The fall of Kabul to the Taliban in August 2021 initiated a humanitarian crisis which has significantly restricted the rights and freedoms of the Afghan population. The effects of the crisis transcend Afghanistan’s borders. Months on from the Taliban takeover, these effects continue to be felt by members of the Australian Afghan community whose protection on Australian soil is only temporary or whose families and friends are trapped within the country. Pro bono lawyers in Australia and overseas are at the forefront of the response to this ongoing crisis.

“The needs are immense, and they’re not going away.”

– Jasmine Simperingham, PILnet

In this article, the Australian Pro Bono Centre explores:

• the tireless work that a select group of legal assistance organisations are undertaking to bring people to safety
• the challenges involved in meeting the enormous and escalating legal need
• the importance of centring the voices of those affected
• the key skills that pro bono lawyers need to assist with the crisis, and
• the ways in which pro bono lawyers can help.

The crisis has triggered an overwhelming increase in forced displacement and has exhausted existing avenues for humanitarian aid. In the weeks following the fall of Kabul, the Refugee Advice & Casework Service (RACS) received more than double the number of enquiries it would ordinarily receive, and the efforts of Refugee Legal have been “beyond overdrive”.^[1] Pro bono providers worldwide have stepped up to assist those affected by the crisis in the form of emergency evacuation applications, family reunion visas, offshore humanitarian visas, and requests for reassessment of refused cases.

In the immediate aftermath of the fall of Kabul, RACS’ mission was to advise Afghans in Australia and abroad on how to register their family members with the Department of Foreign Affairs & Trade, in the hope of securing a flight with Australia’s military airlift operation. Similarly, Refugee Legal, together with lawyers from pro bono partnership law firms, assembled a special evacuation legal team to provide urgent assistance to people at imminent risk in Afghanistan who were seeking evacuation to Australia.

Once the last plane left Afghanistan, the work pivoted towards longer-term support. In collaboration with pro bono firms, lawyers, and barristers, RACS established the Afghanistan Response Clinic to help Australians apply for visas that allow their families in Afghanistan to join them in Australia. Refugee Legal has also established the Afghanistan Legal Hotline and the Afghanistan Legal Clinic to assist people in Australia impacted by the crisis. This has involved collaboration with pro bono partners locally and globally to address the legal need.

In response to the crisis, PILnet, a global non-governmental organisation (NGO) that coordinates the Global Refugee Forum Legal Community Pledge,^[2] worked with refugee community leaders to hold a global consultation on the legal needs of Afghans. PILnet also facilitated cross-border connections amongst the legal community, and is consolidating information on an international scale so that the Afghan community is aware of the legal services that are available to them in any given country, including Australia. This has been undertaken in collaboration with ATLAS Woman – a female identifying public-interest network which has an active membership in Australia – Fordham University, the UNHCR, and other organisations. PILnet has also matched refugee-led organisations supporting Afghans in need of legal assistance with law firm partners, supported the development of collaborative multi-partner pro bono projects to increase access to legal assistance for Afghans seeking legal pathways to safety through family reunification and humanitarian visas, and undertaken other activities to facilitate a more coordinated response amongst the global legal community to the crisis.

David Manne, Refugee Legal’s Executive Director and Principal Solicitor, described the heart of the challenge facing community legal centres (CLCs) as ensuring there are sufficient resources to meet the enormous and escalating legal need.

“The key issue is about continuing to build the legal resources to meet the need; to build systems that are capable of delivering legal solutions to people who are caught up in the Afghanistan crisis, systems that are capable of not only initial intake but really, being able to ensure that critical advice and legal assistance is provided to people as soon as possible,”

– David Manne, Refugee Legal

PILnet’s Jasmine Simperingham agreed. “Everyone is overwhelmed, our legal partners who usually stand up quickly to respond to PILnet’s requests are at capacity, people are approaching PILnet with very real protection risks and our ability to refer these people to partner firms and legal aid actors is limited,” said Jasmine.

Part of the solution to this obstacle is partnerships between NGOs and pro bono law firms. David Manne described the legal sector’s response to the crisis as “one of the strongest legal responses we’ve ever seen from the legal profession in history”.  David added, “there’s a huge reservoir of goodwill which needs to be tapped into, and that’s largely achieved through partnership”.

Further, the Afghanistan crisis brings with it various cultural and language barriers. There is an obvious requirement for precision when preparing legal documentation on behalf of others and, as a result, accurate translation is vital. RACS’ Centre Director and Principal Solicitor Sarah Dale noted RACS’ heavy reliance on interpreters and the extensive costs associated with that exercise.

“What is always going to be a difficulty in this space is converting a human issue into a legal solution. It’s like fitting a square peg in a round hole. Human stories, human families and human experience don’t always translate nicely into forms and boxes that are required for this process, so that requires a particular level of skill to navigate.”

