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:
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.
In the event that your client is detained or detained in Villawood Detention Centre, we suggest that you take the following steps to contact your client:
1. Contact client on personal mobile number (this is not possible for irregular maritime arrivals (“IMA”) as mobile phones are not allowed to be carried by IMAs in detention).
2. Call Villawood Detention Centre on (02) 9780 9220 and request that you speak with the client.
3. If you are unable to access VIDC through the telephone, send a fax to Villawood Detention Centre on (02) 9780 9289 or alternatively on (02) 9780 9118.
4. Attend VIDC directly and request in person at Villawood Detention Centre access to your client.
The extent of DIAC’s attitude to legal representation for access to detainees remains to be seen, however until the detention services manual’s considerations and the protections afforded under international law have been implemented into legislation, there will continue to be some flexibility as to the extent that legal representatives are allowed to access clients in detention.