AJA policy for legal advice

Migration advice for asylum seekers

The Immigration Advice and Assistance Scheme (IAAAS) provides free immigration advice and assistance to a limited group of asylum seekers in Australia who meet certain eligibility criteria. All protection visa applicants in immigration detention are eligible, as well as applicants in the community who show disadvantage.

Those asylum seekers who do not qualify for IAAAS assistance may either pay for the services of a commercial migration agent, may seek free assistance through other avenues such as pro bono services, or may find themselves unable to access any legal assistance at all.

Why does the current system need reform?

There are a number of significant problems with the current system of legal advice for on-shore asylum seekers, starting with the moral problem inherent in allowing commercially operating migration agents to make a profit from the protection needs of refugees.

While there are some non-IAAAS migration agents who have expertise in this area, many commercial or pro bono migration agents lack the necessary experience or knowledge to properly assist people in the very specialised area of protection visa applications. There needs to be a mechanism to restrict, or reduce, the numbers of non-specialist migration agents from this area. Expanding access to the free IAAAS scheme would provide this mechanism, without encroaching on commercial freedom to operate.

More significantly for managing an orderly migration system in Australia, ensuring that people are given good and fair advice on their legal rights and making sure their expectations are properly managed, means they are more likely to accept that negative decisions have been made fairly and adhere to requests to depart Australia.

Other problems include:

Bad migration advice leads to failed applications. While many commercial or pro-bono migration agents provide excellent advice, there are many who are not experts in protection visa applications and are unable to provide proper assistance in matters that can result in a person being sent home to danger.

Poorly managed expectations lead to refusals to depart Australia Commercial operators have a clear conflict of interest, in that they benefit when a client pays them to advise on or lodge a protection claim, even if the client?s circumstances appear to have little to qualify them for a protection visa. This results in some people who have been denied a visa, remaining in Australia to fight their case as they wrongly believe there has been a miscarriage of justice.

Misuse of the protection system Ensuring that the majority of meritorious applications are lodged by IAAAS providers makes it easier to spot rogue applications attempting to abuse the protection visa system to gain bridging visas with work rights.

Disadvantaged people not eligible Many community-based asylum seekers are ineligible for the current IAAAS, even though some of these may have little capacity to access their own legal or migration advice and may be reasonably considered to be suffering financial disadvantage, but do not have any of the additional disadvantage criteria.

AJA?s recommendations for IAAAS reform

AJA recommends consultation with the legal community on the following proposal: that all protection visa applicants must attend a mandatory advice session with an IAAAS provider. All applicants with deemed protection claims will be provided with voluntary application assistance. (Not all applicants will be successful, but assistance should be provided to all who raise enough evidence to warrant a proper investigation of their claims.)

After the initial advice session, applicants are free to decline IAAAS application assistance and seek assistance from a commercial or pro bono migration agent. However, part of the IAAAS advice session will include details on rights of people using migration agent services, fee schedules and what questions to ask to ensure they are receiving service from an agent experienced in protection issues.

How it would work:

• All applicants for protection visas attend a mandatory interview with an IAAAS agent, who will provide basic migration advice and ensure that the applicant understands their legal rights as well as the criteria for qualifying for an onshore protection visa.
• IAAAS agent provides full application assistance to all deemed meritorious protection visa cases. An applicant can also elect to complete the application themselves, or seek a non IAAAS migration agent.
• If the IAAAS agent decides that the applicant has little grounds for qualifying for a protection visa, the applicant will not receive IAAAS application assistance but is free to seek assistance from other registered migration agents.? These agents may only take on such clients once they have sighted evidence that the client has first gone through IAAAS.
• IAAAS assistance is expanded to include applicants seeking ministerial intervention, as recommended by the Legal and Constitutional References Committee and the Senate Select Committee on Ministerial Discretion in Migration Matters.[1]?

Benefits of a universal migration advice system

Improved decision making and procedural fairness by providing access to proper migration assistance which increases the quality of applications, making decisions both easier to make and easier to review.

Reduced merits and judicial review by ensuring access to realistic, ethical legal advice at the start of a claim, as well as ensuring that all information relevant to the claim is put forward at the first instance.

Service delivery improvements from government and NGOs by ensuring all potential protection visa applicants receive an information pack.

Better expectation management resulting in greater acceptance of negative decisions.

Reduced contested removals as people feel their claims have been fully and fairly investigated, their expectations of the outcome have been properly managed from the start, and those with poor cases have been provided with return counselling and options from the start of the process.

Streamlined ministerial intervention by ensuring that all requests are full documented and properly presented. This reduces repeat requests, as there would be no additional information, excepting in a few cases where new events have actually occurred. The criteria for eligibility would also have been fully explained to applicants, better managing their expectations and preparing them for refusals and possible removal from Australia.

Better oversight of migration agents by restricting the number of agents preparing protection applications. Statistics will provide good performance indicators of IAAAS providers and non IAAAS providers will also be easier to monitor.

Removes the profit motive for encouraging unmeritorious applications.

Costs?

A Just Australia?s proposal could be expected to triple upfront IAAAS costs to $7million (an additional $4.8 million) but would prove to be at minimum cost neutral over time as it would result in a significant reduction in judicial review, repeat ministerial applications and contested removals resulting in detention and expensive involuntary removal procedures.

In 2006-07 IAAAS costs were $2.2million

• $0.7 million for application assistance to 343 protection visa applicants in detention ($2040 per unit)

• $0.8 million for application assistance to 449 disadvantaged visa applicants in the community ($1780 per unit), and

• $0.7 million for immigration advice to 6250 disadvantaged persons in the community ($112 per unit).[2]

A total of 792 people were given application assistance in 2006-07. A further 2508 applicants in the community lodged protection applications in that period[3]. To provide and advice session ($112) + full application assistance ($1780) would cost in the region of $4.8 million. There may be some additional advice sessions as people are referred from DIAC, but the advice sessions may in fact reduce the number of unmeritorious applications as people are given a realistic briefing on their chances.