been made even more difficult now with the transportation of asylum seekers to countries such as Nauru and New Guinea. The status of people who have been taken by Australian authorities to these countries and who are detained in camps paid for by the Australian Government, is still unclear. It seems that the Government is intent on hiding these people away in conditions which prevent any accountability to the Australian legal system at all.

This concerted campaign by the Australian Government to exclude asylum seekers from basic rights under Australian law and from access to lawyers is clearly in contravention of the Universal Declaration of Human Rights, in particular:

  • Article 1– You have the same human rights as everyone else in the world because you are a human being. These rights cannot be taken away from you. Everybody, no matter who they are or where they live should be treated with dignity”
  • Article 2 – You should not be discriminated against, or have your rights taken away because of your race, colour, sex, language, religion or political opinion. Your basic rights should be respected, no matter what country you are born in or how rich or poor you are”.

At the time of publication Graham Harbord was a member of the Law Society’s Human Rights Committee, and the Woomera Lawyers Group.

This article was published in the Law Society Bulletin in February 2002.

 

[1] See Don McMaster “Asylum Seekers”, Australia’s Response to Refugees, Melbourne University Press, 2001, at p85.

[2] refer to the Government’s website on Immigration, www.immi.gov.au

[3] Justice Von Doussa, “Jurisdiction and Procedures of the Federal Court in Migration Matters”, unpublished paper, June 2001.

[4] J Garden and R Owens, “The Border Protection Legislative Package”, Law Society Bulletin, December 2001.

[5] J Garden and R Owens op cit

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