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Abolishing free legal advice to asylum seekers - who really pays?



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November 27, 2013

Abolishing free legal advice to asylum seekers — who really pays? By Elibritt Karlsen

Image source: unhcr.org

One week before the 2013 federal election, the Coalition announced that, if elected, it would no longer provide funding for free legal advice to asylum seekers who have arrived without a valid visa. The primary concern for the Coalition was clearly the increasing cost of providing this service. However, one month prior to the Coalition’s announcement, the Government had entered into a regional resettlement arrangement with Papua New Guinea which meant all future boat arrivals would be processed abroad with no access to the Immigration Advice and Application Assistance Scheme (IAAAS). Nonetheless, there are estimated to be in excess of 30,000 asylum seekers in Australia that will be affected by this proposed change.

Government funding to assist asylum seekers with the protection visa application process became formalised in the early 1990s when the Migration Act 1958 was radically overhauled to introduce a highly codified and regulatory framework to the visa decision making process. Consequently, the Government began providing free legal assistance to enable asylum seekers in hardship with strong claims for asylum to present their claims more effectively.

By the mid the 1990s the Application Assistance Scheme (AAS) was costing the government around $1.6 million a year and a parallel scheme had emerged—the Immigration Advisory Services Scheme (IASS), which provided annual grant funds of $0.3 million to five community agencies to provide free immigration advice to the most disadvantaged applicants in the community.

In 1996 the Department conducted a review into the IASS. It found that the scheme reduced the proportion of poorly prepared and inappropriate applications being submitted. The review also recommended the two schemes be incorporated to provide administrative efficiencies. Thus in July 1997, the IAAAS was created by the Howard Government with an annual budget of close to $2 million. Other than fluctuations in funding to meet increased demand (as shown in the table below), the

IAAAS eligibility criteria has changed very little since its inception nearly 20 years ago.

The new scheme drew a distinction between application assistance and immigration advice. Application assistance involved assistance to prepare, lodge and present applications for visas and to make applications for merits review. Application assistance was available to all protection visa applicants in detention, and asylum seekers residing in the community with cases of merit who were experiencing financial hardship or were suffering torture and trauma.

Immigration advice included advice to people wanting to prepare and lodge their own visa applications, advice about visa conditions and sponsorship, and advice about departmental procedures. It also included assistance with the preparation of supporting documentation.

According to the Coalition’s pre-election policy document, asylum seekers who have arrived in Australia without a visa (or who do so in the future) will instead be provided with written instructions in multiple languages that will explain the application and assessment process. Interpreters will be provided and Departmental staff will be available to answer questions about the process. Alternatively they can independently pay for their own legal advice.

A number of community legal centres have been critical of the Coalition’s policy announcement. They have emphasised that asylum seekers are particularly vulnerable because they are likely to face considerable challenges in presenting comprehensive and cohesive claims without assistance. They claim that the involvement of lawyers significantly improves the quality and efficiency of the decision making process and that the change may end up costing the Government more in the long term as there will be longer delays in the decision making process and more appeals to the courts.

To this end, it is significant to note that the Coalition has also announced that they would consider removing appeals to the Refugee Review Tribunal (RRT) and implementing a non-statutory assessment and review process, though this is yet to occur. Nonetheless, the RRT Legal Advice Scheme has been discontinued. This was a Commonwealth Government funded scheme which provided legal advice to unrepresented asylum seekers in NSW who were seeking judicial review of an RRT decision. According to the President of the NSW Bar Association, the decision to abolish the scheme will result in a shifting of costs to an already under-resourced judiciary because it will significantly increase the number of self-represented litigants, which will result in the Federal Circuit Court facing more appeals and increased delays.

Financial Year Cost ($million)

1997—1998 1.9

1998—1999 1.9

1999—2000 1.9

2000—2001 10.8

2001—2002 6.6

2002—2003 1.3

2003—2004 1.5

2004—2005 N/A

2005—2006 2.2

2006—2007 2.2

2007—2008 2.2

2008—2009 3.3

2009—2010 11.8

2010—2011 20.9

2011—2012 22.6

2012—2013 28.4