Immigration Minister Kevin Andrews has seemed confused about a lot of fiddly facts lately, not least when and if the Sri Lankan asylum seekers now on Nauru requested legal assistance. But perhaps the confusion lies in the Department of Immigration’s very specific definition of what asking for a lawyer actually entails.  In principle the Immigration Department is not opposed to asylum seekers being assisted by a lawyer. It’s just that asylum seekers have to find themselves a lawyer first. And there’s the rub.

“The government relies on an extremely narrow interpretation of the migration act, section 256, which states that if someone in immigration detention requests assistance it must be facilitated,” David Manne, the lawyer and coordinator of the Refugee & Immigration Legal Centre representing the Sri Lankan asylum seekers,  told Crikey.

“If pressed, the government agree that people be able to access legal assistance, but they put enormous obstacles in the way of accessing it ….”

“Most of the time asylum seekers have fled from very far off lands in fear, and they’re unacquainted with the local White Pages in Australia,” says Manne. “Asylum seekers don’t tend to bring a list of local lawyers with them in their back pocket … The way in which people ultimately access legal help in excised territory … is through concerned Australians who have had to smuggle in details of lawyers.”

In the interests of legal information smuggling, Crikey has created a step-by-step guide to navigating the obstacle course between an asylum seeker detained in remote, excised Australian territory and a lawyer. (As told to us by David Manne):

  • When you arrive by boat, you’ve most likely arrived without documents. Because you don’t have permission to enter Australia and you’re without documents or a visa, you are labelled unauthorised. As you probably know, it’s very common for you not to be able to get documents or visas to enter as you’ve usually been forced to flee from some sort of very dangerous situation.
  • When you arrive in excised places like Ashmore Reef or Christmas Island you are generally met by the Australian military (usually the navy) and then placed in a situation of severe confinement where most, if not all, of the contact you have is with Australian authorities, including the AFP, the military (such as the navy) and immigration officials. Other than that, your detention is largely incommunicado.
  • You are then generally kept in a situation of severe confinement or incarceration while you are questioned about the way in which you came to Australia. You’ll be asked why you came and how you got here and be questioned about your identity, background and character (these are called security and health checks…). If necessary this will be done with the aid of interpreters who are commissioned by the government.
  • During this period, you’ll be under immigration detention, and you may have been moved to Nauru by now. During this whole process, including when medical examinations are undertaken, you are generally held under heavy guard by Australian officials or contracted security guards (eg GSL guards) … Even when you’re in hospital or elsewhere you have a significant number of security guards watching over you …
  • This situation results in it being extremely difficult to contact the outside world for legal, family, welfare or moral support …The circumstances that are imposed upon you render you largely incommunicado… Oh, and a heads up: our Attorney General Philip Ruddock recently argued that “the idea that every asylum seeker, wherever they are in the world is entitled to Australian legal representation as of right I think flies in the face of what is either reasonable or possible.”
  • You could also be worried that there could be adverse consequences if you were to be “troublesome” or “difficult” by requesting a lawyer. You may already be suspicious of authority, depending on the situation you’ve fled from. The government take the view that unless you actively seek specific legal assistance, including, in practice, nominating who, specifically, you want to help you then you won’t receive assistance. The department says it’s not up to them to provide you with lawyers.
  • The way in which you may ultimately access legal help is through concerned Australians who smuggle in details of lawyers. These people somehow come into contact with you through official business and hear and heed your plea for legal help, eventually resulting in the smuggling in of information by a third party. (Warning: this doesn’t always work and if it does can sometimes take weeks.) There have been unconfirmed allegations that some of the people suspected of aiding and abetting someone like you accessing legal help have subsequently been sidelined in relation to their official duties …
  • Once you’ve been able to penetrate this largely incommunicado situation by faxing or phoning a particular legal adviser (providing you’ve had that information conveyed to you in surreptitious circumstances, essentially legal information smuggling), if you are then able to get that information then the game is up, the department then concede and you are then able to access legal assistance.
  • Congratulations! You’ve landed yourself a lawyer. All that’s left to do now is find the money to fly them out to Nauru. Failing that, you’ll be relying on their good will, their time, and their own personal wealth. It’s a big ask, just ask Julian Burnside QC. Crikey wishes you good luck in your endeavours to secure asylum.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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