Freedom a mirage for some detainees

4 Apr 2005

Amanda Vanstone’s new visa is a very small step forward, according to William Maley

THE ANNOUNCEMENT by the immigration minister, Amanda Vanstone, that the government will introduce new regulations to establish a Removal Pending Bridging Visa has been welcomed as a first step, albeit a small one, away from the rigid regime of mandatory, non-reviewable detention of asylum seekers who arrive without visas.

In practice, however, the step may prove to be very small indeed. When one examines the details of the proposal, it is clear that significant obstacles will still need to be overcome before many detainees can enjoy a taste of freedom.

One provision is of particular concern, namely the limitation of eligibility to those detainees who in the belief of the minister ‘have done everything possible to facilitate their removal from Australia’. This formulation is ostensibly straightforward, but it masks a host of troubling complexities which arise when a detainee’s nationality is contested. For in a number of cases, often on the most flimsy of grounds, applicants have been denied refugee status on the basis that they were not citizens of the country from which they claimed to have fled.

To see how this conundrum can arise, it is useful to examine a specific case, that of Applicant ‘M’. Mr M, a young man of about 19, arrived in Australia in early 2000, claiming to be a citizen of Afghanistan. He applied for a protection visa. The application was refused, and was then reviewed by the Refugee Review Tribunal, which affirmed the department’s decision. The tribunal accepted that Mr M was a member of the Hazara ethnic group (which has long been a victimised minority in Afghanistan), but that was as far as it would go: ‘On the basis of the applicant’s lack of familiarity with the part of Afghanistan from which he claims to have come, his lack of knowledge of recent events in Afghan history and his inability to nominate significant national days or to fix any date within the Afghan calendar, the tribunal finds that the applicant is not from Afghanistan and has not lived there all his life until he came to Australia’.

Superficially this might have seemed a plausible conclusion, but on closer scrutiny it was extremely shaky. Residents of remote districts in war-torn countries often have only the haziest knowledge of what is going on elsewhere, and may be discouraged from travelling by the threat of banditry on the roads. In the region of Afghanistan from which Mr M claimed to come, there were at least three calendars which people might use (the Arabic lunar calendar, the Hisab-e burj based on the signs of the zodiac, and the traditional Hazara animal calendar), and no reasons to think that what the tribunal called ‘the Afghan calendar’ was the prevalent one in Mr M’s district.

Most seriously of all, the tribunal drew adverse conclusions from the fact that when asked about the situation in Afghanistan after the withdrawal of Soviet troops, Mr M denied that he had been born at that time. Almost as if it were playing a trump card, the Tribunal set out evidence that the Soviet forces had withdrawn in 1989 when he was eight or nine years old.

It somehow escaped the Tribunal’s attention that it was in 1982, around the time of Mr M’s birth, that Soviet troops had withdrawn from the region from which Mr M claimed to come. These flaws in the tribunal’s reasoning did not, of course, establish that Mr M was an Afghan, but they severely weakened the case for suspecting that he was not.

What good would a Removal Pending Bridging Visa have done Mr M? If someone in his position stuck to his guns and maintained that he was an Afghan, his rejection of the tribunal’s shaky conclusions could be treated as evidence that he had not ‘done everything possible’ to facilitate his removal from Australia.

The lesson here is relatively clear: the decision as to whether or not to release long-term detainees should not be in the hands of the government, which could have an interest in blaming refugees for mistakes which may have led to their prolonged detention, but rather in the hands of an independent actor such as the Federal Magistrates Court.

And what of Mr M? Here the story as I heard it became even more interesting. Rejected by the tribunal, he sought judicial review in the Federal Court, but failed because he could not prove that the tribunal had made an ‘error of law’ in the technical sense. He requested that the then minister, Philip Ruddock, exercise his discretion to grant a humanitarian visa, but the minister would not shift an inch.

Finally, when all else failed, he turned to the new Embassy of Afghanistan, established only after Mr M had made his fruitless journey through the tribunal and the courts. After making its own inquiries, it discovered he really was an Afghan, and its conclusion to that effect forced the Australian government’s hand. Mr M is now a recognised refugee with a Temporary Protection Visa. But the delay caused by the mistakes over his identity not only cost Mr M years of his life, but also the opportunity ever to receive a permanent visa. It’s no fun being a refugee.

William Maley is director of the Asia-Pacific College of Diplomacy at the Australian National University. This article first appeared in the Canberra Times.

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