• 27 FEB 17
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    Government targets people seeking asylum with threatening legal letters

    The Turnbull Government is heightening fear and confusion among people seeking asylum living in our community, sending out hundreds of letters threatening to cancel bridging visas, deny the right to lodge asylum claims, and cut people off critical support payments.

    The letters, sent by the Department of Immigration and Border Protection in recent weeks, warn people they have only weeks to lodge their asylum claims or risk being permanently denied the right to claim asylum in Australia.

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    The letters are being sent to people across the community, many of whom are already involved in legal processes to claim asylum but who have been unable to yet lodge their applications due to massive backlog in the system, timeframes that are unrealistic, and constraints on the capacity of underfunded legal services that are struggling to meet already surging demand.

    Legal and community services are already seeing people who have been cut off from social support payments within days of receiving one of these letters from the Department.

    Specialist legal services working with people seeking asylum are bracing for an expected 300 per cent increase in the legal services required to meet the needs of people seeking urgent support and advice. The Department has also told legal services that they will not accept any extensions on timeframes, abandoning a long-standing agreement with lawyers working in the sector.

    This means people who are already on legal waiting lists are being told they need to lodge their applications within weeks, regardless of whether they have had a chance to see a lawyer.

    The letters are being sent to the more than 12,000 people who have been waiting to lodge their asylum claims under the government’s so-called “fast track” legal process, which was introduced in December 2014 through the Legacy Caseload Bill. This process is more complex, with short timeframes and arbitrary deadlines, resulting in a far higher rate of asylum claims being rejected than was previously the case.

    Prior to the introduction of “Fast Track”, more than 90 per cent of asylum claims for people who arrived by boat were accepted. Under the current system the rate of rejection has surged to 30 per cent, as people seeking asylum struggle to negotiate a legal process that departs from international law and which advocates say is designed to make people fail.

    “The Turnbull Government has chosen to target some of the most vulnerable people in our community with these letters at the same time as they have removed funding for legal support,” said Kon Karapanagiotidis, CEO of the Asylum Seeker Resource Centre.

    “The ASRC is already working with more than 1000 people who are affected by this decision, while there are more than 10,000 people in Victoria. It is concerning that many of them will not yet have had access to any legal support or advice.”

    “Many of these people have been waiting four years to be invited by the government to lodge their asylum claims. When they are finally given the opportunity to do so, they are facing unfeasibly tight deadlines with life-changing implications if they do not get it right.”

    “It is yet another attack on people seeking asylum who want nothing more than a fair chance to present their claims for asylum so they can begin to rebuild their lives in peace in our community.”

    “Our community expects that everyone deserves fair treatment under the law. It is concerning that our government does not appear to share that belief with the rest of us.”

    The strain on specialist refugee legal services is already being felt after the government cut funding for legal assistance to the bone. Legal services to refugees took a massive hit in the 2014 budget with government funded legal supports for refugees and people seeking asylum slashed by 90 per cent.

    “The ASRC does not nor will ever take Federal Government funding but we believe it is vital that the federal government fund the specialist provision of free legal services to people seeking asylum,” said Kon Karapanagiotidis.

    “The system cannot function without a properly funded community legal sector and the scale of need and increasing demand on legal services means people seeking asylum are denied natural justice and fairness before the law. This current crisis has been created by the federal government’s refusal to adopt a fair and transparent refugee determination process.”

    Lawyers who work with people seeking asylum say the Government’s actions undermine the right to a fair process and are creating anxiety in the community.

    “This policy change by the Government risks forcing people to lodge their applications without getting critical legal assistance,” said Melinda Jackson, Principal Solicitor with the ASRC’s Human Rights Law Program.

    “The process is incredibly complex and most people require legal help to complete their application for protection. We know from experience that the Department is more likely to approve visa applications that are prepared with the assistance of a lawyer.”

    “People lodging applications for protection have to fill out a complex 60-page form together with a detailed statement of their refugee claims, all in English.”

    “Because of the fundamentally unfair Fast Track process which severely limits people’s right to review any negative decision, the visa application process it our client’s one chance at being granted asylum. People fleeing harm deserve to be offered a realistic chance to rebuild their lives with their family here in our community.”

    “Community legal services are already operating at capacity. We need more lawyers right now who can support people through the process, but more than this we need the Australian government to restore funding for essential legal services.”

