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Legal access impeded at Villawood Immigration Detention Centre

Wednesday, July 25, 2012
By Michael Kah, Principal at Kah Lawyers & Donald Chen, Associate at Kah Lawyers

Immigration detention has been a constant and consistently controversial issue in Australia and just as controversial are the rights of persons in immigration detention. The Department of Immigration has generally been co-operative in granting legal representatives access to their clients in immigration detention, however this year has seen a marked change in the department’s attitude regarding access to legal representation for detainees in the high security wing awaiting removal from Australia.

On 1 February this year, a gentleman approached our office and instructed us that his father had been taken into immigration detention at Villawood Immigration Detention Centre (“VIDC”) directly from Sydney airport. The gentleman instructed us to contact VIDC to speak with his father to provide him with legal advice. We attempted to fax VIDC for 45 minutes without success and made several phone calls which rang out or were otherwise engaged. Finally we made contact with VIDC and we were advised by a female officer that the Department of Immigration and Citizenship (”DIAC”) has directed that we were prohibited from physically visiting this person at VIDC and we were also prohibited to have telephone communication or any other form of communication with this person. We responded with a fax requesting that DIAC explain their position, however no response was received and the person returned to Hong Kong the next day without receiving any legal advice.

This has not been an isolated incident. A Migration Alliance member had also experienced a similar incident in January as set out in their newsletter dated 5 March 2012. The Migration Alliance member had tried several times to communicate with the VIDC only to be told to the effect that the person in question was to be denied access to legal representation. DIAC’s official response to the Migration Alliance’s enquiries was that legal representatives may contact persons in detention and that all clients are allowed to contact their legal representative which is clearly not what has happened in our experience or the experience of the Migration Alliance member earlier this year.

The Framework regarding access to legal representation under the Detention Services Manual contained in PAM3 is provided under section 256 of the Migration Act as set out below:

“Where a person is in immigration detention under this Act, 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 for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention”.

Chapter 4 of the Detention Services Manual goes further and Point 1 of Chapter 4 states clearly:

1               Purpose

This instruction provides guidance on access to legal advice and representation by persons in immigration detention. Persons in immigration detention have the right to seek professional legal assistance of relevance to their immigration pathway (emphasis added).

Chapter 4 further elaborates that all detainees are to be informed of their entitlement to seek legal advice and informed of their right to receive visits from their legal representatives and their right to contact them by phone and to send and receive correspondence via fax or post.

Persons in detention are also provided with a “Very Important Notice” (‘VIN”) and a “Visa Options Notice.” The VIN sets out information required under s194 of the Act and includes advice that a person in immigration detention is eligible to apply for visas, their rights to request access to lawyers or consular representatives and their options for leaving Australia.

Point 12 of Chapter 4 also covers the methods for contact for Legal representatives whom are generally to be given unrestricted access to their clients in immigration detention through visits or, where available, video conferencing during normal business hours and after hours in emergency cases or by telephone at any time. Only in exceptional circumstances is access to legal representatives and other visitors to be restricted, and access must not be denied for disciplinary or behavioural purposes.

The rights to legal representation and legal review for detainees are not just part of departmental policy but also the wider international legal framework. Australia as a signatory to the International Covenant on Civil and Political Rights also has force on decision making and in particular, Article 9 and 10 of the International Covenant on Civil and Political Rights states that:

“Article 9: Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful”.

“Article 10: All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.

Although Article 9 does not directly address legal representation, it is implied that the rights to proceedings before a court also allows access to legal representation for those proceedings. The question that has to be asked is how could access to legal representation be so restricted in light of all of the above protections both in legislation and policy?

There is no clear answer as to why the VIDC had limited access to detainees due to the lack of transparency of their processes, however there are features in the legislation and policy which may hinder access to legal representation.

