Marion Lê OAM testifies
An experienced advocate at a Senate Inquiry into the Migration Act
"My conclusion, after the last 30 years of working with, for and against the department, is that in the last few years it has developed a culture of denial, suspicion and active destruction of human beings."
"When I was reading through the transcripts of the South Australian evidence that you heard in Adelaide, I noted that the one word that comes out all the time and pervades the evidence given is the word 'cruel'."
"I have been reduced to tears many times by the cruelty of officers of the department of immigration. It absolutely defies belief that people can be that cruel to another human being."
NOTE: some characters as well as some of the layout of the text has been edited to facilitate maintenance of proprietary HTML website language
6 June 2005: Marion Lê OAM, Advancing the asylum-seeker cause - a case for pragmatism - "...give some insight into four areas pivotal to this notion of the PM that 'we decide who's coming and the means by which they come': Ministerial Interventions, dob-ins, false travel documents and the Pacific Solution.
5 August 2005: The 2005 Senate Inquiry into the Migration Act - The two submissions Project SafeCom sent in for the Inquiry: Removals from Australia should be in line with Convention demands; The primary refugee determination system and also the RRT determinations have led to prolong the sheer agony of asylum seekers....
CHAIR - Welcome. Ms Bruhns, are you intending to provide evidence as well this morning?
Ms Bruhns - I will be assisting Marion.
Mrs Lê - Claire will be looking after my files. I am appearing in my capacity as a registered migration agent and advocate.
CHAIR - Ms Le, you have sent a submission to us which we have numbered 211. Before I invite you to make an opening statement, do you have any changes or additions to make to that submission?
Mrs Lê - Not really, except that I should say that, time having moved on, the minister has taken some steps in regard to the remaining Kosovo cases. As far as I know, everyone is now undergoing health checks and final clearance checks awaiting the minister's final intervention after she has received those.
CHAIR - That is an update on your submission?
Mrs Lê - Yes, it is an update on the submission.
CHAIR - I invite you to make a short opening statement after which we will go to questions.
Mrs Lê - I really welcome the opportunity to be here today. Thank you all very much for this opportunity. I think it is an important place for me to be at this period in time when there is so much emphasis on what is going on in the department of immigration and the attitude that pervades the culture of that department. One of the issues that I would like to bring out and address clearly is that, as senators, you must be concerned with the quality and accuracy of information that is provided to any minister in this government or any senator in this parliament. We should all be concerned with that.
I would like to address the quality and accuracy of information that is being provided by public servants to the minister, to the departmental heads and to other associated agencies, including ASIO and overseas posts. For example, what is the nature of ambassadorial briefings? How accurate are they? And how much can the minister - whichever minister; the one of today, next year or the years after - rely on the information that he or she has been given? I would say that at the moment Amanda Vanstone simply cannot and has not been able to rely on that information.
We also need to look at the source of the information that is being given to the department - for example, at where they are getting dob-ins. We need to ask what they actually do about information that comes across their bows. Do they put it on the file, leave it there and accept it or do they go off and treat it seriously and start to investigate? I would say that they do not do that at all. They leave it on files, and it pervades the culture of the file from that point on and takes on a life of its own, often with horrendous results, as we have seen in the case of Vivian Solon Alvarez. Right from the beginning, someone made an assumption about her and it seems to have gone on.
I would also like to raise again the lack of cultural training and awareness of many DIMIA officers. They lack formal qualifications and training. I would say that very few departmental officers who are dealing with refugees have any knowledge of the history, the culture or the countries from which those people come. They do an interview with them and there is often total ignorance on the part of the interviewing officer as to what situation these people have come from or, as I say, the historical context from which they have come.
My conclusion, after the last 30 years of working with, for and against the department, is that in the last few years it has developed a culture of denial, suspicion and active destruction of human beings. When I was reading through the transcripts of the South Australian evidence that you heard in Adelaide, I noted that the one word that comes out all the time and pervades the evidence given is the word 'cruel'. I have been reduced to tears many times by the cruelty of officers of the department of immigration. It absolutely defies belief that people can be that cruel to another human being.
I note too that the new secretary has made public statements, and those public statements are to be applauded. But the cooperation even now at some levels of the department is still marked - and will be for many months to come, I suspect - by the same culture of suspicion and secrecy. We have difficulty getting files under FOI. We find ambassadors overseas being refused access or being told, 'We could give you more information but it is classified information.' How classified is it when you give an ambassador briefings overseas, expecting him to make some representations on behalf of the government and people of Australia, yet some lower departmental officer says, 'We can't give you that information; it's classified'?
The interaction between the department of immigration and the department of foreign affairs from the department of immigration's point of view is abysmal. There is a culture of lies, cover-up and deliberate misinformation to the department of foreign affairs. Obviously that is something that should concern the minister there.