    “The change in policy is not only unexpected, but it seems unreasonable considering that the Department is presently unable to process the number of applications they are receiving. Currently DIBP receives around 1500 visa applications per month, but is only able to finalise around 500. This arbitrary deadline to lodge applications creates an unnecessary sense of urgency, in circumstances where the Department is not coping with the demand in their own system.”

    The ASRC is expanding the capacity of its legal in response to the crisis and has launched an emergency campaign to fund new dedicated fast track lawyers to meet the increased community need.

    CASE STUDIES

    Case Study 1 – Fast Track processing

    Muhamad arrived in Australia by boat on 15 August 2012 from Pakistan. Muhamed has been waiting almost four years to apply for protection. During the waiting period he has struggled to find work: although he worked in Information Technology in Pakistan, his qualifications are not recognised in Australia and he has been unable to work. He has therefore been forced to rely on government support payments.

    In January 2016 he was invited to apply for a Temporary Protection Visa (3 year visa) or a Safe Haven Enterprise Visa (5 year visa). He then had to wait 9 months to access free legal assistance from a community legal centre as he is not eligible for government funded legal assistance, and he could not afford a private lawyer.

    Muhamed had to wait a further 6 months from the time he lodged his application to receive his decision from the Department. He was refused a protection visa, as although it was accepted that Muhamed would be likely seriously harmed in his home town of Quetta because of his Hazara ethnicity, the new definition of a ‘refugee’ meant that Muhamed had to show that he would face this harm in all areas in Pakistan.  Accordingly a decision was made that Muhamed could return to another area in Pakistan despite the fact that this would continue to be dangerous for him.  Muhamed does not understand the legal test for relocation and cannot explain why Hazara people face discrimination all throughout Pakistan.

    Muhamed is living in the community and reliant upon support from organisations like ASRC. He does not know what the future holds but is fearful that he will be returned to Pakistan.

    Case Study 2 – Lack of access to legal and late disclosure of information

    Jeyanais a Tamil woman from Sri Lanka and she is 22 years old. She was imprisoned during a general round-up by authorities in Sri Lanka during a political protest because of her ethnicity. She was detained for seven days during which time she was sexually assaulted and raped by the army. Jeyana did not report this to the authorities in Sri Lanka because it was the authorities who had assaulted her. Nor did she disclose this to her husband because of the deep shame she felt as a result of societal stigmas about rape victims. Jeyana is seeking asylum in Australia.

    Jeyana receives a reminder letter from the Department informing her she needs to apply for protection within 30 days or risk having her Bridging visa cancelled, being cut off from social supports and permanently lose the right to apply for asylum in Australia.

    She is unable to afford legal assistance. She cannot access free services in Victoria in the short timeframe set out in the letter due to the overwhelming demand on community lawyers.  The waiting list is many months long. In desperation due to the threatening letter she approaches her male friend who helps her to apply for her Temporary Protection Visa as he is able to speak and read in English well.

    She does not disclose the sexual assault or abuse by the army in her application for protection because of her shame and because she does not feel comfortable speaking with a man about her rape. Her application was refused by the Department due to lack of detail about the harm she fears. Through working with her counsellor and after the shock of the refusal letter, Jeyana discloses to her counsellor about the rape and abuse.

    Jeyana writes a letter to the Immigration Assessment Authority (IAA) stating that she had been raped and wants an interview with the IAA so she can explain her fears of sexual abuse as a Tamil woman if she were forced to return to Sri Lanka. The IAA declines her request for an interview, and states that it would not accept her evidence because it was new information which could not be considered unless in exceptional circumstances.  The IAA states that Jeyana’s circumstances do not amount to ‘exceptional circumstances’. This is despite the fact that late disclosure of sexual assault is very common, particularly in cultures where there is deep shame associated with rape.

    If Jeyana had been able to access legal representation through ASRC, ASRC would have provided her with a female lawyer and female interpreter to ensure she felt comfortable to tell her story.  ASRC provides a Women’s Clinic service with expertise in assisting women including women who have suffered sexual assault.  It is the only service of its kind in Australia.  Jeyana would have been informed of the restrictive practices of the IAA and it would have been explained that it is difficult to present new information at the IAA.  Furthermore, because of Jeyana’s vulnerability and the difficulty she experiences in recounting her experiences of rape and sexual assault, ASRC would have had a female lawyer represent her at her interview with the Department.  Jeyana would have been able to tell her story safely with the support of a specialised women’s service, the support she needed.