– Sarah Dale, RACS

The image of family varies widely from country to country and, as a result, it can be  challenging for some lawyers to understand what societal constructions such as family and community look like in Afghanistan. “People need to bring a real level of dropping their own personal bias about what family and community looks like because we’re existing in very different cultures and communities,” said Sarah.

When delivering legal services, and particularly in times of crisis, it is crucial that the legal profession’s response is led by those directly affected.^[3]

At RACS, this belief is a key pillar of their model and is achieved by working with Ambassadors such as Zaki Haidari, who arrived in Australia as a refugee from Afghanistan, and by collaborating with the Australian Advocacy Network and Dhana (both of which are led and coordinated by people from Afghanistan who have been refugees themselves). Through these connections, RACS has fostered a relationship of trust with the Afghan community and, in turn, it has become easy to ensure that RACS is guided by the voices of those affected.

PILnet has made it a priority over the past year to ensure that refugees and those affected by displacement are part of the Global Refugee Forum Legal Community Pledge, and PILnet is “working with them to identify their needs and … to co-design the solution,” reported Jasmine. When the Taliban took control of Afghanistan, PILnet did not act independently, but rather, took its cues from an Afghan member of a refugee-led organisation based in Australia who requested to jointly mobilise the global legal community in response to the situation and suggested an urgent consultation.

Refugee Legal has a deep and longstanding relationship with the Afghan Australian community. By working closely with individuals in the community through direct legal work, Refugee Legal says they are constantly guided by the needs of those affected. “We also work very closely with other sector partners on issues and priorities in terms of health, material support and psychological support,” said David. By doing so, Refugee Legal takes an integrated approach on a range of different and often complex needs so that their services cater for the nuance of their clients’ experiences. “At the heart of it, in all of what we do, we continue to ensure that the voices of Afghans are central,” said David.

However, the importance of centring the voices of the Afghan community must be balanced with the desire for anonymity which many Afghans feel. Evacuating or immigrating from Afghanistan can be highly dangerous, and in some instances, is a matter of life or death. As a result, the safety and security of those affected is paramount and is achieved, in part, by remaining unindentified.

The most important skill that legal practitioners can have in responding to this crisis is an understanding of the complexity and nuance of immigration law in Australia and overseas. “Having an awareness of Australia’s refugee policies and how we assess people needing protection is critical,” said Sarah Dale. However, David Manne notes that as well as transforming well-honed generalist legal skills to specialist ones, ultimately, a passion for justice needs to underpin a pro bono lawyer’s response.

In addition to practical and technical skills, Sarah Dale noted the importance of acknowledging the vicarious trauma that occurs in this space, and the value of debriefing and self-care.^[4] “People come to work at RACS because they care very deeply about the people they help, but it also lends to people who care too much and are more susceptible to vicarious trauma and burnout,” she said. Refugee Legal’s David Manne agreed, noting that “the deep trauma which is felt by Afghans trapped in danger has deep reverberations in Australia through the Afghan Australian community and more broadly for people rendering assistance”. Jasmine Simperingham acknowledged the risk of vicarious trauma but urged pro bono lawyers not to be discouraged. “I wouldn’t want to put off people from coming forward because, if they’re interested in getting involved, there’s so many needs and, as a result, the work is incredibly varied,” said Jasmine.

The combined response of pro bono lawyers, law firms, barristers, CLCs and NGOs in response to the Afghanistan crisis has been extraordinary. Although the efforts of these actors have made a tremendous impact on the lives of countless Afghans affected by the crisis, the needs of these communities persist.

Individual lawyers, practical legal trainees and law students can volunteer with RACS, or can contact another CLC in their local area that works on immigration law matters to ask if they have capacity to take on additional volunteers.^[5] However, Sarah Dale encouraged those who are interested to firstly check whether there are opportunities to assist within their own firms. “There are a number of firms that have joined RACS for the first time in response to this crisis and those firms have shown leadership, care deeply about the issue and want to engage, and have brought their firm along for the journey,” said Sarah. 

David Manne observed that “unlike many people who watch the horrors unfold and wonder what they can do to help, the reality is that lawyers are in a special place in that they can do something direct and concrete to help.”

[1] Afghanistan Legal Clinic Responds to Crisis (2021) 95(10) Law Institute Journal 68, 68.

[2] The Global Refugee Forum Legal Community Pledge is a pledge made by over 100 legal and refugee rights actors who have collectively pledged to work together to support the legal needs of refugees. You can find more information about the Pledge and how you can join here.

[3] For more on this topic, see this article by Nicolas Patrick (Partner, DLA Piper) about diversity in pro bono roles.

[4] For more on this topic, see the Centre’s resource Client Management & Self-Care: A Guide for Pro Bono Lawyers, available here.

[5] See here for a list of major CLCs across Australia, including a list of CLCs that work with asylum seekers, refugees, and migrants.