As yet another high-profile asylum seeker case comes before the High Court, pro bono assistance is proving to be a crucial part of the process, reports Stephanie Quine.
Allens Arthur Robinson is acting pro bono for 40 asylum seekers whose case will be heard before the High Court next week.
After an injunction preventing the removal from Australia of the first group of asylum seekers under the Malaysian swap deal was extended last week by Justice of the High CourtKenneth Hayne, Allens became involved in the case after being approached by the Refugee and Immigration Legal Centre (RILC).
"It's all been quite urgent," said Malcolm Stephens, the lead Allens partner acting for the asylum seekers.
"We've been in contact quite a bit with the RILC. We worked on a High Court case with them last year on a pro bono basis and we've worked on many other matters with them over previous years."
It was in fact RILC director and refugee lawyer David Manne who won an injunction on 7 August to delay the transfer of the first asylum seekers expected to leave for Malaysia last Tuesday (9 August).
The injunction was then extendedto allow the High Court to consider the lawfulness of the Government's Malaysian policy in a special sitting expected to commence on 22 August.
According to Manne, the matter is one of "life or death" for the asylum seekers, as they fear being expelled to face a situation where they would lack protection and face a real risk of harm.
Stephens said the case centres on the Government's reliance on certain powers under the Migration Act and the issue for the High Court is whether or not those powers support the removal of asylum seekers to Malaysia.
The president of the Australian Lawyers Alliance, Greg Barns, told Lawyers Weekly this was a "very important issue for the High Court to determine", and agreed with Manne that it "certainly is about life and death in some cases".
"[The injunction] provides an opportunity for there to be debate and for the High Court to scrutinise the way in which the Migration Act has been utilised by successive governments, since Tampa 2001, to provide for so-called offshore solutions to asylum seekers," said Barns.
However, immigration minister Chris Bowen has insisted that the Federal Government has very strong legal grounds to support the policy.
"We will vigorously argue in the full bench hearing that this agreement meets not only our domestic legal requirements, but our international obligations. This is an interim injunction, this is not a finding," said Bowen at a press conference last week.
The fact that Malaysia is not a party to the Refugee Convention, coupled with a lack of precedent on many of the matters to be explored in the case, presents a significant challenge to the Government's plan to implement the swap with Malaysia.
Bowen has insisted that all necessary preparations for the Malaysian swap were continuing and that he was "not going to contemplate losing this case".
"I'm confident that when the full bench considers the case the injunction will be lifted, the transfer will occur and the arrangement will be implemented," said Bowen, adding that he had anticipated a legal challenge from the outset and has prepared extensively with the Solicitor-General with the ultimate aim of "breaking the business model of the people smugglers".
The current case bears some resemblance to one run last year by Stephens and Allens senior associate Alexia Mayer, which involved successfully acting pro bono in the High Court for two Tamil asylum seekers who were processed offshore.
"It's all been quite urgent"
Malcolm Stephens, partner, Allens Arthur Robinson
"Refugee work has always been an important part of our pro bono practice, but there aren't too many matters Allens are involved in on a pro bono basis which go to the High Court," said Stephens, adding that he enjoys working pro bono to help people in "very, very difficult situations".
"The consequences for these people, if they are sent away, can sometimes be terrible, so if we can do what we can to help ensure that they are treated fairly and lawfully, then that's the thing that can make a real change to their life.
"As lawyers, usually all we can do is stop a wrong decision being acted upon, rather than compel the right decision. But often, there's a new hearing and [asylum seekers] are granted a protection visa and it is very satisfying to know they can live in safety."