Chapter 7 - Migrants and refugees
7.1
This chapter discusses:
-
the availability of free legal assistance for
migrants and refugees; and
-
obstacles for effective assistance to migrants
and refugees
Availability of free legal assistance for migrants and refugees
7.2
Migrants and refugees who are unable to afford legal
assistance in relation to immigration law matters have two sources of free
legal assistance. The first is through legal aid; the second is through free
advice and casework services offered by CLCs and services that are funded by
the Immigration Advice and Application Assistance Scheme (IAAAS) through the Department of Immigration and
Multicultural and Indigenous Affairs (DIMIA).
Legal aid for migrants and refugees
7.3
There are various restrictions on the availability of
legal aid assistance in immigration matters. Under the Commonwealth Guidelines,
in addition to the applicant being subjected to the means and merits test,
legal aid assistance can only be granted in migration matters where:
-
there are differences of judicial opinion which
have not been settled by the Full Court of the Federal Court or the High Court;
or
-
the proceedings seek to challenge the lawfulness
of detention. A challenge to the lawfulness of detention does not include a
challenge to a visa decision or a deportation order.[480]
7.4
The University
of Technology Sydney Community Law
and Legal Research Centre argued that these limitations ignore that immigration
is a Commonwealth matter for which legal aid should be provided.[481]
7.5
Victoria Legal Aid argued that the restrictive
nature of the Guidelines, which were introduced in the 1997 changes to legal
aid, has caused a reduction in the level of legal aid available to migrants and
refugees. That is because although the Commonwealth sought to supplement the services
to migrants and refugees through the IAAAS scheme, some LACs have not
successfully tendered for these contracts. As a result, LACs are limited to
only providing legal aid to those applicants who meet the guidelines.[482] This is
discussed further below.
7.6
The Committee also heard that the high rate of legal
aid refusal that these restrictions allow, leads to substantial pressure being
placed on those services offered through IAAAS funding:
The UTS CLLRC believes that based on the high rate of referrals
for immigration matters there is a significant unmet legal need which is not
adequately met by legal aid. The Immigration Advice and Rights Centre (IARC) is
the only CLC which specialises in immigration matters in NSW and as such is a
highly strained service. The Refugee
Advice and Casework Service (RACS) is the only service in NSW which provides
specialised advice for protection visas and refugees and is similarly over
stretched.[483]
Immigration Advice and Application
Assistance Scheme
7.7
Those migrants and refugees who are refused legal aid
assistance may seek assistance from services delivered through IAAAS contracts.
These services are delivered by LACs who have successfully tendered for IAAAS
contracts, CLCs such as the Immigration Advice and Rights Centre (IARC), or
specialist services operating under such contracts, for example, the Refugee
Advice and Casework Service (RACS).
7.8
Victoria Legal Aid provides assistance under the IAAAS
scheme:
Under IAAAS, VLA can
formally represent a limited number of particularly disadvantaged asylum
seekers in applications to the Department of Immigration (DIMIA) and to the
Refugee Review Tribunal (RRT). The
IAAAS contract is a service for which VLA successfully tendered to DIMIA and it
provides immigration applicants either in the community or in detention some
level of representation.[484]
7.9
The IAAAS scheme also provides funding to some CLCs
such as IARC to enable them to offer assistance to migrants and refugees. IARC
funding is made up of Commonwealth and state funding (because of its role as a
CLC under the program), funding from IAAAS and some self-generated funds.
7.10
Ms Suhad
Kamand of the IARC explained at the Sydney
hearing that of the drop-in advice it provides, 60 per cent would be covered by
funding under the Commonwealth and state community legal centres funding
program, 20 per cent would be covered by
self-generated funding, and 20 per cent would be covered under the IAAAS.[485]
7.11
The IARC argued that the IAAAS did not allocate
sufficient funding for application assistance and immigration advice for
non-protection visa immigration matters. In 2001/02 the total funding for such
assistance was $111,000, of a total IAAAS funding for that year of over $6.5
million.[486]
The IARC explained that $111,000 would fund 124 new visa applications. In the
two years of 200002, the IARC provided full application assistance to 36
clients and opened 147 new files. However, in each year around 5000 people seek
assistance in phone or by person.[487]
7.12
Ms Suhad
Kamand explained that those it is forced to
turn away due to lack of resources must usually proceed without assistance or
representation:
A large number of
people that we have to turn away who do seek ongoing assistance are low to nil
income earners. They have poor English language skills. They are unfamiliar
with the way things are done in Australia and with government and tribunal processes.
