DISADVANTAGES MIGRANTS FACE WHEN ACCESSING THE COURTS:

There are a number of disadvantages migrants face when attempting to access the Court system, which overall, severely impede on their ability to both bring a case to court and then subsequently participate in an active and meaningful way within the actual hearing. These disadvantages include language barriers, financial issues, the length of trial proceedings, difficulties in understanding their rights under Australian law, discrepancies in Police investigation and interrogation, misunderstanding of rights and difficulties in comprehending trial proceedings and consequent participation. These disadvantages are of a cyclical nature, with at least one disadvantage contributing to the cause or creation of another.



LANGUAGE BARRIERS:

There exists a great difficulty of many migrants, especially those from non- English speaking countries to be able to fully comprehend the rights that they are entitled to in Australia. Access to quality interpretation services serves as the only real chance a migrant, who speaks little no English, will be able to meaningfully participate in all Court proceedings, and gain full involvement and inclusion from the rest of the Court or Tribunal. The language of the Courts and Australian Legal system is English, despite there being no Law to fully justify this. Thus, in theory, Migrants should have access to Court proceedings in their Native tongue; however provisions are rarely, let alone, ever made in this type of situation. Common Law Courts generally have the judicial discretion to determine whether or not a person may provide evidence in their own language through an interpreter. However, Federal Courts do not provide for a statutory right to an interpreter. When being charged for a Federal offence, however, the prosecution generally organises for the provision of interpreters for those who have limited ability in English. The need for an interpreter and the extent of difficulty faced by migrants depends on their role in the Court proceedings; as a witness or a party to the hearing. Language is a significant element in a Court or Tribunal Hearing, as it is through this mechanism, are rights and obligations stipulated and fulfilled. According to the International Covenant on Civil and Political Rights, Australia is obliged to provide all people with equal representation before all courts and Tribunals. The use of an interpreter would constitute a sufficient ‘even playing field’ for those migrants who struggle with English. An Australian Law Reform Commission report recommended that when a party or witness requests assistance in language, through the use of an interpreter, there should be a presumption in favour of granting the request. The Legal system is known for its complexities and complicated proceedings, and when a lack of language skills is evident, a heavier burden in placed upon the migrant to be able to fully participate in the hearing.


FINANCIAL ISSUES:

The cost of Court proceedings can create a significant burden on Migrants, having used much of their available finances to process their applications for Visas in Australia and then subsequently, having limited access to Social Welfare Services and Benefits. Additionally, there exists a great challenge for many migrants to find employment upon arriving in Australia, due to a combination of issues such as; language barriers, unrecognition of educational qualifications and discrimination upon application for employment. Thus, many migrants are left without employment, necessitating the need for a small proportion of those entitled to do so; gain unemployment and social security benefits from the Government, which are, in theory, minimal and scarce. Although some organisations, such as Community Legal Centres may offer legal services t struggling migrants, advice and representation is often limited and of poor equality, especially if a significant language barrier exists or the Migrant is unable to provide any finances as acknowledgement of the Lawyer’s work. Most newly arrived migrants who wish to challenge immigration decisions, especially Refugees cannot afford legal representation, let alone the cost of applying to have the case heard in the relevant Court or Tribunal, with most applications costing approximately $1400. This cost is also only the beginning point for the case to be heard, the actual trial and the costs associated with preparing the relevant paperwork and evidence for the trial. Those migrants granted a Resolution of Status Visa do not have access to most welfare benefits, and the holders of these Visas are generally more likely to be compelled to appeal a decision made by the Department of Immigration and Citizenship, thus severely impairing any pursuit of justice.


THE LENGTH OF TRIAL PROCEEDINGS:
Many Migrants are not aware of the extent of trial proceedings when lodging an appeal to the relevant Tribunal or simply mounting a case involving Australian law to the Courts. Trial proceedings are hindered by the fact that many migrants find it difficult to obtain legal representation, thus pushing their case back due to the inability to comprehend the trial proceedings and legal terminology without adequate representation. This reveals the disadvantages migrants face to be of cyclical nature, where one disadvantage contributes to or creates another. Furthermore, most Tribunals, namely the Migration Review Tribunal and the Refugee Review Tribunal have lengthy court appearance lists, unknown to most migrants when applying for a hearing. This consequently places an excessive burden on those migrants who have been ordered to leave Australia within a specified time frame, and need to have their issue resolved as a matter of urgency. In addition, those migrants who wish to appeal decisions whilst in Detention face innate disadvantage in being granted the right to remove themselves from the Detention Centre to have their case heard at the relevant Court or Tribunal. The strict guidelines regulating Detention Centres makes it near impossible for a migrant to mount a court case concerning an immigration issue. The extent of trials can also be furthered when the issue is one of complicated nature. Both the Migration Review Tribunal and Refugee Review Tribunal have the right to investigate further evidence, other than that provided by the appellant migrant, increasing the time taken to arrive at a decision. Migrants who have visas cancelled also must take time off work to address the issue and mount the Court case, severely impeding their reputation in the workplace and limiting the finances available to cover the costs involved in the hearing. Again, this is further evidence of the cyclical nature of the disadvantages faced by migrants when accessing the Court system.