I would say too that unfortunately this minister's reactions - and I can sympathise with her - have often been defensive rather than investigative. When something is put to her, she becomes defensive and takes it personally. I personally do not see that that is the way we should be addressing issues. Policy issues should be addressed as policy issues. You would notice that I have consistently not called for the sacking of the minister. I think that is a very superficial approach to what is going on here. But the concerns that Amanda Vanstone obviously must have now should be the concerns of us all. What is the information that she is being given, where is it coming from and where are the flaws in that process? It comes back down to management procedure.
I think there has always been, in a sense, a culture of otherness, a culture that is adversarial rather than cooperative. Andrew Metcalfe is trying to turn that around by focusing on the fact that we are dealing with people, and not just pieces of paper that are floating across desks; he is trying to turn it around. Inside the department there are some very wonderful people who over the last few years have been almost destroyed by some of the work they have had to do and some of the things they have seen going on. They are applauding the fact that the Solon and Rau cases are in the limelight - in the media - because people who have voiced concerns have been silenced, and that has been a problem.
Cooperation at some levels of the department has been wonderful. I have been the person dealing with the Nauru cases, and the cooperation I have had from people like Mr John Oakley, who has been in charge of Nauru, has been terrific - extraordinary - in that we have had to do a very sensitive balancing act all the time between policy and what is going on on the ground in Nauru and here. We have had cooperation from a freedom of information section that is vastly underresourced. I think you have had evidence about the difficulties that Adelaide people are having with getting documents through FOI. We have had problems where, two years later, we still have not received files. I know from talking to those people - my office has dealings with them every day and I think we are the people who put the most requests in - that they are vastly underresourced. There is stress and there is a huge turnover of very capable officers there. Again, that needs to be addressed by putting in more resources. The cooperation I have had with many of the case officers dealing with the onshore caseload - and I am specifically talking about the Sydney office - has also been very good. So it is not all dismal and abysmal; there are some very positive things going on.
On that note, while we are focusing on the department - and there have been a lot of negative things - I want to read an email I received yesterday, which was actually sent to the Courier-Mail. I do not know whether it has been published today, but I think it is worth quoting. It is from Frederika Steen, a retired DIMIA officer who served in the department from 1984 to 2001. She writes:
There's no excuses for what happened to Vivian Alvarez, or to Cornelia Rau and so many others. I'm still waiting for the substantial compensation payment for these Australian women victims of a system which treated them without respect and dignity. The potential cost of compensation will surely focus the mind of the PM.
The Immigration Department was not always like this. I proudly served it for 18 years. Like a fish that rots from the head down, the culture change in DIMIA has everything to do with the harsh and inhumane asylum policy introduced by this Government. If you can lock up innocent men, women and little children fleeing persecution and in conditions that destroy their life and their minds, it is an easy step to trash the human rights of others caught up in a compliance and detention system without proper checks and balances.
Change inhumane policies and public servants can get back to decent and compassionate practices.
I think that says it is well as I can.
CHAIR - You were contacted by the government to process the people on Nauru, were you not?
Mrs Lê - I wish that were the case. In actual fact, the department of immigration has never paid me a cent for any of the work I have done. It has been funded basically out of my own pocket, with some assistance from community groups who paid for my first airfare to Nauru, and I have been there three times. My first airfare was funded, I think, partially. The first time, I took an interpreter whom I employed. The airfares for that trip were funded by community people.
CHAIR - So you went to Nauru on your own, as a migration agent, to process people there? Is that correct?
Mrs Lê - It is a bit of an involved story. Nobody was allowed access to Nauru - no legal representatives. But, at the time of the hunger strike, which was occurring there in December 2003, I was working behind the scenes trying to persuade the department and the minister - I was working together with the UNHCR, in a way, behind the scenes - to try to do something about resolving the issue of Nauru. At the time of the hunger strikes, some ill-advised people in Australia were cheering those people on. I was out there saying that I never condoned hunger strikes. If this was going to continue, people could not expect the government to do anything about them. If I were the minister for immigration I would not be having this kind of blackmail, as it could be seen, held over me. You could not expect anything from the minister if you continued with this.
At that point, unknown to me - although we thought it was going to happen - Amanda Vanstone announced that the case load on Nauru would be reviewed. She advised people to listen to the words of their representative, Mrs Marion Le. I did not know that I was their legal representative, but, since the minister said I was, she could hardly deny me access to Nauru. That is how it all started. But I have not received a penny of funding from the department. I have to be very honest - in the last few weeks I have become very tired of fixing up the messes of the department of immigration and having to beg people to intervene in situations that, as I have said, defy belief, actually, for cruelty.