They are left without representation. They cannot go to commercial agents
because they cannot afford commercial agents, and pro bono lawyers often do not
offer migration advice because of the registration requirementsthey are not
registered to provide migration advice. Non-fee-charging agents simply do not
have the capacity to assist them.[488]
7.13 Migrants' demand for legal assistance is
illustrated by their level of representation in seeking assistance from CLCs
generally (that is all CLCs, not just those receiving IAAAS funding). The NACLC
gave the Committee figures indicating that for the 2002 calendar year, those
who were born in a country other than Australia comprised 31.2 per cent of all clients
seeking assistance from CLCs. Furthermore, those who were born in a non-English
speaking country made up 22.2 per cent of all clients.[489]
7.14 Apart from LACs and CLCs that have been
funded with IAAAS contracts, there are also several specialist services which
are funded by IAAAS contracts to provide assistance to refugees.
7.15 An example of such a service is RACS, which
is funded by IAAAS, grants from philanthropic organisations and community
donations. RACS provides advice and assistance to refugees and asylum seekers.
RACS explained that the support it is able to offer falls seriously short of
meeting the needs of asylum seekers in NSW and remote detention centres
throughout Australia.[490]
7.16 RACS stated that, since 2000, it has
represented about 800 asylum seekers from over 50 countries, and that over 80
per cent of those have been granted refugee status.[491] A new and demanding area of work has been the
provision of legal assistance to Temporary Protection Visa (TPV) holders. RACS
explained that in the majority of these cases it does not receive government
funding assistance.
7.17 In relation to the demand TPV holders make
on CLCs and specialist services, the CCLCG noted that as the expanded TPV
regime requires reassessments at 3 year intervals, and as such people are not
eligible for legal aid, the pressure will become unrelenting:
The Migration Amendment Regulations which commenced on 28th August 2003 broaden the TPV
regime to all on-shore applicants seeking protection, whether arriving with or without
documentation. The result will be to increase the number of people on TPVs,
which will in turn increase pressure on limited community and legal
services. As on-shore refugees will then be required to undergo status
determination at three year intervals, the demand on legal services will be
unrelentless (sic). This will put heightened pressure on already over stretched
services such as the Refugee Advice and Casework Service. Given that TPV
holders are amongst the most socially and economically excluded people in our
society and are unable to access the private migration sector, legal aid
limitations will likely result in significant hardship.[492]
Access to justice for migrants and refugees: obstacles for effective legal
assistance
Background
7.18 The Committee heard of various obstacles to
the effective delivery of legal assistance to migrants and refugees. These
include:
-
restrictions
in the Commonwealth priorities and guidelines on the circumstances in which
legal assistance can be granted to migrants and refugees;
-
need
for assistance at primary review stages;
-
conflict
of interest arising from DIMIA granting IAAAS funding; and
-
Migration Agents Registration Authority
compliance costs.
Restrictions in the Commonwealth
Priorities and Guidelines
7.19 As explained above, the Commonwealth
Priorities and Guidelines limit the availability of legal aid for immigration
and refugee matters to cases that challenge points of law in either the Full
Court of the Federal Court or the High Court. The Committee heard evidence from
both LACs and CLCs, criticising the restrictions that the Commonwealth
priorities and guidelines place on legal aid for migrants and refugees.
7.20 NLA argued that the requirement that there
be a 'difference of judicial opinion' before legal aid can be granted for
judicial review proceedings is very narrow and means that disadvantaged clients
with meritorious cases are denied assistance.[493] Victoria
Legal Aid noted that although it is able to offer assistance through the IAAAS
funding, overall it now offers less assistance than it was able to previously
because of restrictions in the Guidelines:
Whilst pleased to act as one
of the service providers under the IAAAS in refugee matters, VLAs capacity to
respond to community demand in this area is significantly less than it was
prior to the 1997 Commonwealth arrangements.
