Transitions
2001 was the 50th anniversary of the United Nations Refugee Convention. Australian lawyer Martin Clutterbuck recalls the people, from many countries, whose lives have crossed his own in the course of refugee work.
Girl on the beach near Suai, East Timor. The United Nations uses part of this beach for recreation. Photograph by Michael Coyne, part of a photographic essay in this month's Eureka Street.
A year ago I was accompanying six asylum seekers from Burma to an interview with the Department of Immigration. They were farmers from an ethnic minority high in the mountains of Burma and had arrived in Australia on visitor's visas. They had all been the victims of forced labour for the Burmese regime and they had no real experience of the modern world. When they approached the revolving doors in the Department of Immigration building they watched open-mouthed as people smoothly passed through. Then, after observing for a minute, they made a rush towards the doors - all six of them. There was much hilarity as they attempted to disentangle arms and legs. A bemused security official came to help them out.
Lawyers and other workers in this jurisdiction play a similar role when they assist asylum seekers with the complex refugee determination process on their arrival. Asylum seekers often come to a jarring halt when confronted with an unfamiliar world. They are propelled through the system to its often Kafkaesque conclusion. The cases of individual asylum seekers often illustrate the point.
Ali Hassan was an unsuccessful Somali asylum seeker who had sustained head injuries from a bomb explosion in the Somali capital, Mogadishu, during the civil war. His refugee application was refused not because he did not have a fear of persecution in Somalia, but because decision-makers claimed there was insufficient evidence to prove that Ali was in fact a Somali. He was now about to be deported from Australia, but to where? It was apparent to anyone who had anything to do with Ali that he was very much a Somali. As immigration officials scratched their heads they agreed that it would be appropriate to return Ali to Somalia. They then set about the task of obtaining a Somali travel document for Ali - the type of documentation that he had himself been unable to obtain to prove his case. Within hours of his deportation from Australia, the High Court intervened to prevent Ali's removal. He was allowed to reapply for refugee status and was found to be a refugee from Somalia second time around. Ali is an example of the type of refugee most in need of Australia's help despite having arrived in an 'unauthorised manner'. With a serious mental disability, Ali would have been among the most vulnerable in war-torn Somalia.
Before starting refugee work I had questioned whether asylum seekers really needed legal representation. Surely they could tell their stories directly to an immigration official through an interpreter without the need for external assistance? Working in detention centres soon disabused me of this notion. Being in a detention environment is a particularly disenfranchising and dehumanising experience. In July 2001 I was asked to assist an elderly Afghan asylum seeker in one of the remote detention centres. On seeing me, my client became overwhelmed with emotion. He pumped my hand vigorously and could barely stammer out his name. I looked at his identity card and saw a younger-looking man with brown hair. He smiled wanly and told me that he had been in detention for over five months without being able to see a lawyer, despite having made it clear that he wished to apply for refugee status. He said, apologetically, that he had become extremely distressed. His hair had turned completely white.
In many cases, the challenge is to try and free someone from the sticky bureaucratic web they have become enveloped in. Mr Ahmadi was a stateless refugee from Kuwait who had left behind a wife and six children as he tried to make a future for them. He arrived in Australia without authorisation and was detained.
During the refugee application process, Mr Ahmadi's then advisers inexplicably contacted Kuwaiti authorities with his personal details. Kuwaiti authorities wrote back confirming that they had indeed deported Mr Ahmadi from Kuwait. They then made the wild assertion that Mr Ahmadi was an 'Iraqi spy'. Such behaviour might be expected from a persecutory regime, but one would not expect Australian authorities to accept such allegations at face value. Yet this is precisely what happened. Australian intelligence authorities refused Mr Ahmadi's application on the grounds that there were reasons to believe he was a national security risk.
As we wound our way through the long and arduous process of refuting the allegations, Mr Ahmadi sighed with exasperation, 'If I were an Iraqi spy, why would Australian authorities leave me in detention where I have contact with all the Iraqi asylum seekers?' I shrugged my shoulders and tried to explain that regimes such as the one Mr Ahmadi had left behind do not have a monopoly on irrational behaviour. Finally, after Mr Ahmadi had been in detention for 18 months, intelligence authorities admitted that they had made a mistake. He was offered a compensation payout and now lives in country Victoria with his wife and six children.
The act of detaining people has in itself become a growth industry under the present government. I recall speaking last year to some Afghan clients about conditions in detention. 'We have no complaints. We are fed, we are given blankets, we do not have to sleep on the floor and we are not beaten by the guards,' they said. They were comparing their detention experiences with their time in a Taliban jail in Kandahar in Afghanistan.
To my mind there is no question that our practice of immigration detention is a dark chapter that will become as unthinkable to future generations as the act of arbitrarily interring in Australia all persons of German or Japanese origin during World War II.
There have been many obstacles placed in the way of asylum seekers over the last five years. One of the most serious restrictions occurred early in the term of the Howard government when it moved to limit access to work rights and financial support. I currently act for an asylum seeker from Sierra Leone, Samuel, who has been in Australia for over three years without work rights or any form of financial assistance. Somehow, he has managed to survive, mainly on hand-outs. As I contemplate the compatibility of Australia's domestic law with the International Covenant on Civil and Political Rights, my client states resolutely that he must not work in Australia because he comes from a country that has no law and he knows what can happen. Samuel was at home when his mother had her arm amputated by rebel soldiers in an act of pointless violence, so he speaks with some passion about the rule of law. Over the last three years, he has rebuilt his life. His nightmares have subsided and he has married in Australia. Despite this, his application to remain in Australia first as a refugee and then later on account of his marriage, has failed. As I explain the situation to Samuel and his wife Joanne, I can see Samuel staring back into the abyss.
'Pacific solutions' and 'border protection' legislation usher in a brave new world for refugees in Australia. Those who have beaten the clock can count themselves lucky. Yusuf Farah languished in the Maribyrnong Detention Centre for over 18 months before being accepted as a refugee. A Somali poet, Yusuf spent much of his time in detention writing articles critiquing the political situation in Somalia and the power-plays of Somali warlords. Over this period he became the main feature-writer for the pre-eminent Somali newspaper in London, Kasmo. When interested readers asked how they could contact Yusuf to comment on his articles, the editor had to advise them that he was living in an immigration jail somewhere in Australia.
Yusuf was accepted as a refugee only after an important full Federal Court decision concerning his right to freedom of speech for his writings. As we chat over coffee in Fitzroy, Yusuf is aware of the irony that despite having been in detention for over 18 months, he is fortunate to have had his case decided prior to the new changes in law which would have torpedoed his claims. He knows he would otherwise be dodging bullets in Mogadishu. The eternal optimist, Yusuf beams from ear to ear, 'I feel just like a new child.'
For me, the last five years have been filled not with 'queue-jumpers' and 'illegals' but with a glimpse of the rich tapestry of the world. Kurdish journalists, Iraqi doctors, Burmese students, Somali poets and Afghan farmers. Stories of pathos, good humour in the face of adversity and people who are unstintingly grateful for the second chance Australia has given them.
Martin Clutterbuck was co-ordinator of the Refugee and Immigration Legal Centre in Melbourne. He is currently in the East Timorese territory of Ocussi.
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