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MARTIN CLUTTERBUCK[*]
This article considers a multidisciplinary approach to human rights advocacy in the field of migration law, from a community legal centre perspective. The author concludes that an integrated casework approach involving both legal and welfare professionals facilitates the stronger presentation of humanitarian claims to remain in Australia.
Community legal centres have made an enormous difference to the Australian legal landscape both in the substance and style of advocacy. Community lawyering has focused on empowering individuals about their legal rights through casework and community legal education whilst agitating for change to the law through law reform[1]. Welfare issues, whilst often central to the legal difficulties and socio-economic disadvantages the client faces, are however generally referred out to other agencies.
The Asylum Seeker Resource Centre (ASRC), based in Melbourne, has attempted to develop a different model of community lawyering — one in which welfare services are provided in-house and in which legal and welfare professionals work collaboratively on a client’s case. Such an approach recognises that a client’s legal and welfare circumstances are intrinsically linked and require an integrated casework approach. This approach is born of necessity in the field of refugee and migration law. Many clients making applications for refugee status or requesting humanitarian permission to remain in Australia do not have the right to work, to any other form of income support or even to Medicare. For such persons financial survival during the refugee determination process becomes an imperative and procedural rights assume a particular significance.
Another feature of the ASRC model is the rights-based approach to advocating for clients wishing to remain in Australia for human rights/humanitarian/welfare grounds falling outside the Refugee Convention. The input of welfare professionals is an integral part
of this approach.
This article explores its strengths and weaknesses and concludes that despite various difficulties this model fulfils an important social justice function in empowering clients and allowing their case to be presented holistically. Such an approach can ultimately enhance the chances of a successful outcome. Along the way, legal and welfare professionals can benefit enormously from working together and developing a greater understanding of their respective roles and competencies.[2] Further, it is contended that such ‘humanitarian advocacy’ for clients facing return to situations of destitution or various types of human rights abuses in the developing world is an important feature of a globalised approach to community law.
The ASRC was established in 2001 to provide legal and welfare assistance to asylum seekers in financial hardship, particularly those with complex humanitarian cases. In 2006 the ASRC joined the Victorian Federation of Community Legal Centres, becoming Victoria’s newest CLC. A range of welfare services are offered to asylum seekers at the Centre.
The medical clinic offers free medical care and referrals to specialists for persons without Medicare. The counselling service provides ongoing psychological counselling to clients with mental health needs, including survivors of torture and trauma, clients with depressive illnesses and persons trying to come to terms with their imminent involuntary departure from Australia. The casework program provides basic material aid including food, and support to asylum seekers, and helps with transitional housing, transport expenses and other welfare needs.
Vocational training is provided by the employment service in addition to assistance with finding work and preparation of CVs. The legal service provides a day time casework service as well as a night service and assists asylum seekers at all stages of the refugee determination process, from recent arrivals to those who have exhausted their legal options to remain in Australia. A women’s legal advocate provides assistance to female clients with gender-related claims and with interrelated family law/immigration law issues.
The Centre’s philosophy revolves around three central principles, namely to:
1. create a communal self-help environment for clients designed to empower them and make them feel part of the broader community.
2. provide integrated legal and welfare support for clients during the refugee determination process
3. assist clients present their refugee and humanitarian claims to remain in Australia using a multidisciplinary approach.
Asylum seekers and migrants seeking access to the law are disadvantaged in a variety of ways. Their English skills are generally poor and there are often significant cultural and communication difficulties. They are often intimidated by the law, lawyers and the prospect of dealing with authorities, especially if they have experienced past torture or trauma. Those without any form of income support and who are reliant upon charities for support have lowered self-worth and feel helpless and powerless about their circumstances. For many there is a sense of isolation and ostracism from the broader community.
A legal empowerment approach to community law tries to redress this imbalance and assist clients re-establish their dignity and self-worth[3]. To this end the ASRC operates as a community drop-in centre for asylum seekers where a variety of services are available. In addition to accessing legal, medical, counselling and welfare services on-site, clients have free use of the internet and computers, can make local telephone calls, have free lunches and English tuition and access other social and recreation programs on offer. Clients use the services to stay in touch with relatives overseas, apply for jobs, undertake vocational training programs and improve their English. For those clients who may ultimately be unsuccessful and consequently be forced to leave Australia to return to difficult economic situations, the English language skills, vocational qualifications and work experience accumulated in Australia may provide a significant employment advantage and allow them to lead quantitatively different lives than they otherwise would have led overseas.
