New Bill will leave refugees unrepresented

Advocates, who assist or encourage refugees and asylum seekers to seek judicial review of migration decisions, may be liable for the costs incurred under proposed changes to legislation.

The impact of the proposed legislation is already being felt, with community lawyers and legal advisers announcing they will be unable to take on pro bono work for asylum seekers once this Bill has been passed.

The Migration Litigation Reform Bill 2005 is one of a series of Bills which is aimed at restricting - some would say preventing - judicial review of migration decisions. Like all migration Bills, it is complex. But the fact that it should pass the government-controlled Senate easily means very little attention has been paid to its possible ramifications.

There is no doubt that the outcome of this legislation will be far reaching and potentially retrograde, especially for those already disadvantaged under the current system.

It directly affects litigants, their advisers, legal representatives and migration agents.

The origins of the Bill are contentious and opaque. Attorney-General Phillip Ruddock has stated that the measures in this Bill are drawn from recommendations of the Migration Litigation Review Committee 2003.

The review - known as the Penfold Report (pdf file 114KB) - was established to examine the costs imposed by delays in resolving migration cases in court, particularly those for refugee status.

The committee was instructed to inquire into, and report on, any area that may impose on the efficiency of the court system, including measures for more efficient management of migration cases and the adequacy of existing frameworks for ensuring that members of the legal profession do not encourage unmeritorious cases.

It is impossible to know, however, if the Bill does reflect the review committee’s recommendations as they have never been made public and are unlikely to be revealed. We can only speculate whether the content of the Bill reflects the committee’s concerns.

What we do know, though, is that the Bill reflects claims by the government that the majority of migration matters brought to court are unmeritorious, that is, they have little chance of passing judicial muster.

Philip Ruddock, in his role as attorney-general and previous immigration minister, has made no secret of his displeasure with those who seek judicial review of migration decisions, claiming that 90 per cent of migration matters brought to court are essentially without merit.

Representations to the review committee of 2003 questioned these claims and stressed that that it was flawed to limit access to justice only to those cases pre-determined to have merit.