DISADVANTAGES FACED DURING POLICE INVESTIGATION AND INTERROGATION:
Many migrants face serious disadvantage during police investigation and interrogation. A number of studies, namely the Australian Law Reform Commission’s Report; Multiculturalism and the Law, revealed that the Police are discriminatory in the way they treat offenders of differing ethnic backgrounds. Some migrants have reported to newspapers and other media sources that they are treated unfairly due to their physical appearance and ‘distrust’ in their race in general. Furthermore, some have also reported verbal threats, derogative and racial comments and excessive force used by Police during the interrogation and investigation process. To make matters worse, many migrants are not aware of the Complaint systems apart of many organisations, including the Police and are therefore kept in silence. Many migrants, also with limited ability in English have not be aware of their right to silence during such investigations and henceforth, may be disadvantages if a court case is mounted against them if their statements are used as evidence against them. Many migrants would also find such interrogation intimidating, especially with limited knowledge of English, propounded by an ignorance of the right to legal advice or representation in such circumstances. In response to the voiced treatment of many migrants by Police, many Police networks have established cross cultural awareness components in their training programs.


UNDERSTANDING RIGHTS:
Many migrants, especially those with limited English ability are unaware of their rights under Australian law. The differences in Legal system procedures and law often lead to ignorance, and many migrants are therefore oblivious to the wide ranging rights they have whilst in Australia. For example, many migrant women are unaware of the criminality of Domestic Violence under the Australian legal system, and are therefore left in silence and suffering when, or if it occurs. Although there are a number of pamphlets published by the Immigration Rights and Advice Centre in a myriad of languages, many migrants are unaware of the services available to assist and support them. Negative experience with the law in the country of origin may also defer migrants from completely utilising the both the court and review of rights procedures available in Australia. Migrants may enter into contracts without being subjected to a full and complete understanding of their rights, thus making Contract Law a major issue in the context of Migrants understanding their rights. It is the sad reality that many migrants are taken advantage of, due to the ignorance associated with their lack of complete understanding of the Australian legal system, which is an issue that needs to be looked at closely in order to combat misleading and deceptive conduct shown to migrants who are already in the dark about the nature of their rights in Australia.



PARTICIPATING IN AND UNDERSTANDING COURT PROCEDURES:

Most people find court proceedings both intimidating and confusing. This plight is worsened for those with Migrants who have limited understanding of English and for those who have difficulties in accessing appropriate legal representation to combat any discrepancies that may arise in the process of mounting and then subsequently sitting in a hearing in a Court or Tribunal. Fully participating in court proceedings means being able to actively contribute to the course of evidence and provide detailed insight into the case at hand. Many migrants cannot provide this, due to a lack of interpretation or legal representation services provision. It is therefore highly unlikely that many migrants can adequately respond to the issue involved in their case, thus severely hindering the process used to formulate the outcome of the trial. Furthermore, the legal terminology involved in cases can become vague when interpreted, meaning most Migrants never actually understand the elements crucial to proving their case. The provision of assistance is quite limited, as many legal professionals simply do not have the time to address every issue involved in a migrant’s case; namely language barriers and the understanding of legal complexities. Many migrants are therefore severely limited in the actual trial process, generally being under-represented and underprepared.



It is evident that migrants are a number of disadvantages in accessing the Court system of Australia. Many of the innate disadvantages lying in the hindrance of such access have been acknowledged and then subsequently dealt with in a primitive way, creating further disadvantage for many migrants. The current state and extent of disadvantage creates a grim future for full and active participations of migrants in court proceedings, and immediate, workable law reform is crucial today to limit disadvantage as ultimately provide migrants with the justice they deserve and are entitled to, as both migrants and members of the Australian community.



SOURCES:

HAMPER, David BOESENBURG, John and KENNY, Christina Legal Studies Preliminary (Second Edition), Pearson Education Inc, Sydney, 2008

Australian Law Reform Commission Multiculturalism and the Law (Report), 1992
Sourced from:
http://www.austlii.edu.au/au/other/alrc/publications/reports/57/