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Selective evidence

  • 14 May 2006

The saga of the Bakhtiyari family has highlighted many misconceptions about the way Australia’s refugee intake and screening system works. These misconceptions are played upon by politicians of both stripes, and are not put to rest by journalists. A story by Russell Skelton in The Age of 26 December 2004 (reprinted in the Independent Weekly in Adelaide) seriously questioned the family’s claim to be Afghans.

I had some limited dealings (as a court advocate) with the claims for refugee status by the father, Ali Bakhtiyari, as well as the claim by the children to be released from detention, and question the vehemence of the political statements and the soundness of Russell Skelton’s insinuations against the family’s interest.

The father, Ali, and mother, Roqia (and the then five children), arrived in Australia independently of one another, resulting in twin streams of inquiry and appeal into their case. Ali arrived in October 1999 and, on the basis of his written claim, was granted a Temporary Protection Visa in August 2000. However, Roqia arrived in January 2001, unaware of Ali’s presence in the country, and applied for refugee status.

In February 2001, Roqia was interviewed by a delegate of the Minister for Immigration. In early May the Government obtained a linguistic analysis which asserted that Roqia’s accent reflected that of Quetta, in Pakistan, while she used Iranian words and had some Iranian pronunciations. I did not act for Roqia, and have no knowledge of the linguistic analysis other than that provided by the Refugee Review Tribunal following the delegate’s decision, but Iran and Pakistan are on opposite sides of Afghanistan. It seems not implausible that Roqia’s language reflected the impact on the central country of the neighbours on either side, rather than that Roqia must have come from Quetta.

In May 2001 the Minister’s delegate refused Roqia and the children a refugee visa on the grounds that while it was not clear which country they were from, it was not Afghanistan. Roqia, through her lawyers, appealed to the Refugee Review Tribunal. The tribunal is set up under the Migration Act as the last line of appeal for finding the facts about a refugee claim.

Politicians (most often Philip Ruddock, but more lately Amanda Vanstone) like to talk glibly about how refugee claimants have access to a long line of appeal procedures, but they do not explain that in such court appeals, the facts of the claim are