The guideline allowing for legal aid for asylum seekers at primary
application (DIMIA) and merits review (RRT) stages was taken out of the 1997
and subsequent Commonwealth funding agreements. The IAAAS contracts were then
implemented and some legal aid commissions, not all, as well as some private
law firms successfully tendered for these contracts. The result is that some
commissions, those without IAAAS contracts, are now unable to assist these
clients.[494]
7.21
The inability of IAAAS to meet the needs of those who
are denied legal aid was reinforced by the NLA, which argued that the number of
TPV holders far exceeds the current service levels possible under the IAAAS:
The [IAAAS] administered by the Department of Immigration
provides representation to only a small number of disadvantaged people in the
community applying for visas to the Immigration Department or to review
tribunals. Immigration Department statistics indicate that, Australia wide, in
the financial year 2001-02, representation was provided under the scheme in 398
non-detention cases, Given that there are over 8000 Temporary Protection Visa
holders applying for further visas, many of whom are unable to pay for representation,
the current system clearly does not provide access to justice for this
disadvantaged group.[495]
7.22
RACS argued that assistance of migrants and refugees
should be provided by legal aid, rather than leaving the majority of applicants
to seek assistance through IAAAS:
RACS submits that Legal Aid assistance in applying for a
protection visa should be available for all asylum seekers who satisfy the
means test and whose applications are not vexatious or frivolous or have no
possible prospects of success. In addition, RACS submits that Legal Aid should
be available for proceedings in the Federal Court or High Court where an
applicant satisfies the means test, and whose claim has some merit, and is not
vexatious or frivolous. RACS submits that this should include proceedings to
challenge a decision about a visa or deportation order.[496]
Need for assistance at primary
review stages
7.23
The Legal Services Commission of South Australia
explained that the limited provision of legal aid in administrative law
matters, such as social security matters, has a considerable impact on
non-refugee migrants, as they may suffer from language difficulties, extreme
social isolation, lack of understanding of the legal system, and a fear of
authority. It noted that in regards to social security matters, the guidelines
restrict aid to the Administrative Appeals Tribunal level or above and no legal
aid is available at the preliminary stages.[497]
7.24
The Legal Services Commission of South Australia argued
that AAT appeals are often hampered by evidence and comments made at the
preliminary stages when the applicant was not represented. It noted that it
would be helpful and efficient to assist at the early stages to try and prevent
more costly appeals to the AAT. The Legal Services Commission of South Australia
commented that it would support changing the guidelines to allow this, but such
a change would require an increase in funding.[498]
7.25
Ms Suhad
Kamand on behalf of IARC also made this
point in relation to migration matters:
[U]nrepresented
applicants can undermine the processes that the department of immigration has
in place. If the department receives an incomplete application, if an
application contains errors or if it does not contain all of the evidence
required, it is slowed down in its processing. Applications that could be
decided on a positive basis by the department get rejected and they go to the
Migration Review Tribunal, where fuller evidence is provided and the DIMIA
decision gets set aside. Perhaps if those people had representation at the primary
stage, the matter would not have gone to the [Migration Review Tribunal].[499]
Committee view
7.26
The Committee is concerned that the Guidelines
introduced in 1997 have resulted in a reduction of available legal assistance
for migrants and refugees. The Committee acknowledges that the Commonwealth
Government has sought to meet this need with specialist funding under the
IAAAS, but the Committee is concerned by evidence from LACs that this has not
effectively met the need, and that overall LACs are now able to offer less
assistance to migrants and refugees than they were prior to 1997.
7.27
Migrants and refugees are amongst the most
disadvantaged groups in terms of access to justice. The Committee believes
that, because of the special needs of this group due to language and cultural
barriers, and due to the responsibility the Commonwealth has in this area,
assistance should be provided to these persons by LACs. It is not appropriate
that some LACs (those that have successfully tendered for IAAAS funding) are
able to assist migrant and refugees in such matters whilst others are not.
7.28
The Committee is also concerned that the increase in
demand caused by the introduction of TPVs is not being met by current IAAAS
funding.
7.29
The Committee believes that if greater assistance were
provided to migrants and refugees at the preliminary stages, it is likely that
the need for complex and expensive review may be reduced. By assisting such
people at an earlier stage through legal aid, the Commonwealth would not only
meet its obligation for such persons, but may also reduce the cost and burden
on the review system.
7.30
The Committee considers that the Commonwealth
priorities and guidelines should be amended, to allow LACs to assist migrants
and refugees at the preliminary and review stages where an applicant meets the
means and merits tests, as was possible prior to 1997. Accordingly, the
Commonwealth should provide additional funding to LACs to meet such demand.
Recommendation 41
7.31
The Committee recommends that the Commonwealth
Priorities and Guidelines relating to the provision of migration assistance be
amended such that assistance is available to those applicants meeting the means
and merits tests, for preliminary and review stages of migration matters,
including challenges to visa decisions and deportation orders.
Recommendation 42
7.32
In implementing Recommendation 41, the Committee
recommends that the Commonwealth provide the necessary funding to legal aid
commissions to meet the need for such services.
