People who arrived with a valid visa
Currently, people seeking asylum who have arrived in Australia on a valid visa and who meet specific eligibility criteria with respect to disadvantage are able to access legal assistance under the Federal Government funded Immigration Advice and Application Assistance Scheme (IAAAS). Assistance is delivered by IAAAS providers, who are registered migration agents or officers of legal aid commissions. Currently, funding is available for application assistance (where an IAAAS provider helps an asylum seeker complete and manage the lodgement of an application) or legal advice (where an IAAAS provider advises on visa applications in person or by telephone). The scheme only provides legal assistance for people at the initial asylum application stages, not at the stage of merits review or judicial review. Recently, the government has indicated that availability of IAAAS will become more restricted. Eligibility for assistance will be limited to unaccompanied minors, those who are extremely vulnerable and do not have the capacity to complete an application (such as people who have mental health or other conditions affecting cognitive function), and those in immigration detention.
People who arrived without a valid visa
People seeking asylum who arrived in Australia without a valid visa were previously entitled to access the IAAAS, but this is no longer the case. The funding cut was foreshadowed by the Coalition before the 2013 election and was announced by the Coalition Government in March 2014.
Currently, if a person who arrived without a valid visa wishes to access legal assistance for an asylum claim, they must do so at their own expense, or through other channels if available. The former Minister for Immigration indicated that limiting legal assistance to people seeking asylum who arrived without valid visas will save approximately $100 million over four years, and deter potential boat arrivals. In place of legal assistance, the government has developed Protection Application Information and Guides, which provide instructions about the asylum application and assessment process in various languages.
In addition, a small number of people who are considered most vulnerable (such as unaccompanied minors) may be eligible for government-funded assistance under the Primary Application Information Service (PAIS). Eligibility for PAIS is determined at the discretion of the Department of Immigration and Border Protection. PAIS does not assist with merits review or judicial review, and is only available to a small percentage of people seeking asylum, who are judged by the Department as being exceptionally vulnerable.
Guidance on PAIS eligibility and the assessment process issued by the Department, indicates that a person may be eligible for PAIS assistance if they are an unaccompanied minor, or are an adult who satisfies the following criteria:
- The non-citizen arrived in Australia after 13 August 2012; and
- At the time of the relevant PAIS assessment, the non-citizen has not engaged a registered migration agent for assistance in relation to a protection visa application; and
- The non-citizen has not previously had a valid protection application considered in Australia; and
- The non-citizen is, at the time of assessment, an adult in relation to whom the department considers it to be in the best interests of government to provide assistance to ensure their claims are presented and able to be considered, in particular, noncitizens regarded as being exceptionally vulnerable.
In relation to the fourth criterion, the Department states that this will include the provision of assistance to those who are likely to find it difficult to participate in the application process and articulate their claim for protection without assistance, including those with an intellectual or cognitive disability, mental illness or other incapacitating health conditions.
The limited extent of government-funded legal assistance to people seeking asylum has led to expressions of concern by legal organisations that many asylum seekers will be left to navigate the complex process of seeking protection alone.