WINNING asylum is like a game of roulette, but the chips will be in your favour if you have legal representation and a judge who is a woman or has not worked in the immigration bureaucracy, a study of US asylum decisions has found.
Beyond the initial issue of the asylum seeker's credibility, these factors have a huge impact on whether a person will be granted asylum. An Australian law specialist said a study of asylum decisions in Australia would probably yield similar biases.
The killing in Gaza last week of Akram al-Masri, who was refused asylum in Australia, underlines the life-and-death impact of these decisions. The Immigration Department yesterday denied that al-Masri had applied to return to Australia this year.
Philip Schrag, a pre-eminent asylum lawyer at Georgetown University in Washington, said the single most surprising finding of the research was the impact of the judge's gender. "A female judge was 44 per cent more likely to grant asylum than a male judge," he said in Sydney last week.
The report, published in the Stanford Law Review , analysed 133,000 decisions over seven years. Professor Schrag said 70 per cent of asylum claims in the US were made by people who applied before they were arrested. Of these, only 16 per cent without legal representation were successful. The chances of success rose to 40.5 per cent with legal representation and 89 per cent if they were represented by law school clinics, non-government organisations or law firms working pro bono.
The third factor was the length of time a judge had served with immigration. The longer the judge worked for the Government the lower the grant rate.
Mary Crock, a professor of public law at the University of Sydney, said her "gut reaction" was similar research in Australia would yield "even worse results".