For many asylum seekers on the margins of society, a communal atmosphere in which they can access basic services and meet with persons in similar situations is an important feature of their social lives. Such an interactive and informal dynamic between clients, volunteers and paid staff assists in breaking down traditional barriers. The informal environment also encourages persons living unlawfully within the community to come and seek legal advice, which often results in a regularisation of their status in Australia and the alleviation of great stress and uncertainty. Conversely, this conversational, informal approach to client/lawyer relationships is time consuming. Use of law students and para-legal volunteers is critical to making this model workable.
If an asylum seeker is found not to be a refugee, they may request humanitarian permission to remain in Australia pursuant to Ministerial powers under the Migration Act. The Immigration Minister has a broad ranging non-reviewable humanitarian discretion to permit applicants to remain in Australia for various reasons, including human rights obligations owed to migrants in Australia outside the Refugees Convention, such as obligations pursuant to the Convention Against Torture (CAT), Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR). Additionally, the Ministerial Guidelines for the exercise of these powers make reference to other compelling reasons for wishing to remain in Australia, such as for torture survivors with strong subjective fears of returning home, persons with health problems, strong linkages to Australia, exceptional talents or high levels of integration within Australia.
While the Guidelines sound wonderful in theory, they exist primarily in theory. The success rate for humanitarian requests to the Minister averages 6 to 8 per cent,[4] and there have been a number of adverse decisions against Australia by the UN Human Rights Committee and Committee Against Torture for cases in which the Immigration Minister has declined to intervene pursuant to their humanitarian intervention power. The Minister’s humanitarian discretion does not operate as an effective safety net for dealing with non-refugee related human rights obligations owed by Australia.[5] Nevertheless the humanitarian discretion is critically important as the sole mechanism for the assessment of human rights and welfare related reasons for remaining in Australia.
Unfortunately, humanitarian discretion can only be accessed following a negative decision by either the Administrative Appeals Tribunal, Migration Review Tribunal or Refugee Review Tribunal. This, in effect, forces those persons with humanitarian claims, but not strong refugee claims, through the refugee determination process merely so they can access the Minister’s humanitarian powers. This in turn brings advocates of a ‘rights based’ approach into conflict with the Migration Act; Division 3AA penalises Migration Agents who assist asylum seekers with ‘unmeritorious refugee claims’, requiring them to have a certain percentage success rate with applications or face the prospect of being de-registered.
‘Poverty law’ is generally considered to refer to the area of law that applies to the financially poor in their day to day lives.[6] Arguably one of the most important modes of delivery of ‘poverty law’ is to advocate not only on behalf of those persons living in financial hardship within the community, but in relation to those facing return to a situation of poverty overseas. Many migrants wishing to remain in Australia come from situations of destitution or endemic human rights abuses in which they will inevitably be subjected to some form of infringement of their basic human rights in the foreseeable future. Examples include women returning to environments where domestic violence is tolerated or condoned, persons from countries in a state of generalised civil conflict or persons with serious health problems in countries with manifestly inadequate health systems.
A social justice or poverty law driven approach empowers clients from the developing world to present in the strongest possible terms their human rights or humanitarian based claims to remain in a country. As migration academic Dauvergne points out, both open and closed border theorists acknowledge that there are obligations on a just nation to admit some needy outsiders.[7] It is on the admission criteria that theorists differ.
On the question of criteria, there is a small but significant body of jurisprudence on the types of human rights breaches that may found a claim to residence in a host country. The European Court of Human Rights has, for example, found that a terminally-ill HIV/AIDS patient was entitled to remain in the host country because their return to a country with manifestly inadequate health care for them would breach the prohibition on torture[8]. The UN Human Rights Committee has found that a non-Australian migrant with underage Australian children was entitled to remain in the country because their removal would breach the prohibition on arbitrary interference with the family pursuant to Article 17 of the ICCPR[9].
