Count the cost of refugee legal aid ‘savings’

What this announcement ignores is the need for a funded system for those unable to afford private firms. It is not just representation, but also the cost of interpreters and translation; there are no free services for these crucial skills.

On 31 March, Immigration Minister Scott Morrison announced that ‘the end of taxpayer-funded immigration advice to illegal boat arrivals’ would save $100 million.

For over 20 years, the Department of Immigration has funded immigration advice for people seeking protection. Under both the Coalition and Labor there was always some funding. Legal aid is not available, so the Department funding was the only source of free legal assistance. The funds were limited either by a means test or to those who arrived by boat without a visa.

Now that funding has ceased. Which means no free professional assistance for what is an increasingly complex area of the law.

This is said to be both the fulfillment of an election promise and a cost-saving measure, though it is in fact only a short-term accounting saving. If advice and assistance on complex issues of immigration and refugee law is only available to those with money or the luck to gain access to pro bono assistance, this is not a saving, but a cost. People who are in detention may end up relying on unscrupulous advisors, or those who lack the experience and skills in this area. Pro bono work should exist to help plug gaps, not fill a massive hole.

The Minister states:

The withdrawal of taxpayer funded immigration advice and assistance does not prevent those who arrived illegally having access to legal assistance. In addition, those who wish to provide immigration advice and application assistance pro bono are free to do so. Access to any private and/or pro bono immigration advice by illegal boat or air arrivals will be facilitated by the Department of Immigration and Border Protection, with all costs to be met by the providers of these services.

Private access has always been possible, but is often limited due to logistics about accessing detention centres. What this announcement ignores is the need for a funded system for those unable to afford private firms. It is not just representation, but also the cost of interpreters and translation; there are no free services for these crucial skills. Outside the main cities, there are travel and accommodation costs also to be covered.

‘Australia’s protection obligations do not extend to providing free immigration advice and assistance to those who arrived in Australia illegally,’ states the Minister.

The Refugee Convention does not discuss this, but it also does not say we have to have mandatory detention, or deny access to permanent residence and to immediate family reunion. Yet this Government cheerfully seeks to implement all of these. The key responsibility in refugee law is to not refoule (send someone back to possible persecution). Denying people funded applications assistance increases the risk of refoulement.

If people choose to violate how Australia chooses to run our refugee and humanitarian program, they should not presume upon the support and assistance 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.

Someone comes here and claims they are at risk of persecution, and that is violating a refugee program? Please. Besides, this is not a new funding program, it operated under the Howard Government as well. Refugee programs are not about maintaining orderly bus queues; they are about ensuring that people who meet the strict criteria are protected from returning to a country where they are at risk of persecution.

Under these changes the government will provide illegal arrivals clear instructions in multiple languages setting out the asylum application and assessment process and will provide interpreters. This is similar to the process employed by the UNHCR around the world.

Maybe if you are in a refugee camp in Jordan, where there are over 1.2 million Syrian refugees, but we are in a highly industrialised and wealthy western country with an advanced legal system. Is a translated document really the best we can offer?

Refugee law in Australia is very complex. The text books are thick, and dense with legalese. This is because governments keep changing the laws and adding new and often convoluted criteria. The majority of migration cases in the Federal and High Courts since 1992 have been related to refugee law. The Refugee Review Tribunal’s Refugee Law Guide is over 300 pages — will this be translated and available in detention centres?

Before any of the ad hominem commentators have a go at a refugee lawyer complaining about funding cuts, here is my disclosure. I do not do any cases which are government funded. I have some pro bono cases. My wife and business partner works part time at a legal centre, but the psychological cost to her in being stressed by funding cuts and dealing with other complex matters is not financially compensated by anything she might earn. In fact, our firm loses money by her being there.

In theory I should applaud this decision as it means possibly more clients, but a major interest for us is the proper treatment of and service to the clients. Those who are unable to pay for advice will be pushing to get help from the already overstretched pro bono assistance available in this area.

Poorly prepared cases take longer to assess, and may give rise to more legal errors, so take up the time of the courts. Asylum seekers become frustrated at being unable to have their stories properly presented. This will add to pre-existing mental health issues and make their settlement needs more expensive.

It seems we can spend millions on throwaway boats and offshore detention centres, but not on the people whose job is to help resolve refugee applications. Presenting this as a cost-saving measure does not factor in the other actual and potential costs we will have to face.

This decision is plainly a bad one and is yet a further example of the Government’s policy of punishment for those who come on boats without a visa. I suspect it is hoped that those of us already providing pro bono assistance will be swamped and unable to adequately represent people. A Government that makes such a decision and trumpets it as a cost-saving measure does not care what happens to those adversely affected.

By Kerry Murphy

Kerry Murphy is a partner with the specialist immigration law firm D’Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU, and was recognised by AFR best lawyers survey as one of Australia’s top immigration lawyers.

First published by Eureka Street

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