By Simon Bruck and Nicole D’Souza
- Many people seeking asylum who arrived in Australia by boat from 13 August 2012 have recently been notified they have 60 days, with the possibility of a 30-day extension, to apply for a protection visa. Non-compliance could result in the person being barred from applying for a visa, loss of support payments, and deportation.
- The Government has announced its intention to bar protection applications from 1 October 2017.
- Community legal services, including the Refugee Advice and Casework Service and NSW Young Lawyers, are trying to fill some of the access to justice gaps with the help of pro bono solicitors and registered migration agents, but the fear is people seeking asylum will have to navigate the process alone.
The majority of people seeking asylum who have attempted to enter Australia by boat since 13 August 2012 have been blocked from applying for a protection visa. Those who remain in Australian sovereign territory but have not been cleared through immigration have become known as the ‘Legacy Caseload’.
When the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) came into force in mid-2015, the so called ‘Legacy Caseload’ group was gradually sent letters granting them permission to apply through a ‘fast track’ process for one of two types of temporary protection visas: the three-year Temporary Protection Visa or the five-year Safe Haven Enterprise Visa. The last of the letters providing permission to apply for one of these visas was sent in September or October 2016.
Community legal centres and groups across Australia responded with significant pro bono assistance from private firms. Since 2015, special pro bono clinics have been set up in NSW to take statements and assist with form filling. In August 2016, the Human Rights Committee of NSW Young Lawyers also started the Refugee Assistance Project – its own collaborative project with the Refugee Advice and Casework Service (‘RACS’) to provide more pro bono ‘form filling’ clinics, and RACS organised follow-up appointments with Registered Migration Agents who could provide applicants with expert migration advice. There was a long waiting list for these pro bono services.
At the end of 2016, the Government started sending letters to the remaining applicants notifying them that they must complete their visa applications within 60 days, with the possibility of a 30-day extension. Applicants were informed that failure to comply could result in them being barred from applying for a visa, that they would lose support payments, and ultimately face deportation. As far as we are aware, not all people seeking asylum who are in the ‘Legacy Caseload’ have received this letter.
RACS and other community legal services around Australia responded by starting weekend ‘blitz days’ to maximise the amount of people that could be assisted. NSW Young Lawyers also held a ‘blitz day’ assisting 46 people in April. The Government publicly announced in mid-May 2017 that anybody in this cohort of people that had not applied would, on 1 October 2017, be liable to be barred from applying for protection, and subsequently face deportation. NSW Young Lawyers and RACS held further combined ‘blitz days’, helping up to 25 people each time, in response to this announcement.
Gaps in access to justice
In Senate Estimates in May 2017, the Department of Immigration and Border Protection (‘DIBP’) Secretary noted that they had budgeted on the basis that 2500 people nationally may miss the 1 October 2017 deadline. What remains to be seen is: how many people will claim they did not receive the letter advising them they must apply within 60 days; how many people will apply for a visa without any assistance or advice from a Registered Migration Agent; and how many people will miss the 1 October 2017 deadline, be barred from applying for a visa and deported? Although various community services have stepped in to help fill the access to justice gap, it is inevitable that some people will miss out. More than 80 per cent of people applying for asylum have not had a government-funded Registered Migration Agent to represent them in their application for protection since the Government cut the funding in 2012.
The gap in access to justice is not just for people making the initial application to the DIBP. There is also a gap in the availability of ongoing advice and representation during the visa application process, including in responding to adverse information, and in the merits review process at the Immigration Assessment Authority (‘IAA’).
A particular characteristic of providing access to justice for people seeking asylum is that they are overwhelmingly from non-English speaking backgrounds and are often unable to independently pursue a legal process such as this in English. Navigating the ‘Fast Track’ process has thus proved to be even more difficult for these individuals who have not had access to interpreters to assist them with the completion of the lengthy and complex forms required in order to make an application for protection.
The NSW Young Lawyers Refugee Assistance Project, along with other community groups and pro bono services, have responded by working with volunteer community interpreters in order to address this barrier. Since the imposition of the 1 October deadline, the DIBP has agreed to provide limited funding for professional interpreters for remaining applicants.
The Immigration Assessment Authority
The IAA’s procedural rules are worth noting. People in the ‘Fast Track’ process have automatic access to review in the IAA, unless they are otherwise excluded from this review. There are significant differences between the rules in the IAA and the Migration and Review Division (‘MRD’) of the Administrative Appeals Tribunal, in its hearing of protection visa cases.