There is a critical need for migrants to have proper professional assistance in the preparation of humanitarian claims to remain in Australia. A considerable amount is at stake, both for the Government in terms of a claimed adherence to international human rights obligations, and for those individuals for whom a negative decision could have devastating consequences. The Immigration Advice, Assistance and Application Scheme (IAAAS) provided by the Department of Immigration and Citizenship funds a limited amount of legal assistance to asylum seekers and other disadvantaged migrants at primary and review stages but does not cover legal assistance with the preparation of humanitarian requests to the Immigration Minister. The complete lack of public funding for the provision of legal assistance for humanitarian requests is more than unfortunate.
To try and meet local demand, the ASRC has developed a de facto clinical legal education program for law students to assist with the supervised preparation and representation of humanitarian requests. The benefits of clinical legal education as a means of legal service delivery to clients, students, the organisation and the wider community are manifest,[10] and clinics have been a particularly important form of representation of asylum seekers in Europe in situations where no public funding is available[11]. One of the advantages of the broad nature of the Minister’s humanitarian discretion, from a clinical legal education perspective, is that it allows law students to test and develop human rights arguments which may in turn engender a human rights focus in their later professional development. The fairly straightforward process for making a humanitarian request is well-suited to an area in which volunteers have limited expertise in the law, while providing maximum scope for creative human rights based advocacy.
The nature of the humanitarian claims presented by clients make it particularly adaptive to a multidisciplinary, welfare-focused approach to client advocacy. A client’s circumstances in Australia are often intrinsically connected to the human rights or humanitarian claims they wish to articulate for remaining in Australia.
The combination of a variety of in-house welfare services at the ASRC allows welfare professionals including doctors, psychologists, social workers and child welfare professionals to work closely together with legal professionals in developing and advancing a client’s humanitarian claims to remain in the country. It also allows for a responsive referral process which deals effectively with a client’s immediate needs. If a client presents for the first time, for example as someone unlawfully resident in the community requiring urgent accommodation, medical care, counselling and legal assistance, they are referred to the various programs on a triage basis within the same visit and within the same few hours. Staff from each program consult with one another to identify and prioritise a client’s immediate needs.
The multidisciplinary approach can be of enormous advantage in dealing with procedural issues as they arise for clients, such as in applications for work rights. This approach also results in multi-faceted advocacy on the substantive issue of the right to remain in the country, which is particularly useful in presenting a client’s human rights or welfare claims in their entirety. Immigration officials have a tendency to compartmentalise a client’s circumstances according to strict criteria. Such an approach often fails to adequately reflect the complexity of some client’s situations, and has the effect of fragmenting or diluting their claims. There is an almost complete disconnect in immigration law between family law and immigration law considerations, such as those involving marital breakdowns or child custody issues for asylum seekers.
It is often at the point when a client’s own circumstances become most complex that they require the greatest degree of social support and, conversely, have the strongest claims to remain in the country. Take for example the situation of a female asylum seeker with young children, whose marriage to her asylum seeker husband breaks down due to domestic violence and who goes to a women’s refuge with her children. Her children suffer emotionally following the breakdown of the relationship and the loss of contact with their father. The claimant suffers physically and mentally, and requires intensive counselling. She is at a late stage in the refugee determination process and has been a dependant on her husband’s unsuccessful refugee claim. She comes from a country in which domestic violence is rife, women’s rights are negligible, and she is most likely to lose custody of, and contact with, her children upon her return home. Her only avenue for the presentation of her new gender-based claims is the use of the non-compellable Ministerial humanitarian discretion.
In such a situation a multidisciplinary approach, in which lawyers and other welfare professional work closely together, is key. The claimant requires assistance from the medical clinic and counselling. She requires casework support in finding accommodation and welfare support for her children. Finally, she requires legal assistance in presenting her complex domestic and family law circumstances as a humanitarian appeal. This appeal will draw heavily on the counselling, medical and casework reports.