Interpreter services
7.33
A issue frequently raised regarding access to justice
for migrants and refugees was the lack of interpreter services available to
CLCs and specialist services.
7.34
In order to deliver legal assistance to migrants and
refugees, the ability to have access to translator/interpreter services is
obviously of great importance. The translation service offered by the
Commonwealth is the Commonwealth Translating and Interpreter Service (TIS). TIS
provides free telephone interpreters and a limited number of face-to-face
interpreters.[500]
7.35
QAILS explained that ordinarily TIS is a fee paying
service, but to date CLCs have been given an exemption subject to certain
limitations. These limitations include that services to Queensland CLCs are
subject to a quota, and bookings are on a first come, first served basis. This
often results in CLCs being unable to provide assistance to a client because
the quota has been reached.[501]
7.36
QAILS also explained that the interpreter service does
not extend to court representation, and that clients with significant language
barriers have had to appear in court without an interpreter. This is a
particular problem in civil matters, because unlike criminal matters, Queensland
courts do not have the power to order interpreter services in civil
proceedings.[502]
7.37
Both QAILS and the CCLCG explained in their submissions
that TIS does not offer its services after business hours, which is when most
CLCs hold their advice sessions.[503]
7.38
CCLCG noted that the limitations of TIS mean that it is
the second choice for interpreter services for CLCs in NSW. The first choice is
the NSW Community Relations Commission for a Multicultural NSW (CRC). CCLCG
noted that prior to 1998, the NSW Ethnic Affairs Commission (as it was then)
provided face-to-face interpreters to CLCs, on request for free. However CCLCG
explained that in 1998, after the Commonwealth limited TIS to Commonwealth
matters only, the NSW Government brought in a fee-for-service policy. CCLCG
negotiated with the NSW Government for a limited exemption for CLCs. These
limits to the exemption mean that the CRC service is not available for
Commonwealth matters and equity/compensation matters.[504]
7.39
CCLCG further noted that the lack of interpreter
services was worse for regional areas, and gave the example that Illawarra
Legal Centre has to travel to Sydney
(an hour and half drive) to access CRC interpreters.[505]
7.40
In order to remedy the difficulties that CLCs face in
accessing interpreter services, CCLCG proposed the creation of a
'one-stop-shop' for interpreter services.[506] CCLCG
estimates that servicing unmet interpreter demand in NSW CLCs would cost around
$100,000 (750 services at $130 per service). CCLCG suggested that as the
provision of interpreters should be on a needs basis, the real cost should be established
through a 12 month pilot program. Such a pilot should be funded with a $100,000
pool of funds from the Commonwealth and states/territories, and could be
administered by the LACs.[507]
Committee view
7.41
Clearly it is essential for the provision of access to
justice that persons are able to comprehend the advice they receive, and the
matters to which they are a party. The Committee is concerned by evidence that
those seeking to provide free migration advice face difficulties in accessing
face-to-face interpreters and is even more concerned by the reported lack of
interpreter services in court proceedings, particularly civil matters.
7.42
The Committee believes that the inefficiencies caused
by the Commonwealth/state divide in funding also occurs in translation services.
The Committee believes that translation services would be more efficient and
effective if they were funded jointly by the Commonwealth and the
states/territories and made available for all matters regardless of whether the
matter relates to the Commonwealth or the states.
7.43
The Committee supports the CCLCG's suggestion that a
pilot program be established, jointly funded by the Commonwealth and the
states/territories. The Committee believes that the provision of $100,000 of
funding for each jurisdiction, met jointly by the Commonwealth and the
states/territories is a reasonable cost to test the viability of a
'one-stop-shop' for interpreter services.
Recommendation 43
7.44
The Committee recommends that the Commonwealth and
states/territories should jointly fund a $100,000 pilot program in each
jurisdiction to assess the viability of a "one-stop-shop" interpreter
service for community legal centres and legal aid services, to be administered
by the legal aid commissions.
Conflict of interest issues
7.45
It was strongly argued in submissions and evidence that
a conflict of interest arises because the IAAAS system is administered by
DIMIA, which also appears against applicants in immigration matters.[508]
7.46
Mr Tony
Parsons from Victoria
Legal Aid explained the difficulties:
We are regularly
confronted with the situation where we attend our clients in detention centres,
they ask us what the problem is and we say, The department of immigration is
trying to throw you out of the country. Then they ask: Who is providing money
for your legal services? and we have to say, The department of immigration.