The Detention Services Manual states clearly that access to legal representatives and other visitors may be restricted in exceptional circumstances. Exceptional circumstances remains undefined and it is unknown as to the ambit of what is considered to be “exceptional” under policy. It should be noted that although s256 of the Act allows access to legal representation, it does not compel departmental officers to advice detainees of their right to request legal representation.

http://www.iarc.asn.au/_blog/Immigration_News/post/Legal_access_impeded_at_Villawood_Immigration_Detention_Centre/

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Donald Chen of Kah Lawyers named a finalist in Lawyers Weekly Awards

11 July 2012

We are very pleased to announce Donald Chen is a finalist in the Lawyers Weekly awards. Donald’s commitment to serve the community as a “young gun” solicitor has served him well. He has excelled in the Immigration Law field and is a valued team member of Kah Lawyers.

“Donald Chen from Kah Lawyers in the western Sydney city of Parramatta is a finalist in the Trudie Rogers Medical Lawyers Young Gun Award, where he will be up against nominees from international firms.”

http://www.lawyersweekly.com.au/news/stellar-list-of-awards-finalists-revealed

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Changes to Skilled Migration Program Scheduled for 1 July 2012

Changes to Skilled Migration Program Scheduled for 1 July 2012

From 1 July 2012 the Department of Immigration and Citizenship will implement a new skilled migration program, which will be known as ‘SkillSelect’. The new model will affect all Business Skills Migration, Independent Skilled Migration and Sponsored Skilled Migration visa applicants, as well as employers and state and territory governments wishing to sponsor skilled workers from overseas.

Changes to the program will include a two-stage electronic application process, whereby prospective skilled migrants must first submit an Expression of Interest (EOI) and will only be able to apply for a visa if they are invited by the Department to do so.

Invitations will be issued based on a points score which will be allocated to each prospective applicant by the Department’s electronic system. The points score will be based on information provided by the applicant about their age, English language ability, work experience and qualifications. There will not be any fee to lodge an EOI, however, prospective applicants will be required to obtain their skills assessments and IELTS test results prior to lodging an EOI because their visa applications could be refused if they submit any information that is misleading or incorrect with their visa applications.

The SkillSelect system will issue a limited number of invitations for each occupation group. Invitations will be issued on a monthly basis to applicant EOIs with highest ranking points scores in each occupation. Where EOIs points scores are equal, earlier submissions will rank higher. Once an invitation has been made, the applicant will only have 60 days to lodge a completed visa application before the invitation expires.

If an applicant is not issued with an invitation, the applicant’s EOI remains in the system for 2 years, the details will be made available to employers and state and territory governments who may wish to sponsor these applicants for a working visa to Australia. Applicants will also be allowed to update their information if they obtain further qualifications, work experience or IELTS test results in order to increase their points score. Prospective applicants who have lodged an EOI will not be granted a Bridging visa, which means that prospective applicants who have not been issued with an invitation will not be able to remain in Australia after their substantive visas expire.

The implications of the new SkillSelect system for prospective skilled migrants are that they no longer have the automatic right to apply for a visa and that they have no control over when they will be able to apply.

It is anticipated that the changes to the skilled migration program will significantly decrease the number of visa applications that are lodged, which will allow the Department to clear the current backlog of applications and reduce processing times, however, the uncertainty as to whether prospective applications will actually be able to apply and when they will be able to apply has effectively removed the advantage that onshore applicants who have completed qualifications in Australia currently enjoy.

In view of the significant changes, all potential skilled applicants should seek legal advice well before 1 July 2012 to determine their current migration opportunities under the existing scheme and the new scheme.

WAIVER

Whilst the author of this paper has taken all reasonable steps to ensure that the information contained in this paper is true and correct at the time of printing, it is no substitute for diligent enquiry to be made by any person intending to rely upon its content. There is no substitute for direct reference to the relevant legislation and policy and should my opinion be sought in relation to any aspect of this paper concerning a particular client’s case, that enquiry may be referred to the author for an opinion.

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