In some cases medical issues may be the key compelling feature of a client’s claim to remain in the country. In these cases a humanitarian claim will be presented using a combination of individual client medical reports, information about the available standard of medical care in the other country, and legal arguments about the content of the right to an adequate standard of health care.
The close interaction between law and welfare is mutually rewarding. Lawyers act essentially as in-house counsel to welfare professionals on a range of client issues. Welfare professionals help provide a broader social context to legal advocacy. This can involve engaging outside services or professional organisations to lobby on a client’s behalf on welfare-specific issues. But welfare professionals are squarely confronted with the law’s inflexibility and frequent unresponsiveness to welfare concerns, and there are other difficulties with a multidisciplinary approach.
As the ASRC operates as a single entity, a conflict of interest issue in the legal section may have repercussions for other programs. Issues of client privacy and confidentiality must be carefully managed to meet the various professional standards and requirements (medical, legal and social work). A mandatory reporting issue for one profession could conceivably affect the ability of another section to act in a client’s best interests. Information provided on the same letterhead from different welfare sections is sometimes perceived as being less than independent. This, however, is more a matter of putting in place relevant protocols and developing a common understanding of key roles, than a fundamental impediment to this type of service delivery.
The benefits of an integrated approach to welfare and law are great. For many migrants the multidisciplinary approach leads to a more meaningful appraisal of their circumstances and one in which social, welfare and legal issues are not isolated and compartmentalised, but rather viewed in their totality. Close co-operation with welfare professionals can lead to a more empathetic and informed understanding of the particular circumstances and pressures on the client.[12] And finally, significant health, counselling and medical input in a client’s case can provide important substance to human rights and humanitarian arguments presented on behalf of clients, contributing to a more dynamic and creative approach to client advocacy.
[*] MARTIN CLUTTERBUCK was principal solicitor of the Asylum Seeker Resource Centre in Melbourne from October 2004 until March 2007. He is now International Legal Aid Coordinator for the Department of Justice in the UN Mission in Kosovo.
© 2007 Martin Clutterbuck
email: clutterbuck@un.org
[1] See for example, John Chesterton, Poverty, law and social change: the story of the Fitzroy Legal Service (1996), 36–7; also David Nichols, From the Roundabout to the Roundhouse – 25 Years of Kingsford Legal Centre (2006), 15
[2] Lucy Fiske and Mary Anne Kenny, ‘ “Marriage of convenience” or a ”Match Made in Heaven”: lawyers and social workers working with asylum seekers’ [2004] 10(1) Australian Journal of Human Rights 21
[3] Philip Lynch, ‘Human rights lawyering for people experiencing homelessness’ [2004] 10(2) Australian Journal of Human Rights 4
[4] Senate Select Committee on Ministerial Discretion in Migration Matters, March 2004, p 3.9–3.10
[5] For case examples and analysis see Nick Poynder ‘When All Else Fails: The Practicalities of Seeking Protection of Human Rights under International Treaties’, (Public lecture, Castan Centre for Human Rights, 28 April 2003).
[6] Lillian Salinger, ‘Poverty Law: What is it?’, Legal Reference Services Quarterly, 5 (1992); see also Georgetown Journal of Poverty Law and Policy, Poverty Law Guides, http://www.ll.georgetown.edu/guides/poverty.cfm#cite2 at 16 August 2007
[7] Catherine Dauvergne, Humanitarianism, Identity and Nation: migration laws of Australia and Canada (2005), 60–61
[8] D v United Kingdom 30240/96 [1997] ECHR 25 (2 May 1997)
[9] Winata v Australia, (No 930/2000), 16 August 2001, UN Doc CCPR/C72/D/930/2000 and Madafferi v Australia, (No. 1011/2001) 26 July 2004, UN Doc CCPR/C/81/D/101/2004.
[10] Aubrey McCutcheon, ‘University Legal Aid Clinics: A Growing International Presence with Manifold Benefits’ (1998) Journal of Legal Education 58
[11] Stephan Anagnost, ‘Promoting Refugee Law as a Means of Challenging the Status Quo at University Level Education in Europe: The Role of the Refugee Law Clinic’ (2002) International Journal of Clinical Legal Education 47
[12] Nichols, above n 1, 17–18
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