BY SARAH STEPHEN
Every asylum seeker has the right to a lawyer, don't they? That's what the law says. Section 256 of the 1958 Migration Act states: "Where a person is in immigration detention ... the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration ... or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention."
In other words, if a detainee asks for a lawyer, they must be allowed one. The reality is very different. When asylum seekers are first detained, they are separated from other detainees until they have been interviewed by an immigration department officer. This is designed to stop what the government calls "coaching", otherwise known as notifying someone of their rights.
Sydney barrister Nicholas Poynder explained to Green Left Weekly that isolation detention has been part of government policy since the early 1990s. Poynder pointed out that legislation also deems that unauthorised arrivals have no entitlement to know their rights. If an asylum seeker doesn't ask for a lawyer, they won't be provided with one. "Asylum seekers are routinely denied access to lawyers. Requests are ignored by immigration officials, which is in breach of the migration act", Poynder explained.
Asylum seekers are interviewed by an officer from the Department of Immigration and Multicultural Affairs (DIMA), who asks them why they have come to Australia. The officer waits for them to use "trigger words" which will "engage Australia's protection obligations", such as "I am a refugee" or "I will face persecution if I return to my country". What many asylum seekers do, Poynder explained, is explain that they will be an asset to Australia.
"They say things like: 'I have good qualifications, I will work hard, I am a good person, I will be an asset to the community'. They're reluctant to mention their experiences of jail, torture or rape because they expect that these will weigh against them."
People are "screened out" if they don't provide the necessary information at the first interview, then they are deported.
"When I was working in Derby, near Curtin detention centre", Poynder recounted, "every day Australasian Correctional Management would bring busloads of asylum seekers into Derby to be interviewed. They had been 'screened in' to the claims process. They would hand notes to me from those who had been screened out."
Poynder kept one of the notes he was handed in 1998. "It has the asylum seeker's name and number on it, and says: 'Have not meet any lawyer!! Why?!! When?!!' We approached ACM to ask them why these people hadn't been given access to a lawyer. They referred us to DIMA. We told them that asylum seekers have to be able to see lawyers if they ask for them. The matter went all the way to DIMA in Canberra, and access was eventually given — but only after a fight. The asylum seekers put in claims and were accepted at the first level of assessment."
Another case Poynder recalled involved "a Sri Lankan who arrived at Sydney airport and said 'I am a Tamil from Sri Lanka. I will be persecuted if you send me home. I am a refugee.' Officials wouldn't let him apply for refugee status. They wanted to send him home." Luckily his family was waiting in the airport for him, and raised the alarm when he didn't come through, Poynder explained.
"We took his case to the Federal Court, and he was eventually given refugee status. In the course of things, we found out that airport officials had contacted DIMA in Canberra and notified them that the man was not seeking refugee status and was to be removed."
From Green Left Weekly, February 27, 2002.
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