    Case Study 3 – The short timeframes in fast track lead to unfair legal outcomes

    Reza is from Iran. He participated in the 2009 demonstrations against the Iranian regime. He was arrested at one of the demonstrations and was severely beaten around his head. After about a month of severe mistreatment he was released and told that he could “expect a visit” from the Iranian authorities. The trauma of the beating and mistreatment affected Reza’s memory.  He became anxious and disoriented. After his release Reza fled Iran, arrived in Australia and, after waiting for four years, was invited to apply for protection.

    Reza is unable to access any legal advice before submitting his application as he cannot afford a lawyer and the community legal services available cannot see him in time due to high demand. He does not have a lawyer at his Department interview and the interpreter speaks Dari, not Persian which is his language. He is confused, and scared to say that he does not understand the interpreter.  He does not know what is relevant and has difficulties with his memory because of his trauma and stress.

    Reza is refused protection by the Department because he could not remember certain dates of his detention and because he did not know to include certain details of his political activity. After his refusal, Reza’s family sends him a copy of a summons for his arrest which the Iranian authorities had delivered to their house months earlier.  They had not given it to him because they were worried for his mental health and did not want to cause him more stress.

    Reza misses his 21 day deadline to provide written submissions to the IAA because he cannot read or write in English and because the law is too complex for him to understand.   He is unable to obtain legal assistance in the 21 day timeframe. The IAA refuses his case a few days later without considering the summons and without meeting Reza or allowing Reza any opportunity to explain his situation and his fears of returning to Iran.

    Reza comes in to the ASRC to see the Triage service.  He is distressed and confused about what has happened.  It becomes apparent to the Triage Lawyer that Reza needs support from ASRC’s counselling service and someone is called immediately to speak with Reza and assess his mental health needs.  Once Reza feels safe, ASRC explains his legal situation to him with the assistance of a Persian interpreter.  ASRC looks at Reza’s case and finds legal mistakes in the IAA decision.  ASRC finds Reza a pro bono barrister to represent Reza at the Federal Circuit Court. The judge finds that the IAA did not make their decision according to law and makes orders that Reza’s case be returned to the IAA for a new decision to be made.

    The ASRC is expanding the capacity of its legal in response to the crisis and is launching an emergency campaign to fund new dedicated fast track lawyers to meet the increased community need.

    Case Study 4 – Importance of lawyers

    Mahmood, Yasmine and their three children are a stateless Rohingya family from Burma. Rohingya people in Burma are beaten, denied their basic rights and killed by the Burmese military. The United Nations confirms that 1000 Rohingya people have been killed by the Burmese military in a recent crackdown in Rakhine State in Burma.

    Mahmood and Yasmine arrive in Australia in 2013. They and their children were not permitted to attend school or work in Burma because they are not recognized as Burmese citizens.  They do not read or write in any language and only speak Rohingya. They have no identity documents as they are stateless and not eligible for birth certificates or any other identity document.

    Upon arrival in Australia, they ask for protection. After approximately 3 years of waiting and uncertainty, they are allowed to lodge their applications for protection. They attend a legal workshop at ASRC where the legal process, visa options and other key matters are explained to them with the assistance of a Rohingya interpreter. Mahmood, Yasmine and the children then attend an ASRC legal clinic where they are assisted to prepare and finalise their visa application forms and their statements of claims which in total amount to hundreds of pages of information.

    Shortly after their applications are lodged, the Department makes a request under section 91W of the Migration Act that the family provide identity documentation even though it is well known that stateless Rohingya people are denied identity documents. The letter received from the Department is threatening and warns the family that their applications may be refused if they do not provide the documents.  Mahmood and Yasmine are frightened and confused.

    They meet with a lawyer from ASRC who assists them to respond to the letter from the Department by preparing another statutory declaration with the assistance of a Rohingya interpreter to outline in detail why stateless people from Burma do not have identity documents. On advice received from ASRC, Mahmood and Yasmine provide detailed evidence about their home village in Burma to establish their identities in the absence of documents. ASRC also writes a legal submission to the Department in support of the family’s evidence.

    The Department accepts this evidence and progresses the family’s applications to the next step in the visa process.

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