Last week my friend, Mohammed, was deported from Australia and I feel sick. I believe he was deported to danger. I believe that he believes he has been deported to danger.
An ethnic Hazara man, who has been living in Pakistan since he was a child, he has good reason to believe this. He has been on the run from the Taliban his whole life. When he heard the news that he was to be removed — how clean and surgical it sounds, like getting rid of wart, an unwanted growth — he broke down. I hugged him but it could not assuage the fear and despair that was overwhelming him.
Why are we doing this? Such a rich country and we haven’t got room in our heart or home for a few truly desperate human beings. How can someone like Mohammed be deported from Australia to danger in 2011, after all the ghastly experiences we have heard about over the past 10 years, and in spite of the Refugee Convention stating that no one can be deported to danger, and the day after a Complementary Protection Bill was apparently passed through the Australian Parliament?
It was intense: moving heaven and earth to put out a fire only to find that when the fireman arrives he says, "I don’t have a licence to put out that kind of fire. I can only put out other sorts of fires".
In May this year Mohammed’s 12-year-old son was shot and injured in an attack by the Taliban while praying at his grandmother’s grave. This is not just a statistic on the news. The father is standing in front of me holding a photo of his son in the news. In his other hand he is holding a passport photo of the same boy. Do I have to fly to Pakistan to do a DNA test, he asks. The attack was specifically anti-Hazara.
Hazaras are an ethnic minority from Afghanistan who are singled out by the Taliban because they are Shiite Muslims but also for complex historical reasons.
In August Mohammed’s mother’s cousin was among a number of Hazaras in his area killed by the Taliban. An open letter to the Hazara community in Quetta from terror group Lashkar-e-Jhangvi declares, "Shias have no right to be here … have been declared infidels. Just as our fighters have waged successful jihad against the Shia-Hazaras in Afghanistan, our mission (in Pakistan) is the abolition of this impure sect and people, the Shias and the Shia-Hazaras, from every city, every village, every nook and corner of Pakistan … we will make Pakistan their graveyard — their houses will be destroyed by bombs and suicide bombers…"
Mohammed has been in Australia more than once since 1999. His case has been through the Independent Merits Review and the Federal Court but it has foundered on the fact that he had at one time used a Pakistani passport and a different name in an attempt to escape to safety. Yes, in Australia, we don’t like people with false names who tell fibs about their identity — but we fail to understand that such behaviour is brought about by desperate situations, and that this behaviour does not necessarily need to discredit the person who has had to do it.
Against considerable evidence to the contrary, the Tribunal chose to believe that Mohammed is Pakistani, even though he looks like a Hazara, identifies as Hazara and speaks Dari. This is what counts against him in that part of the world, not whether he once carried a false Pakistani passport in an effort to keep safe.
The Tribunal also chose not to believe his story of persecution. Mohammed told them he feared for his life because a local pro-Taliban man was trying to track him down and kill him. This man did not succeed in killing him. The Tribunal asserted that the man could have easily come to Mohammed’s shop and killed him but because he had not Mohammed was not in danger — and was therefore not a refugee and therefore did not deserve Australia’s protection. This seems like a variation on the arguments of the witch hunts. Is the only way to prove you are a real refugee to die being one?
Mohammed is trapped in a system that is unable and unwilling to respond to the real situation but is prepared to accept that justice appears to have been done, at great expense to the taxpayer, and leave it at that. Do many Australians understand this process? I ask any lay readers, is this your understanding of the law?
1. You can not be held without charge.
2. You are innocent until proven guilty.
Here is what I am learning about refugee law. Please correct me if I am wrong. It appears that there is no possibility to scrutinise the facts once they are established or found to be true in the Tribunal — unless there is a second Tribunal because the Federal Court finds there was an error of law (not fact) in the first Tribunal.