Unlike the MRD, the IAA only conducts hearings in exceptional circumstances. As a result, applicants at the IAA generally do not have an opportunity to be heard in person and cannot access interpreter services that would otherwise be available at a hearing in the MRD. The IAA does not consider new information unless there are exceptional circumstances and submissions to the IAA are limited to five pages, written in English and due 21 days after the referral date (unless an extension of time is granted, at the Member’s discretion). The challenges to the many applicants who are unrepresented or who have only been able to obtain limited assistance or advice, and who do not speak or write English, are evident.
It is advisable that submissions to the IAA address all relevant issues, and include responses to issues in the DIBP refusal decision which can be over 20 pages in English. This presents obvious challenges for the many applicants who have a low level of English proficiency and may not understand the reasons for the DIBP refusal decision or how to engage with the IAA.
There is no government funding for legal services to provide advice or representation to any adult who is before the IAA, despite the importance of merits review in the administrative law process. It is therefore common for people before the IAA to be self-represented. The percentage of remittals to DIBP at the IAA in 2016-2017 for the top five countries (Sri Lanka, Iran, Afghanistan, Iraq and Vietnam) was 17 per cent, while the percentage of MRD decisions that set aside the DIBP decision for the same five countries in 2016-2017 was 32 per cent.# This suggests a discrepancy in the decision making which could indicate that factors other than the merits of the case may be affecting outcomes. Further investigation is warranted to ascertain whether this discrepancy in decision making is a result of the IAA practice issues identified above.
Section 101 of the Migration Act 1958 puts the onus of making full and accurate protection claims on the visa applicant. It states: ‘A non-citizen must fill in or complete his or her application form in such a way that: (a) all questions on it are answered; and (b) no incorrect answers are given or provided’. Yet, the 41 page application form must be completed in English and many people seeking asylum are not fluent in English even if they have absorbed some English whilst in Australia. Without a Registered Migration Agent or an interpreter, and with limited time to access a pro bono community legal service, it is difficult to make a quality written application. The DIBP and the Tribunals treat inconsistencies seriously in their assessments of credibility, so carefully recording the claims for protection and ensuring applicants receive accurate migration law advice are important aspects to the process. This may be an increasing issue if people seeking asylum are rushing to make visa applications without legal assistance, in an attempt to meet the new deadlines.
If the Government does not consider the claims of asylum seekers who may not have been aware of the new deadline, or who have been unable to make an application in time and it still proceeds to involuntarily return those people to their country of origin after the 1 October 2017 deadline passes, then the Government will be at risk of breaching its obligations under international law. Article 33(1) of the Convention Relating to the Status of Refugees states: ‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. It is important to note that in order for the Refugee Convention to operate effectively, certain rights must attach to asylum seekers, prior to a final determination of their refugee status having been made, and the fundamental principle of non-refoulement must therefore apply to those for whom a valid determination of their refugee status has not yet been made.
It is positive to see the increase in pro bono support that the legal community has provided. In a 2016 survey, the immigration area was nominated as the third most common area of pro bono law and practice, up from 12th in the 2014 survey. Sixteen firms in the Australian Pro Bono Centre 2016 survey nominated immigration as one of their top five areas of pro bono law and practice, up from 6 firms in 2014. (Australian Pro Bono Centre, ‘Report on the Fifth National Law Firm Pro Bono Survey Australian firms with fifty or more lawyers, March 2017’, www.probonocentre.org.au>.) This is significant, noting the fact that subject to the provisions in Part 3 of the Migration Act, in order to provide ‘immigration assistance’, solicitors are also presently required to be registered migration agents.
Despite the overwhelming response from the legal and community sectors, with the new deadline of 1 October 2017, the gap in access to justice for people seeking asylum has become substantial. See the RACS and Young Lawyers websites for how you can help us bridge that gap. LSJ
First published in Law Society Journal, August 2017 edition, p84-85.
#Immigration Assessment Authority, ‘Immigration Assessment Authority Caseload Report’, www.iaa.gov.au/IAA/media/IAA/Statistics/IAACaseloadReportYTD.pdf , and Administrative Appeals Tribunal, ‘Refugee caseload summary by country of reference For the period 1 July 2016 to 31 May 2017’, www.aat.gov.au/AAT/media/AAT/Files/Statistics/MRDRefugeeCas_eload-Statistics-2016-17.pdf