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QLS urges Government to meet asylum seeker and refugee obligations

Queensland Law Society has released the federal election 2022 Call to Parties Statement in anticipation of this weekend’s federal election.

The Call to Parties outlines key areas of concern for Queensland’s legal profession, and calls on political parties to commit to specific actions to address these concerns.

On the subject of migration, QLS has called on the Australian Government to take further action to meet its international obligations to asylum seekers and refugees.

Migration is a complex and ever-changing area of the law, which presents a set of unique and demanding challenges for the Australian Government and those engaging with Australia’s migration system.

Of concern, the Government’s policy and regulatory response to migration has, at times, been inconsistent with Australia’s broader international obligations, often lacking adequate funding for legal assistance for asylum seekers and other vulnerable visa applicants and visa holders in Australia.

Barriers to accessing legal assistance and advice impact both individuals and families seeking support as well as the overall efficiency of the legal system.

Visa applicants and visa holders in Australia are a particularly vulnerable demographic, who often experience violence and coercion whilst residing in Australia. The vulnerability associated with particular visa applicants and visa holders in Australia, and their risk to violence and coercion, can be attributed to a range of factors.

These include language barriers and reliance on interpreters to seek help, lack of familiarity with Australian laws and processes, mistrust of police as a result of past experiences, isolation from family, and a concern that speaking out would betray or bring shame to their extended family and community.

Further, temporary migration status creates significant leverage for control and intimidation by an abusive partner. Visa dependence is a key barrier to accessing legal support for domestic and family violence. Where a victim of domestic and family violence holds a visa that is conditional upon the existence of the relationship with their perpetrator, the capacity for the victim to access support and escape the violence is limited.

The family violence provisions under the Migration Regulations 1994 (Cth), which were introduced to avoid circumstances where visa applicants and holders are compelled to remain in violent relationships for migration reasons, are only available to a very narrow cohort of visa holders.

To address these issues, QLS has called on the Australian Government for a commitment to:

  • long-term, durable solutions for all refugees and asylum seekers who remain in offshore processing, in line with Australia’s international obligations
  • work with Australia’s regional neighbours, the Office of the High Commissioner for Refugees and the International Organisation for Migration to establish a long-term, cooperative, transparent approach to address the flow of asylum seekers into the Asia-Pacific region, in line with Australia’s international obligations
  • provide access to free legal advice and interpreter services to asylum seekers and vulnerable visa holders and applicants to enable more efficient processing and assure procedural fairness
  • enable individual assessment of the need to detain asylum seekers, and enact legislative limits on immigration detention and periodic reviews of detention
  • ensure that the best interests of the child are a primary consideration in all actions concerning children, noting that children should only be detained as a last resort, for the shortest appropriate period of time, and in community-based detention
  • reintroduce full merits and judicial review of all adverse decisions concerning protection status
  • implement consistent legal processes for determining protection status, which do not discriminate against applicants based on their mode of arrival
  • improve the migration program so that all temporary visa holders who experience family violence can access protection and services
  • expand access to the family violence provisions to any person who has applied for a permanent visa onshore
  • create pathways to permanent residency for all people on temporary visas who have Australian citizen or permanent resident children
  • ensure that vulnerable visa applicants and visa holders, including children in care, prisoners and persons with a disability and/or mental illness, have access to appropriate migration and citizenship legal advice and assistance
  • ensure eligibility for government support is based on a person’s need for protection or services, or their particular vulnerability, irrespective of their visa status
  • ensure that temporary visa holders who have experienced family violence are eligible for and have access to fully funded specialist legal advice and representation
  • reform the mandatory character visa cancellation process to ensure appropriate natural justice and procedural fairness, in particular for persons with a severe mental illness, intellectual disability or cognitive impairment
  • review pathways for permanent residency and citizenship for New Zealand citizens to enable access to services such as the NDIS.

This article has been reviewed by the QLS Migration Law Committee.

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