This post examines Australia’s policies on legal assistance for asylum seekers and refugees in the wake of tennis World No 1 Novak Djokovic’s much-publicised visa saga.
With Rafael Nadal’s victory over Daniil Medvedev, the 2022 Australian Open drew to an end – a competition that may be remembered more for its off-court dramas than its on-court triumphs. Most sensationally, the Open saw the arrival, visa cancellation, detention, and ultimately deportation of World No 1 tennis player Novak Djokovic. The litigation accompanying the affair provoked enormous public interest. While Djokovic was successful in having the initial visa cancellation quashed on the basis that he was denied procedural fairness, the Minister for Immigration responded by exercising his so-called ‘God Power’ under section 133C(3) of the Migration Act to cancel the re-instated visa – a decision that ultimately survived a judicial review challenge in the Full Federal Court.
The Djokovic affair piqued interest in Australia’s general treatment of asylum seekers and refugees – some of whom were detained, along with Djokovic, at the Park Hotel in Melbourne. Commentators sought to unpick Australia’s detention policy – how it is that a recognised refugee like Mehdi, who arrived in Australia in 2013 as an unaccompanied child, could be held in a hotel room nine years later. Ben Doherty, who has consistently reported on the parlous conditions of those caught by Australia’s refugee policies, noted the ‘absurdist turn’ that a world No 1 tennis player could refocus attention on a situation that had endured for years. Even the Prime Minister seemed, at best, unaware that 25 of the 32 detainees at the Park Hotel had been formally recognised as refugees.
Although Djokovic’s challenge was ultimately unsuccessful, the affair highlights the importance of access to lawyers and the courts. When challenging each visa cancellation, Djokovic had the resources to assemble an effective legal team. In contrast, asylum seekers and refugees often face significant hurdles in accessing lawyers and the courts to safeguard their rights. Australia’s policies have the effect of exacerbating, rather than easing, these barriers to access.
For those who travel by boat, Australia’s policy of ‘turnbacks’ and ‘takebacks’ under Operation Sovereign Borders clearly hinders access to lawyers. Dastyari and Ghezelbash note that asylum seekers turned back to Indonesia are not given the opportunity to make a protection claim at all, while those returned to Sri Lanka and Vietnam first undergo ‘enhanced screening’ at sea to determine if they should be granted access to the full refugee status determination process (only two people had apparently been ‘screened-in’ through this process as of 2020 – see p 22). The Human Rights Committee has raised concerns that these assessments – made ‘without access to counsel or an effective possibility to legally challenge the decision’ – do not guarantee full protection against non-refoulement ([33]). Similar concerns were raised by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment ([30]).
Accessing legal advice is also difficult for those who arrive by plane and seek asylum at the airport before being ‘immigration cleared’. Jefferies, Ghezelbash and Hirsch shine a much-needed light on the complex airport entry-screening procedure, which they consider to be ‘designed in a way to limit avenues available for reviewing adverse determinations’ (p 183). In a Policy Brief, the authors recommend that ‘screened-out’ applicants be entitled to a review by an independent decision-maker before removal from Australia, and that all applicants be given access to ‘legal advice, competent interpreters and officials from UNHCR during both the preliminary decision and review stages’ (p 16). Jefferies also suggests the creation of an ‘on-call’ legal assistance program at airports to advise asylum seekers (p 21).
Asylum seekers who arrived in Australia by boat between 13 August 2012 and 1 January 2014 – the so-called ‘Legacy Caseload’ – also faced significant issues securing legal assistance. In March 2014, the government dramatically reduced access to the Immigration Advice and Application Assistance Scheme (IAAAS), which provides free immigration advice and application assistance to eligible asylum seekers. This left asylum seekers who arrived without a valid visa largely ineligible for government assistance (a small proportion could access the Primary Application Information Service (PAIS) scheme). The Australian Human Rights Commission (AHRC) reports that free legal services were unable fully to fill the gap left by the withdrawal of IAAAS assistance (p 33). The Justice Project found that the decision to cut access to the IAAAS left many asylum seekers to navigate ‘complex legal systems alone and without access to essential legal assistance’, with consequences including the risk of refoulement and ‘increased burdens on decision-making officials and the courts’ (pp 22–23). Both the AHRC (p 15) and The Justice Project (p 40) recommend that the government reinstate access to IAAAS to all asylum seekers who require it. The Special Rapporteur on the human rights of migrants also referred to Australia’s need for sufficient publicly funded legal assistance ([91] and [126]).
Australia’s policies of offshore processing and detention only increase the difficulties in accessing legal assistance and the courts. For example, the Refugee Advice & Casework Service (RACS) has reported that assisting clients in detention is often frustrated by their inconsistent access to the internet and phone, and by the Australian Border Force’s practice of moving people between detention centres without notice (p 11).
As a State party to the 1951 Refugee Convention, Australia has an obligation not to return a refugee to harm (article 33), or to penalise a refugee for entering the country illegally (article 31). These obligations entail the need for a fair status determination process to determine whether a person seeking asylum is in fact a refugee. In addition, Australia is obliged to grant refugees – and, arguably, asylum seekers (see eg Hathaway, p 915) – free access to courts under article 16 of the 1951 Refugee Convention. Article 16 should be interpreted in a way that ensures that effective access to courts is available. This requires the State to take positive measures on a case-by-case basis, such as providing legal aid and interpretation services where necessary. Article 16 is an important complement to Australia’s obligations under articles 13 and 14 of the International Covenant on Civil and Political Rights (the latter of which has been interpreted as not applying to the review of a failed asylum application – see e.g. Chadzjian v Netherlands, [8.4]). In a recent speech, Dr Jacoba Brasch QC, the 2021 President of the Law Council of Australia, reflected that ‘[t]he very factors that drive people to seek asylum are likely to render refugees and asylum seekers incapable of affording private legal assistance’ (p 11). Facilitating access to lawyers is critical to ensuring that asylum seekers can effectively make a protection application and to safeguarding their rights. A failure to do so risks breaching Australia’s international obligations towards asylum seekers.
Emma Dunlop is a PhD candidate at UNSW Sydney.