Stuck in the System

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e story of another Iranian asylum seeker, referred to as P in documents before the Federal Court last week, shows how delays can quickly multiply. Now entering his fifth year in detention, P has seen his case passed between several lawyers, partly because he has been transferred between detention centers, but also because lawyers working pro bono are often swamped with cases. Around the time of his transfer, some original documents went astray while being passed between two refugee support groups. P appealed to the Federal Court against the tribunal's finding that he was not a refugee. By the time his case came up, however, P had no lawyer, was on medication for depression, and had no idea the hearing was imminent. It was only by chance that Lorna Thompson, an Australian woman who had taken an interest in his case, learned that the appeal was days away. Calling everyone she knew, she managed to find him a lawyer at the last minute. P lost that appeal, and is now waiting for a date for his appeal to the High Court. He has tried to kill himself twice, and wound up in hospital before Christmas after joining a hunger strike. Lawyers for P and two other Baxter detainees are now arguing in court that he needs urgent psychiatric treatment.

Last year, the review tribunal took an average of 106 days to rule on detainee cases. But longer delays often come from backlogs in the courts, to which asylum seekers can turn for judicial review of a tribunal decision. "There is just delay after delay," says Nick Poynder, a Sydney-based barrister who specializes in immigration law. The Federal Court, the Federal Magistrates Court and the High Court resolved 2,221 appeals in 2003-04; 163 cases were sent back to the tribunal for reconsideration. But the rules for launching an appeal are narrow. Immigration lawyer Nick McNally, of Sydney firm Parish Patience, says this makes the tribunal incredibly powerful. "The problem is that a lot of asylum seekers are unrepresented or ill advised in those early stages," says McNally, "and by the time they come to lawyers - when they go to the federal court, for example - the opportunity to prove certain facts is over."

Refugee advocates and lawyers claim that some members of the tribunal - who are appointed by the Immigration Minister - are biased. They say the quality of interpreting services is poor and that the tribunal often uses inaccurate information about conditions in the countries from which asylum seekers come. As well, the lack of guidelines on how to assess applicants' credibility increases the incidence of inconsistent and arbitrary decisions, says David Manne, coordinator of Melbourne's Refugee & Immigration Legal Centre: "The system is in desperate need of guidelines." One former tribunal member, who did not seek reappointment after several terms, says colleagues reacted differently to the government's role in their reappointment: "You can choose to say, as I did, Well, I just have to do my job and if I don't get reappointed, that's fine. But there may be other people who want to keep their job." Members often felt under pressure to meet productivity targets, but she says she never saw evidence of bias: "A great proportion of the time you do have an independent decision-maker."

Migration agents are contracted to prepare applications for refugee status through the federal government's Immigration Advice & Application Assistance Scheme (iaaas). But funding for the scheme is "woefully inadequate," says one migration agent who has been involved in iaaas work. This is particularly true, he says, when it involves working with people in remote detention centers: "The time constraints placed on contractors are so tight … to the point where one becomes extremely concerned about whether or not you can fully and properly represent that person." Nick Poynder says that when he did iaaas work in 1999, the tender allowed for half a day to interview the asylum seeker and prepare the case and another half day for the hearing. The migration agent, who asked not to be named, confirms that this remains the norm.