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.

Submissions also challenged the assumption that the majority of cases determined by the courts were represented by lawyers or advised by migration agents who encouraged unmeritorious claims - and by implication, therefore, challenge a key rationale for this Bill.

The same concerns were raised when the Senate Legal and Constitutional Affairs Committee examined the Bill earlier this year. Of the 25 submissions to the committee, only two were in favour of the Bill.

This is because the Bill introduces such dramatic changes to the dealing of cases.

Under this legislation migration matters are directed primarily to the overworked Federal Magistrates Court. The Bill would impose shorter time limits for applying for judicial review, along with an obligation for migration agents and lawyers to certify that cases have a reasonable ground for success before being lodged.

There is real concern that this will hamper a lawyer’s ability to assess the chances of success. Generally lawyers lodge an action, then seek documents under Freedom of Information (FOI) laws, and as they gather evidence, learn more about a case. Shortened time limits will make it almost impossible to make a judgment in case information comes to light that may weaken the client’s case.

The Bill also allows the High Court, Federal Court and Federal Magistrates Court to summarily dismiss proceedings if the court is satisfied there are no reasonable prospects of the case succeeding. A real concern here is the fact this provision is not limited to migration law but covers all proceedings commenced in these courts. Thus the potential implications of this legislation extend well beyond the migration field.

On the face of it, the public may feel that it is reasonable that cases which can’t succeed should not be allowed to clog our court systems. In reality it will be almost impossible to determine what “reasonable prospect of success” actually means. The Bill itself tells us that:

proceedings need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.

Summary dismissal means the court does not hear the case, does not hear the evidence and would move to dismiss without accessing departmental files or tribunal proceedings.

Courts already have the power to summarily dismiss proceedings but they also have clear guidelines as to what type of proceedings should be dismissed. This new definition muddies the water to such an extent it may actually exacerbate things for the government. Judges faced with a motion to summarily dismiss an action may ask for more material, increasing the time and costs of each case, and possibly pushing more cases to the High Court.

The same definition for summary dismissal applies to another contentious provision of the Bill: the requirement that if the court at the time of giving judgment finds the litigation had no reasonable prospect of success, it must consider if a personal cost order should be made against a person, lawyer or migration agent who encouraged the litigant to commence or continue litigation.

The wording of the Bill is important. It very clearly states that the court “must consider whether an order under this section should be made” and sets out that a person or lawyer must not encourage another person to litigate where the litigation has no reasonable prospect of success. In other words, there is no discretion on this count; if a case fails the test, the court must consider imposing costs. Draconian stuff, to say the least.

There can be only one aim to legislation such as this and that is to dissuade lawyers taking on test cases, particularly in the area of refugee law. Asylum seekers and those affected by adverse migration decisions will find it almost impossible to get someone to assist and act for them. Pro bono services will cease.

This serves not only to deprive the applicant of a basic right in a society ruled by law, but also to deprive the courts of professional legal advice which can streamline and present facts in the correct manner. Once again, this will only serve to clog the courts with unrepresented litigants, increasing the pressures on the court system.

Unrepresented litigants have been found to cause such problems for the courts that the Federal Magistrates Court  called for more pro bono representation or legal aid. In fact the court has found it essential to establish a pro bono scheme to assist applicants under its current workload.

The Federal Court adopted a “Self Represented Litigants Management Plan” to address problems raised in respect of self-represented litigants. This plan includes the provision of more staff to assist litigants.

One further area of concern is the almost indiscriminate scope of the provision that imposes costs. This would apply to any person who may have encouraged someone to commence or continue migration litigation in a court, if the action were deemed (once again) to have no reasonable prospect of success.

Submissions to the Senate Legal and Constitutional Affairs Committee raised concerns that this clause is so ambiguous it may apply to community groups, interpreters employees at legal services, lawyers, migration agents and advocates, making them all potentially personally exposed to paying the costs of the other party, that is, DIMIA.

Overall, the outcome of this seriously flawed legislation will be that the cases that most need representation will not be able to secure anyone to assist them. In practice, it is often these cases that have the most profound effect on common law, changing outcomes for litigants who follow.

Thus, the Bill threatens to not only restrict the rights of those most at need of protection under the law, but also has the potential to hamper the refinement of decision-making and judgement in one of the most troubled fields of public policy in Australia. In view of the litany of errors recently discovered with DIMIA's administration of the migration system, what we need at this time is not legislation that turns the screws on those at risk but laws that help to clarify the messy field of migration law and decision-making. This Bill is not a solution.