In the Tribunal it seems that the onus of proof is reversed and is upon the refugee applicant to prove beyond all reasonable doubt that they have a well founded fear of persecution. This is the opposite of what normally happens, when the onus of proof is on the Crown. It seems to me that if any tiny doubt can be asserted by the reviewer it will be latched onto as a reason to fail the case.
I have noticed that the findings often involve assumptions on the part of the reviewer such as the one made about Mohammed when the man did not manage to kill him. I have seen this in another case where the refugee applicant could not remember how many times he was being hit on the head, while his nose was broken and his relative was being arrested. The reviewer concluded that as he could not remember this, his whole story was a lie.
If the applicant takes the matter to the Federal Court only matters of legal process can be reviewed. If no mistake in legal process is found by the Federal Court nothing can be done to challenge the findings of the reviewer. Further, if new evidence comes to light regarding a well founded fear of persecution, it seems that there is no way to raise this in the legal system the way it is set up.
In these cases the applicant mostly has limited English and even when a translator is used certain nuances can be lost in translation. I am well aware of this as an English teacher of 40 years and as a person who can speak another language. I also understand that court translators do not have training in Australian law and can have limited scope and depth in their understanding of what they are explaining. I have also been told that some translators say certain things in order to keep their job.
There is also a cultural dimension to this process. The Tribunal has "in country" information. From what sources is it gained? Do they and can they walk in the shoes of the persecuted person? How close is the information that is used to the lives of the slum dogs who are living their lives down in the bustees? How up to date is it?
I ask all fair-minded Australians: do you consider the Refugee Review System a fair system?
Mohammed was not allowed to attend his court hearing. The problem of getting guards at short notice was apparently what prevented this. During the court hearing the DIAC lawyer implied that Mohammed was a dangerous case who needed five armed guards to "remove" him. (There was no trouble getting those guards.) This statement went unchallenged. I consider the remark a slur of the kind made by bullies.
I wondered whether the DIAC lawyer had in fact ever met Mohammed. Mohammed is a shortish man of slight build and stooped posture beyond his age. He has weak eyesight with two pairs of glasses that he has to keep changing. He looks incredibly scared and vulnerable. His love and affection for his family is evident as well as his distress for them.
In the fraught situation of his top security prison, he was very polite. Even though he was broken and sobbing, he didn’t forget the cups of tea for us. I could tell from the demeanour of the guards that they held him in respect and saw that he was a kind man. He is also a skilled carpenter, a skill needed by Australia. We don’t have to recruit him from the South Pacific or Britain. He’s right here now.
I returned home devastated. The next day, as I left my house, there were road works on the way. I was greeted by a cheery gang of Irish road workers. I don’t have any problem with them but it does look like the White Australia Policy is still alive and well in 2011.
Is this is the kind of action that makes our PM, indeed politicians of both parties, proud? Because this is what being tough on boatpeople boils down to and it makes me sick.
Names have been changed in this article.
BACKGROUND: Mohammed’s claim for protection was subject to an Independent Merits Review in March this year. Reviewer Michael Griffin had this to say about his case:
"It is beyond doubt that there is widespread sectarian violence in Pakistan. It is apparent that many minority groups in Pakistan, including Hazara Shia, experience discrimination and that high profile individuals may be directly targeted by various groups with serious consequences. However, there is no reliable evidence that the claimant is of particular adverse interest to the Pakistani authorities, or to any of the groups perpetrating violence in the country. On his own evidence nothing in particular had ever happened to him…"
"I accept that some, possibly most, Hazara Shia (and other minority groups) experience discrimination and hardship in many forms in Pakistan. However, negative discrimination and and even exposure to random generalised violence perpetrated by terrorist groups such as Lashkar-e-Janghavi, does not necessarily amount to persecution for a Convention reason."
Since that hearing, Mohammed claims that a number of his relatives were victims of injury or death in the attacks outlined in Hadi Zaher’s piece for New Matilda today on the increasingly violent situation facing Hazaras in Pakistan.
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