Why Refugees Need Legal Aid


Immigration Minister Scott Morrison added yet another burden to asylum seekers this week when he announced that they would no longer be eligible for “taxpayer funded immigration advice and assistance”. That is, asylum seekers arriving without a valid visa, by boat or plane, will no longer be eligible to obtain independent and professional immigration advice and assistance through the Immigration Advice and Application Assistance Scheme (IAAAS).

The removal of the funding – which was an election promise – is predicted to save the government $100 million. However, the policy appears to be primarily designed to deter asylum seekers from coming to Australia.

While the government has indicated that it would not block community organisations from providing free immigration advice and assistance to asylum seekers, and may even facilitate their services, over-stretched organisations are unlikely to be able to provide the help that is needed without government funding.

As the Refugee Council has pointed out in the past, many organisations relying on IAAAS funding were struggling with the scheme’s small amount of support even prior to the recent announcement.

The reality for most asylum seekers is that they cannot afford to pay for legal assistance. As a result, many of them, including refugees who are owed Australia’s protection obligations, are likely to be left without help.

Australia’s asylum process is incredibly complex. Most asylum seekers will not be in a position to understand the many intricacies of our status determination regime. The government has indicated that it will provide asylum seekers with information in their own language, however, this is insufficient.

Some asylum seekers are illiterate in any language, and many arrive in Australia confused, frightened and overwhelmed. Many are also distrustful of bureaucracy and government services because of their experiences of being persecuted by their own governments. Under this new arrangement, many asylum seekers will be unable to explain the reasons for fleeing their homes and seeking our protection.

Several studies have shown that there is a clear correlation between having legal advice and the recognition of a refugee’s status. A study of the asylum process in the US, for example, found in 2002 that asylum seekers who had legal assistance were four to six times more likely to have their refugee status recognised as compared to asylum seekers who did not have the assistance of lawyers.

Similarly, a study of legal advisors in Cairo, Egypt, found that refugees who received legal advice had nearly double the chance of having their refugee status recognised by the United Nations High Commissioner for Refugees (UNHCR), which handles asylum applications there.

Scott Morrison has said that “whether someone is a refugee or not is determined by the process.” This is clearly incorrect. People become a refugee the moment they fear persecution because of their race, religion, nationality, membership of a particular social group or political opinion and are outside of their country. As UNHCR has stated, a person does not become a refugee “because of recognition, but is recognised because he [or she]is a refugee.”

Australia has voluntarily signed on to the Refugee Convention, which requires it to protect refugees from being returned to persecution. The rejection of refugees because of their inability to state their need for protection, without help, is therefore illegal. Given the very high refugee recognition rates among asylum seekers arriving by boat to Australia in the past, it is highly likely that the majority of asylum seekers affected by the announcement are also refugees who are owed protection by Australia under international law.

Scott Morrison has also attempted to excuse the new policy on the grounds that the UNHCR does not provide funded independent legal advice to asylum seekers in its own status determination procedures around the world. This is true but it is no excuse for Australia’s bad policy. UNHCR recognises the need for independent legal advice, stating that:

"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. Quality legal assistance and representation is, moreover, in the interest of States, as it can help to ensure that international protection needs are properly identified."

UNHCR does not provide independent immigration advice and assistance to individuals because of a lack of resources. Australia, which can afford to spend more than $2 billion over four years on offshore processing and detention can afford the additional $100 million dollars to ensure that it is not returning refugees to persecution, torture or even death in violation of its international obligations.

In any case, as the Asylum Seekers Resource Centre has pointed out, saving money on legal assistance is a false economy. Lack of immigration advice and assistance for asylum seekers will make the job of decision makers much harder.

Without the provision of independent advice to asylum seekers, decision makers will have to assess many poorly written and unfocused claims. This will increase processing times and will also increase the likelihood of review. Longer processing times will, in addition, increase the length of detention for some asylum seekers.

There is nothing to be gained by cutting funded immigration advice and assistance to asylum seekers arriving without valid visas. There is, however, much to lose — including placing refugees in danger of persecution, torture or death. Removing funded immigration advice and assistance is cruelty for the sake of cruelty in a system that is increasingly marked by its severity.

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