It is an appalling conflict of interest. That money should be administered by
the Commonwealth Attorney-Generals office at the very least. People accuse us
of providing Third
World justice with
that kind of conflict.[509]
7.47
In addition to the conflict of interest that the IAAAS
arrangements may cause, it was also noted by Ms
Louise Boon-Kuo
of RACS that its IAAAS contracts are currently in 6 month grants, which makes
it very difficult to engage in long term planning.[510]
Committee view
7.48
The Committee believes that services for migrants and
refugees would be best provided by legal aid, and consequently believes that
the Commonwealth priorities and guidelines should be amended as suggested in recommendation
41. If, however, the Commonwealth
continues to service the needs of migrants and refugees through IAAAS funding,
the Committee believes it is inappropriate that this scheme is administered by
DIMIA since this causes a clear conflict of interest and is unacceptable.
7.49
The Committee also believes that the length of IAAAS
contracts (6 months) is too short to enable specialist service providers to
engage in medium to long term planning, and that funding should at least be
made annually.
Recommendation 44
7.50
The Committee recommends that if the IAAAS scheme is to
continue as the main source of assistance for migrants and refugees, this
program should be administered by the Commonwealth Attorney-General's
Department as opposed to the Department of Immigration and Multicultural and
Indigenous Affairs, to avoid any conflict of interest.
Recommendation 45
7.51
The Committee recommends that if the IAAAS scheme is to
continue as the main source of assistance for migrants and refugees, the
funding periods should be extended from 6 months to 12 months to allow
specialist services and community legal centres to engage in longer term
planning.
Migration Agents Registration
Authority compliance costs
7.52
The Committee heard that compliance costs imposed by
the Migration Agents Registration Authority (MARA) are an obstacle for CLCs or
firms wishing to engage in pro bono legal advice regarding migration matters.
7.53
The IARC explained that the availability of free
migration advice is limited by the requirement that those offering migration
advice be registered migration agents. The IARC provided the Committee with a
breakdown of the costs to gaining initial registration as a migration agent,
which amounted to over $5,000.[511] It noted
that no concession is available to non-fee charging agents for the MARA
examination fee, and that the only concessions available for them are the
registration fees. The initial registration fee is reduced from $1760 to $160
for non-charging agents, which reduces their total initial registration costs
to around $3,400. Re-registration is reduced from $1050 to $105. [512] The IARC
further noted that the ongoing cost of maintaining registration is in the order
of $2,200 for non-fee charging agents (compared with $4,200 for commercial
agents).[513]
7.54
The IARC expressed concern that the number of non-fee
charging migration agents is decreasing and will continue to do so. The IARC
noted that the 2001-02 MARA annual report stated that for that year there were
2773 registered migration agents, but of those only 270 were non-fee charging
agents.[514]
The Committee notes that the MARA annual report for 2002-03 indicates that as
of 30 June 2003 the number
of overall registered agents had increased to 3084, but the number of non-fee
charging agents remained static at 270.[515]
7.55
The IARC was also concerned by the recent continuing
professional development (CPD) requirements imposed by MARA, which it argues
will inevitably increase the cost of such training. It was concerned that this
will reduce the numbers of non-fee charging agents, because unlike commercial
agents, they are unable to pass the costs down the line to consumers.[516]
7.56
The IARC also explained that while it offers free or
heavily discounted CPD seminars to other providers of non-profit migration
advice, due to demanding administrative requirements from MARA regarding the
provision of CPD courses (and limited resources on the part of IARC), it is
unlikely that service providers such as IARC can continue to provide such free
or discounted courses.[517]
Committee view
7.57
The Committee is concerned by evidence that the
availability of migration agents who provide free services may be reduced by
compliance costs imposed by the MARA. The Committee believes that all possible
barriers should be removed for those who seek to practice as non-fee charging
migration agents.
7.58
The Committee believes that in its role of regulating
the migration industry, MARA has an obligation to ensure that there are no
unnecessary barriers to those who seek to practice as non-fee charging
migration agents.
7.59
The Committee believes that MARA should co-operate with
those such as IARC who run free or discounted CPD courses for non-fee charging
migration agents. Such co-operation could involve meeting the administrative
costs experienced by IARC in providing such courses, and/or in subsidising the
costs of running such courses.
Recommendation 46
7.60
The Committee recommends that the Migration Agents
Registration Authority co-operate with specialist migration advice services and
community legal centres to minimise the costs of complying with the continuing
professional development requirements that it administers.