March 31, 2014
Immigration lawyers say fulfilling Coalition pledge to axe legal aid scheme may mean legitimate refugee claims are rejected.
The federal government has cut all taxpayer funded legal advice to asylum seekers who have arrived in Australia through unauthorised channels, drawing criticism from immigration law experts who say it will jeopardise thousands of refugee protection claims.
The Coalition pledged to make the cuts to the Immigration Advice and Application Scheme (IAAAS), which will save $100m, before last year’s federal election and it is understood cases have not been referred to the scheme since November.
The immigration minister, Scott Morrison, said on Monday cutting legal access to asylum seekers lodging protection claims in Australia did not contravene obligations under international law.
“If people choose to violate how Australia chooses to run our refugee and humanitarian programme, they should not presume upon the support and assistance that is provided to those who seek to come the right way, and they should certainly not receive additional assistance, as they did under the previous government,” Morrison said.
But international standards written by the United Nations High Commissioner for Refugees (UNHCR) say the right to legal advice during the claims process is an “essential safeguard”.
“Asylum 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,” the UNHCR says.
Morrison said the government would offer a “small amount of additional support” to those the department of immigration considers vulnerable – including unaccompanied minors.
David Manne, chief executive of the Refugee and Immigration Legal Centre, said the cuts could endanger the lives of asylum seekers fleeing persecution.
“This is a complex process and people need legal advice and support to understand what’s required, and present their case in a way which can be properly assessed by the government. Without this advice, people will seriously struggle to understand the system or properly present their case,” he said.
“The bottom line is – it’s about the government getting the right decision on what are often life or death matters so that we don’t reject people whose safety is at risk.”
Morrison said asylum seekers would be free to access legal advice offered on a pro bono basis and would be assisted by the department of immigration.
But Rachel Ball, director of advocacy and campaigns at the Human Rights Law Centre in Melbourne, told Guardian Australia the department had already refused an offer to provide asylum seekers with a list of free legal services.
According to correspondence with the department seen by Guardian Australia, the department said it would be inappropriate to provide a list in case it was seen to be “favouring or endorsing particular persons or organisations”. Ball said this response was “nonsense”.
“There is a limited number of services that can provide pro bono assistance and they can’t possibly meet the demand. This is not a case where providers are competing with each other for lucrative business; they’re providing the services for free,” she said.
Tanya Jackson-Vaughan, chief executive of the Refugee Advice and Casework Service, which is one of nine groups in receipt of IAAAS funding for boat arrivals, said the cuts would mean more asylum seekers “failed the test” for refugee status.
“Access to justice is a fundamental human right – there’s been a longstanding commitment from successive governments to provide legal assistance to asylum seekers in recognition of this right and that legal assistance assures an effective refugee status determination process,” she said.
Labor’s immigration spokesman, Richard Marles, described the cuts as “mean-spirited” and “ripping away assistance for people who have been through traumatic experiences and are often vulnerable”.
“This is an unfair and harsh announcement from a government with twisted priorities,” Marles said.