JRASP
Judicial Review Asylum Seeker Project (JRASP)
In November 2010, the High Court of Australia decided that all
asylums seekers arriving offshore have the right to judicial review
if they receive a negative Independent Merit Review decision.
Previously these asylum seekers, including young children, had no
further right of appeal.
There are thousands of asylum seekers currently in detention
centers around the country who have the right to access this appeal
mechanism. Many of these people are unaware of their right to
access the court, or are unable to access advice or assistance due
to language, remoteness and lack of understanding.
The Government, whilst providing funding for detainees to
receive legal advice for their initial application and independent
merit review, has provided no funding for detainees to access
judicial review.
The time limit for filing for judicial review is 35 days.
Many asylum seekers are missing this time limit because they are
not being informed of their rights and in any event, do not have
the funds to engage a lawyer to represent them. We think this
is a clear impediment to access to justice.
The current success rate for these matters is a staggering rate
of over 60% which, in our view, shows clear problems with the
Independent Merit Review process and is why we believe that it is
so important to assist these clients.
What CASE is doing
Given the importance of this matter, CASE for Refugees has just
set up a legal clearing house here in WA, called the Judicial
Review Asylum Seeker Project ("JRASP").
Legal Aid (WA) and the Law Society (WA) have all supported the
establishment of JRASP. JRASP is also working closely with
the Western Australian Bar Association and the Federal Magistrates
Court.
CASE is working closely with PILCH NSW and PILCH Victoria who
are also running similar projects. The agencies are working
together to form a nationwide approach to ensure that there is no
detainee who is left without assistance. Given that they are
geographically closest to CASE and would sensibly file in the Perth
Registry of the Federal Magistrates Court of Australia, CASE has
agreed to take all clients from Christmas Island IDC and Curtin IDC
and Leonora Alternative Place of Detention. This group of
client forms almost half of Australia's detention population.
Unlike the PILCH's who have some funding, we have none.
Because we have recognized the urgent and dire need for these
services, we have shuffled some limited funds away from our other
worthy projects to start JRASP. However, we only have a
solicitor working part time in this project along with some law
student volunteers. We urgently need support from the legal
community.
The aims of JRASP are to provide offshore asylum seekers
with access to judicial review by:
Education: JRASP will firstly educate asylum
seekers about their rights. This will involve information
sessions at Detention Centers in WA with the use of interpreters,
as well as distributing written information in many
languages. Unfortunately we cannot rely on those managing the
detention centers to assist us with this.
Co-ordination and referral: Whenever JRASP
receives a request for help, we will assess the legal merit of
their case. If we consider that there is a reasonable
prospect of success, JRASP will then seek to refer it to pro bono
counsel or Legal Aid to file the application in the court and
represent the client through the process.
Train: Many lawyers want to assist asylum
seekers, but it's out of their expertise. JRASP will
facilitate and train lawyers on relevant migration law.
Work has commenced
In September 2011, the JRASP project
commenced. Two lawyers from CASE for Refugees representing
JRASP have now visited both Christmas Island and Curtin detention
centres to start the work of informing asylum seekers of their
rights. Information sessions were well attended as word spread
throughout the detention centre and sessions were interpreted into
relevant languages. DIAC staff at the centre were very happy
with the sessions and were keen for more sessions to be arranged in
the future. As a result of the clients being told of
their appeal right, JRASP is now being inundated with requests for
assistance, with several new clients coming in each week and with a
total of almost 100 since commencement.
How you can help
CASE need pro bono support from law firms and
barristers desperately. For more information about
how you can help, please click here which takes you to our
Pro-bono page.
CASE also need donations and funding to keep this project
going as without funding, we will not be able to continue the
project.
How helping us can benefit your firm
For many practitioners this area of the law seems to be at best,
arcane, unapproachable, and able to be safely ignored.
However, decisions from the migration area are now cited more
regularly in "general" Commonwealth administrative law; and that
Commonwealth law is finding its way increasingly into State
administrative and commercial law: see, eg, Kirk v
Industrial Court of New South Wales [2010] HCA 1; (2010)
239 CLR 531 and decisions in the seemingly further remote
areas such as the Constructions Act 2004 (WA) in
Thiess Pty Ltd v MCC Mining [2011] WASC 80 and Re
Graham Anstee-Brook; ex parte Mt Gibson [2011]
WASC 172. Also, modern commercial law is increasingly
being impacted on by the relevant administrative principles,
whether in planning, environmental, native title or other
areas.
The Judicial Review project also provides an excellent
opportunity to expose your junior solicitors to
administrative law, or litigation generally. Also, this may
present an opportunity for graduate lawyers in your office to gain
some early experience in conducting litigation and instructing
counsel. Further, your firm may be able to recoup costs
pursuant to rule 12.07(3) of the Federal Magistrates Court Rules
2001 in the event that the application succeeds.
Training - for free!
We realize that this is a fairly specialized are and that most
firms do not have experience in migration law and specifically,
offshore appeals. For this reason, we will be running a
training course to train lawyers in this area of law. There
will be CPD points available and the course will be free for those
firms who are willing to assist the project in a pro bono
capacity. Matt Howard SC will be presenting the training and
written materials will be provided. At this stage we are
envisaging that the training will take place in early February 2012
and will probably run over 2 x 3 hour sessions, probably out of
work hours. If you are interested in attending, please email
us - a brochure with contact details is attached here.