GLW: A Detention System Out Of Control

Let’s hope we can look back on 2005 as the beginning of the end of mandatory detention. The need for a renewed campaign to abolish it was fuelled by the breathtaking revelation on April 30 that Australian authorities deported an Australian citizen in 2001.

It was only when a family member contacted the immigration department (DIMIA) in early April in response to publicity about mentally ill Australian resident Cornelia Rau’s detention, wondering if the same thing might have happened to Vivian Alvarez, that the government realised its mistake — four years later!

These two cases are the tip of a potentially enormous iceberg. There were attempts to dismiss Rau’s mistaken detention as an isolated incident, but the “accidental” deportation of Alvarez, an Australian-Filipino citizen, whose whereabouts is still unknown, points to a far more disturbing pattern. Alvarez’s marriage in Australia had reportedly broken down, and she had a serious mental disorder. DIMIA is currently trying to locate her in the Philippines.

ABC’s Lateline reported on May 4 that it had “been told of a range of examples where people, often mentally ill and with poor English, have been detained for weeks and months, and there could also be other instances of women wrongly deported after failed marriages”.

Around one in four Australians were born overseas and around one in 10 have a mental illness. These two characteristics, which Rau and the unnamed woman have in common, are shared by many Australians. No doubt many people have been left thinking, “That could have been me”.

The government has known for at least three months that a much bigger issue lies beneath these two public cases. On February 17, Democrats Senator Andrew Bartlett was presented with answers to questions he’d asked in a Senate Estimates Committee. They included DIMIA’s admission that between July 2003 and February 2004, 33 people were wrongly held in immigration detention.

Immigration minister Amanda Vanstone ordered an audit of all detention cases from July 2002 to February this year after discovering this. But the government nevertheless sat on the information until the deportation scandal became public. By May 5, the media was talking of at least 100 cases of wrongful detention that had been identified for investigation.

Assessing refugees

If DIMIA can’t even establish whether or not people are legal permanent residents or citizens of Australia, then how many asylum seekers have been incorrectly assessed, rejected and deported? This is a far more serious issue because people’s lives are at stake.

If Australian citizens can be “accidentally” detained and deported, how many asylum seekers who genuinely feared for their lives were “accidentally” sent back to situations of extreme danger?

There are three asylum seekers who we know were deported to death:

Colombian asylum seeker Alvaro Moralez was deported from Australia in May 2002 and killed by paramilitary gangs three weeks later.

Pakistani teenager Ahad Bilal was deported in June 2003 after the Refugee Review Tribunal rejected him as a liar, and was murdered two months later by the drug gangs he had sought protection from.

Afghan asylum seeker Mohammed Mussa Nazari was detained on Nauru, and eventually succumbed to pressure to return to Afghanistan — one of the government’s so-called voluntary deportations. He was murdered by the Taliban in August 2003.

There are no doubt many more whose deaths we don’t know about. Others have simply disappeared.

The Edmund Rice Centre (ERC) conducted an extensive study and interviews with dozens of asylum seekers who were deported from Australia. Researchers found that many were returned to situations of extreme danger. Some were imprisoned and some sought asylum a second time and then gained protection in a third country.

The ERC also gathered a mountain of evidence proving that the Australian government provided false travel documents and money to bribe immigration officials in transit countries, and that it encouraged the use of false passports, in order to get asylum seekers out of Australia and into another country.

This gives weight to the suspicion that the Australian citizen deported to the Philippines four years ago may have been sent there on false documents.

Review of detention

“When a nation starts deporting its own citizens, something has gone seriously wrong with the system”, declared the May 3 editorial in the Melbourne Age. There has been something seriously wrong with the system ever since mandatory, non-reviewable detention was introduced in 1992. But each new revelation of wrongful detention and deportation further exposes the extent to which DIMIA’s unchecked powers have led to the most horrifying abuse of basic human rights.

When Labor introduced mandatory detention in 1992, it did so in order to have complete administrative control over who it kept in detention, denying the courts any power to order a detainee’s release. A central plank of mandatory detention is the removal of any accountability mechanism — any requirement to have a decision tested in a court of law — before deciding to detain or to deport someone.

Project SafeCom’s Jack Smit pointed out on May 1 that DIMIA’s powers far exceed those of ASIO and the police. “If you’re a murder suspect, even a serial killer suspect, the police can only hold you for 24 hours, and ASIO can hold suspected terrorists for seven days.

“Yet only on the suspicion of ‘illegality’ by someone who may well be a junior bureaucrat and new to the job, you can be grabbed, locked away in immigration detention, and as we now find out, deported, even if you are an Australian citizen or resident, and at no time in this chain of horror events DIMIA needs to be held accountable before a judge or a magistrate.”

The Palmer Inquiry, set up with deliberately narrow terms of reference to investigate Rau’s detention, has had those terms of reference broadened in order to investigate all instances of wrongful detention so far uncovered. But this is simply an attempt to bury a potentially monumental scandal within the safe confines of a private — and therefore secret — inquiry. In addition to its findings remaining secret, the inquiry’s powers are woefully limited. It can’t offer immunity to, or protection of, witnesses who agree to testify. It cannot force unwilling witnesses to appear and give evidence.

In its May 5 editorial, the Sydney Morning Herald strongly criticised this inquiry: “The fact it is not open makes it appear more like media management than a means to uncover the truth. Arguments about the privacy of the individuals involved justifying this cloak of secrecy are overwhelmed by the argument of public interest: the public must be confident the immigration system treats people openly and fairly. If the system is deporting Australian citizens, how can anyone be confident of its decisions in the case of refugees and asylum seekers? We have said from the time the Rau case came to public knowledge that a full, open inquiry was needed. The latest revelations have made it essential.”

Refugee advocates and campaign groups, former PM Malcolm Fraser and Human Rights Commissioner Sev Ozdowski have called for a full judicial inquiry or royal commission. Rau’s sister Christine Rau has also stated her support for a full judicial inquiry and the Labor Party has joined the call.

The starting point of such a royal commission would be to investigate the wrongful detention and deportation of residents, citizens and visitors lawfully in Australia and how and why such mistakes were made. But a royal commission should also investigate:

deported asylum seekers and their fate after deportation;

the process of assessing refugee claims — the level of bias, and the effects of preventing due access by lawyers, media agents and the public in order to assess, assist, support and report;

the use of detention as punishment and the systematic mistreatment of asylum seekers and immigration detainees;

the cause of deaths in detention — according to refugee advocate Pamela Curr, there have been 13 since December 2000.

A royal commission should also explore alternatives to mandatory detention and options for restructuring or abolishing DIMIA. A department that has the role of resettling refugees, deporting asylum seekers, rounding up immigrants without valid visas and overseeing policy for Indigenous Australians is a joke. It is an insult to Indigenous people that what used to be a separate department is now tacked onto a department dealing with a completely different policy area.

A royal commission gives us the opportunity to expose to the whole population the horrors and injustices of mandatory detention. It will be the strength and activity of the refugee-rights movement that will determine whether such a royal commission leads to the abolition of this policy, but such a public inquiry can help us to swell the ranks of that movement.

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