What legal aid entitlements do asylum seekers have?
Asylum Seekers with a Valid Visa
Currently, asylum seekers who have arrived in Australia on a valid visa, and who meet specific eligibility criteria with respect to disadvantage, are able to access legal aid under the government-funded Immigration Advice and Application Assistance Scheme (IAAAS). Such legal aid is provided by IAAAS providers, who are registered migration agents or officers of legal aid commissions. Under the scheme, funding is available for legal representation (known as ‘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 provides legal aid for asylum seekers at the initial application stages, but not at the stage of merits review or judicial review. According to information published by the government for the 2014-2015 Federal Budget, the withdrawal of IAAAS access for merits review will save $2.1 million over four years.
Asylum Seekers without a Valid Visa
Asylum seekers who have arrived in Australia without a valid visa are no longer entitled to access the IAAAS. This policy was foreshadowed by the Coalition before the 2013 election and was announced by the former Minister for Immigration Scott Morrison on 31 March 2014.
In place of legal aid, the government has developed Protection Application Information and Guides (PAIG), which provide instructions about the asylum application and assessment process in various languages. If asylum seekers wish to access legal advice, they will have to do so at their own expense. According to the Minister, this policy will save about $100 million over four years and deter boat arrivals.
However, a small number of asylum seekers 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. The PAIS does not assist with merits review or judicial review. PAIS is only available to a small percentage of asylum seekers, who are judged by the Department of Immigration and Border Protection 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:
- At the time of the relevant PAIS assessment, the non-citizen has not engaged a registered migration agent for assistance in relation to a temporary or permanent 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 third 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 asylum seekers has led to expressions of concern by relevant legal organisations that hundreds of asylum seekers will be left to navigate the complex process of seeking asylum without assistance.
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What are the implications of cutting legal aid entitlements?
Inadequate access to financial resources is one of the key barriers to obtaining legal advice and representation for asylum seekers. Government-funded legal assistance is crucial for ensuring access to justice, fairness and public confidence in a complicated and often bewildering justice system. The immediate consequence of cutting legal aid entitlements is that asylum seekers will be forced to apply for protection visas on their own. This is problematic for several reasons.
First, as noted by UNHCR, ‘[a]sylum seekers are often unable to articulate the elements relevant to an asylum claim without the assistance of a qualified counsellor because they are not familiar with the precise grounds for the recognition of refugee status and the legal system of a foreign country’.
Second, asylum seekers are particularly vulnerable because they do not have the support networks of their country of origin. Most come from non-English speaking backgrounds and face additional language and cultural barriers in presenting their case. Many are also fearful of authority due to experiences in their home country. As a result, many asylum seekers will not be able to articulate their claims in a coherent way, nor build up enough trust with the decision-maker to share personal details and experiences during a short interview. All these factors may compromise the quality of the decision-making process which, in the case of asylum seekers, could represent the difference between life and death. Without access to legal advice and representation, there is a real risk that asylum seekers will be returned to countries where they face persecution and other serious forms of harm, such as torture and death.
Consequently, by cutting legal aid for asylum seekers, Australia faces a greater risk of breaching its non-refoulement obligations under the Refugee Convention and international human rights law (that is, the obligation not to send asylum seekers back to their country of origin until a refugee status determination has been made). Further, as UNHCR has noted, ‘[f]air and efficient procedures are an essential element in the full and inclusive application of the [Refugee Convention]. They enable a State to identify those who should benefit from international protection under the Convention, and those who do not.’ Therefore, the failure to provide free legal assistance may abrogate Australia’s responsibility to ensure fair and efficient asylum procedures.
Moreover, although the government has indicated that its policy will reduce costs, the policy is more likely to increase burdens on decision-makers and the courts. Lawyers provide an important ‘triage’ service that not only reduces the number of unmeritorious claims, but also ensures that applications are presented in a coherent way in accordance with evidential and legal requirements. As noted by the Law Council of Australia, ‘[t]he removal of claims assistance will place unreasonable pressure on Australian immigration officials who will be left to make decisions on the basis of poorly prepared and incomplete applications.’ This may delay the decision-making process and increase the number of decisions being appealed at significant cost.
Finally, government-funded legal assistance helps asylum seekers understand application procedures and the nature of their rights, thereby fostering trust and cooperation between asylum seekers and national authorities. The current policy, which compromises the quality, cost and timeliness of the decision-making process, may erode public confidence in the fairness of Australia’s asylum procedures.
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How does Australia compare to other countries?
In New Zealand, eligible asylum seekers are entitled to government-funded legal assistance for most stages of the visa application process – from the initial claim to proceedings before the Immigration and Protection Tribunal, and any subsequent appeals. Under the Legal Services Act 2011 and Legal Services Regulations 2011, an asylum seeker’s eligibility for legal aid is assessed by reference to factors such as levels of income and disposable capital, and their prospects of success.
