A tale of two unsuccessful asylum seekers


Fawad Ahmed bowlingThe asylum seeker debate in Australia is dominated by simplistic slogans and rhetoric. Within this context it is illuminating to compare the cases of two unsuccessful asylum seekers, which illustrate the complexities of the issue, and how three-word slogans do not reflect the realities of refugee movements around the world.

One is the recruit to the Australia A cricket team, Pakistani born Fawad Ahmed. The other is, in Tony Abbott's words, the 'convicted Jihadist terrorist', Egyptian born Sayed Ahmed Abullatif.

On paper, Ahmed's case has prima facie merits, as there are reports of attacks by militant groups on those they believe are not proper Muslims. In his case, his sporting endeavours put him at risk.

It seems a review lodged to the Refugee Review Tribunal (RRT) was unsuccessful, leaving Ahmed with only one immigration option: a request to the Minister to exercise his ministerial discretion in his favour. Luckily for the 'failed asylum seeker' Ahmed, the Minister did intervene, granting him a permanent visa; not, it seems, due to his fear of human rights breaches in Pakistan, but due to Australia's desperate need for a good leg-spinner.

Even better luck for Ahmed was the recent change to the Citizenship Act that made it possible for him to become an Australian citizen without meeting the normal four-year lawful residency requirement including at least one year as a permanent resident. The urgency for him is the Ashes Tour to England, about to start very soon.

On the other hand we had the recent spat about the level of detention security for Abdullatif. This followed reports that Abdullatif was on an Interpol Red Notice. Senator Nash stated that Abdullatif was wanted in Egypt for terrorist offences and membership of Egyptian Jihad, an organisation alleged to be linked to Al Qaida.

It seems that the Department of Immigration and Citizenship was only later advised about these possible character issues, and then moved Abdullatif from low security in Inverbrackie to higher security in Villawood. Some concern was raised about the 'pool fence' security at Inverbrackie for an alleged 'Jihadist Terrorist'.

So far, it is not clear whether Abdulllatif's application has been decided or not. Either way, accusations of serious character issues are dealt with in the protection visa process. In Australia there are three separate ways of dealing with protection visa cases raising security or character concerns.

Firstly, the Refugee Convention has a mechanism under article 1F for excluding protection for those who have committed serious non-political crimes. Also, the Migration Act has a character test in section 501 which can be used to refuse a case of character concern. Finally, there is a requirement of meeting ASIO checks.

We have a process for assessing refugee claims, and there are several checks in it to flag cases of security concern, as has occurred with a number of Sri Lankan cases with adverse security findings. At least one security assessment was overturned by the new security review process. This is significant because a process of review makes the decision makers more careful, and less likely to rush a decision.

Now it seems there are serious questions about the 'conviction' in Egypt: it was in absentia, by a former regime which had serious problems with a fair judicial system. It is likely that such a conviction in absentia may be highly relevant to a refugee claim. Oppressive regimes are known for using the legal system to effect their persecution.

As more facts emerge, more complexity is seen. This is not a surprise for those working with asylum seekers. Refugee cases can be straightforward, but they are generally complex and cannot be lightly dismissed.

Attempts to short circuit a complex process leads to the risk of serious mistakes. Currently there is a fast screening process to check if those arriving by boat can be quickly assessed without the benefit of legal advice. Yet sometimes it can take extensive questioning to clearly identify whether a case fits the refugee criteria.

Making quick decisions only raises the likelihood of someone being sent back who has a well-founded fear of persecution. In refugee cases, sending someone back to persecution is the most serious mistake that can be made.

I hope Ahmed takes bags of wickets in the Ashes. He will be the second Pakistani born cricketer in the Australian side, and good luck to him. Other asylum seekers whose cases are unsuccessful are not so lucky. Abdullatif has possibly a more difficult road ahead. 

Kerry Murphy headshotKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU and was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers.

This week is Refugee Week.

Topic tags: Kerry Murphy, asylum seekers, Fawad Ahmed, Sayed Ahmed Abullatif, Citizenship Act



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Existing comments

Interpol has withdrawn the red notice. It would appear the man was never convicted of any of the offenses the AFP alleged. Never mind the dubiousness of a conviction under the disgraced Mubarak dictatorship
Victoria | 18 June 2013

For the writer J M Coetzee cricket was the sport he was most interested in. This is an excerpt from "Boyhood": Cricket is not a game. It is the truth of life. If it is, as the books say, a test of character, then it is a test he sees no way of passing yet does not know how to dodge. At the wicket the secret that he manages to cover up elsewhere is relentlessly probed and exposed. 'Let us see what you are made of,' says the ball as it whistles and tumbles through the air toward him. Blindly, confusedly, he pushes the bat forward, too soon or too late. Past the bat, past the pads the ball finds its way. He is bowled, he has failed the test, he has been found out, there is nothing to do but hide his tears, cover his face, trudge back to the commiserating, politely-schooled applause of the other boys.
Pam | 18 June 2013

Given that Pakistan is as cricket mad as Australia (at least) it certainly stretches the imagination that someone would be in danger there merely because they were involved with it. Imran Khan was never in any danger. Neither, as far as I am aware has any other international cricketer. Was there more to Ahmed's story? Is it in the public arena? Was this a wise and equitable decision or was it rushed through because of sporting pressure, Cricket Australia having a few influential people aboard? If the latter I would have some concern. Regarding Abdullatif; the former Egyptian regime and the evidence against him; its provenance etc. we enter a rather murky world. Intelligence gathering is necessarily a rather shadowy and often morally compromised sphere. A simple test, in his case, would seem to be would the current regime in Egypt accept him back without commencing any prosecution? Given it is an Islamicist regime, if he is now considered innocent it would seem the previous regime was biased. If not, I would be concerned.
Edward F | 18 June 2013

Yes and Ranjini is a refugee who is jailed for life with her kids.
Marilyn | 18 June 2013

Very impressed by article by Kerry Murphy. I continue to be distressed by the injustice handed out to asylum seekers. The attitude of both major political parties to these needy people brings shame on the Australian name.
Patricia Kennedy | 19 June 2013

The only thing we know with certainty is that the sporting industry in Australia is powerful money making machine. The sporting industry is swallowing up Billions which could be used for the better infrastructure, training, schooling and medical services. The association of the sporting industry with all levels of the media and politics makes it easy for Governments to hand out hundreds of millions of dollars to “sporting heroes” and financing billion of dollars worth of sporting facilities. At the same time, nearby hospitals have not enough beds for seriously ill people. If a migrant is a skilled cricket player, he has more of a change to enter Australia then a brain surgeon.
Beat Odermatt | 19 June 2013


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