The European Union’s Asylum Procedures Directive requires Member States to provide asylum seekers with free legal and procedural information in relation to their initial application for protection. In the event of a negative decision, applicants are entitled to free legal assistance and representation for appeal proceedings. Member States may condition legal aid on various factors, such as the applicant’s sufficiency of resources and the likelihood of success. Legal assistance may also be limited to appeals at first instance. Finally, Member States can impose monetary and/or time limits on the provision of legal aid, and provide that asylum seekers are not to be treated more favourably than nationals in matters relating to legal aid.
In the UK, eligible asylum seekers are entitled to government-funded legal assistance in respect of their claim for a protection visa. Factors such as the asylum seeker’s financial circumstances and prospects of success will be assessed to determine eligibility for legal aid. Unlike Australia, legal aid is available for judicial review proceedings, except in immigration cases where the same, or substantially the same, issue was the subject of an adverse judicial review or appeal outcome in the last 12 months. Since 2011, cuts to legal aid funding have triggered the closure of two major legal aid providers for asylum seekers, Refugee and Migrant Justice and Immigration Advisory Service, which went into administration following the funding cuts.
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What is international best practice?
Although the Refugee Convention and the 1967 Protocol relating to the Status of Refugees establish key principles such as non-refoulement, international refugee law does not establish procedures for refugee status determination. However, it is a generally recognised principle that fair and efficient asylum procedures are essential to giving full effect to the Refugee Convention. Thus, UNHCR has recommended that Member States should provide free legal assistance and representation at all stages of asylum procedure, including at first instance and in appeal proceedings.
In 2010, the European Council on Refugees and Exiles (ECRE) developed a list of recommendations for governments in relation to legal aid for asylum seekers. These include:
- Providing sufficient public funding to ensure that legal aid providers can effectively assist and represent asylum seekers;
- Ensuring that legal aid is available at all stages of the asylum procedure. Lawyers should be able to assist in preparing the asylum application, accompanying applicants to the preliminary interview and assisting with any subsequent appeals;
- Where asylum seekers are means-tested for legal aid, there should be a presumption that they lack sufficient resources unless there is clear evidence to the contrary;
- States should only apply a merits test for legal aid after a full examination of the asylum application. Further, if a merits test is applied, it should not be so stringent as to practically deny asylum seekers of an effective remedy;
- The right to legal assistance should not be subject to a merits test;
- States should provide a formal mechanism for asylum seekers to lodge a complaint against their lawyer. Legal aid services should also be monitored by an independent body to ensure the quality of legal assistance and representation; and
- States should ensure that an asylum seeker’s lawyer has access to all information in relation to their client’s case.
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Australia’s current policy in relation to legal assistance for asylum seekers falls short of other comparable nations’ standards and international best practice. Specifically, the removal of publicly-funded legal assistance for appeals and the denial of legal aid to the majority of asylum seekers who arrive without a valid visa undermine the principle of equality before the law, and significantly inhibit access to justice for those who are most vulnerable and cannot afford legal representation. Without legal aid, asylum seekers cannot properly present their claims for refugee status determination or challenge erroneous decisions. Cutting legal aid funding also compromises the quality, cost-effectiveness and efficiency of the asylum application process. Asylum seekers are consequently exposed to a greater risk of being returned to their home country where they face persecution. Australia also faces a greater risk of breaching its non-refoulement obligations under the Refugee Convention and international human rights law. Improving access to legal assistance is crucial for creating fair and efficient asylum procedures, maintaining public confidence in the legal system and ensuring that Australia meets its international obligations.
Australian Government, Budget Paper No. 2, Expense Measures, Department of Immigration and Border Protection
Department of Immigration and Border Protection, Fact Sheet – Immigration Advice and Application Assistance Scheme (IAAAS)
European Council on Refugees and Exiles, Survey on Legal Aid for Asylum Seekers in Europe (October 2010)
Jane McAdam and Fiona Chong, Refugees: Why Seeking Asylum is Legal and Australia’s Policies Are Not (NewSouth Publishing, 2014).
Law Council of Australia, ‘Legal Assistance Critical for Fair Asylum Outcomes’ (Media Release, 3 September 2013)
Law Council of Australia, ‘Law Council Concerned by Removal of IAAAS Funding’ (Media Release, 2 April 2014)
Minister for Immigration and Border Protection, ‘End of taxpayer funded immigration advice to illegal boat arrivals saves $100 million’ (Media Release, 31 March 2014)
Refugee Council of Australia, ‘2015-16 Federal Budget in Brief’
Refugee Council of Australia, ‘Restricting Legal Assistance to Asylum Seekers Increases Dangers’ (Media Release, 31 March 2014)
Mike Seccombe, ‘Stalling the lawyers who aid asylum seekers’, The Saturday Paper, 20 June 2015
UNHCR, Comments on New Zealand Legal Aid Quality Framework (14 October 2010)
UNHCR, Fair and Efficient Asylum Procedures: A Non-Exhaustive Overview of Applicable International Standards (2 September 2005)
UNHCR, Global Consultations on International Protection: Asylum Processes (Fair and Efficient Asylum Procedures), EC/GC/01/12, 31 May 2001
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