CHAIR - During our week's hearings we heard comments such as that the department only seems to act on cases or take them seriously when they are threatened with legal action. Also, we have seen in the case of Cornelia Rau that a family member - her sister - had to continually push and push the issue. In the case of Vivian Solon, her ex-husband, as I understand, Mr Young had to continually push and push the issue. What is your response? You obviously must be aware of that. You as a migration agent perhaps need to continually hound the department, I suppose, before any action is taken. Yet, at the same time, these people are almost demonised. I think you said in your opening statement that you voice your concerns and you are silent. How is it that we have got to a culture in a department that will not even listen seriously to family members or where people become frightened to continually push a case or have to threaten to go to court before the department takes them seriously?
Mrs Lê - As you were talking, a lot of cases floated into my mind because it is not an isolated incident. I will say, though, that obviously lots of cases every year do go through without people having to threaten, but it is not isolated - you have to keep banging on the doors. I have given evidence before here in a section 417 inquiry that you often went to the previous minister, Phillip Ruddock, and he would listen because he had a very good grasp himself - an excellent grasp; second to none - of the Migration Act, which is a difficult act for anyone to either administer or understand. But we are looking at family members who keep bashing on doors and saying, 'Look at the treatment that is being given to my family.' On Nauru at the moment we have two young men. One of them was an unaccompanied minor when he arrived there. He is still there. The other was I think just 19 when he arrived. They are now in their early twenties - 21 or 22. One of them has been reduced to incidents of self-harm - very severe self-harm, where he has tried to kill himself - many times.
CHAIR - Yet most of the people on Nauru, I understand, have now been determined to be genuine refugees. Is that correct?
Mrs Lê - Yes, that is correct. When I started there, in December 2003, there were 284 people there. There are 27 now. Those 27 are all still under review. They are still being processed. I believe that all of the Afghan case load should be brought here immediately as refugees. They were refugees when they arrived; they remain refugees. Of the Iraqi case load, the two young men I am talking about specifically have family members here in Australia. In one case the brother is someone who came here under the offshore refugee program. He was judged to be a refugee and he is living here in Australia. He has written letter after letter. He is a highly articulate person.
CHAIR - So does he need the front page of the Australian before the department will do something about it?
Mrs Lê - I think so. That is the big problem.
CHAIR - Why have we got to that stage?
Mrs Lê - There are systems that we have to follow. We all have to act within systems, and sometimes people fall through the cracks in those systems. But I myself cannot see how you can ever deteriorate to a point where you just become blatantly cruel. In that case, there are two complete families here who are willing to look after those young men, one of whom was a child when he arrived, and yet they are totally ignored. When I went and started to talk to them and look at their stories, I heard the horrendous story of how, in one young man's case, his mother was executed with four bullets because of the fact that her other sons had left. As I say, one of them is in Australia as a refugee. And we expect a kid of 17 to survive that.
And then there are the sorts of questions that he is asked. Let me bring this case to you. This is one of the most horrendous of these cases. This is a kid who was born in 1984. My son was born in 1985, so when I look at that boy, I see my son. As a mother, I see my son. This is, by the way, one of the very many reports that I have sent on individual cases to the department. As I say, only 27 people are there left there. You will see that Bob Illingworth was asked a question by, I think, Senator Bartlett in the estimates committee. Bob Illingworth of the department was asked how those case loads are going. He said, 'We are still waiting on submissions and we're still looking at submissions by a community advocate.' That community advocate is me. What am I doing? I am providing the review, free of charge, for the department of immigration to get their act together and get it right. I have never come out and said that before, but that is what has happened. I am the review person doing it for nothing and they wait and we put it together, Claire and I. Claire works in my office on a pro bono basis, and some nights she is there overnight. They are waiting for us to put this information, and we are still waiting in this case.
Let me read you something. This was the first interview with the kid when he first arrived. This is from my submission. What I find most offensive about this interview is that the applicant, still legally a child, was repeating again and again that he did not want to join a group that might force him to kill innocent people, and the interviewer was totally unsympathetic to his situation. I am particularly concerned about comments like, 'What's the problem? Why is that a problem?' when the applicant was saying he believed he would be asked to kill innocent people. The boy said, 'People didn't do anything. Why should I want to kill them?'
I also consider the following two comments totally inappropriate statements to make to any unaccompanied minor, let alone a young asylum seeker: 'Why insult the party when you know you will be executed?' and 'The law of your country permits execution for your offence, so you are escaping from the law.' This is a boy, a kid, saying, 'If I had joined that particular party in Iraq, I would have been expected to kill innocent people,' and the interviewer says, 'Well, that's your law. Why didn't you do it?' The boy tried to say that the group he did not want to join was a group of boys who are trained to do things like, believe it or not, bite off the heads of live chooks. That is one of the things they are trained to do. And the woman is saying, 'If that's what the training is, why don't you just go ahead and do the training? It's just like Boy Scouts. Here in Australia, people join the Boy Scouts.' Believe me, that is what this interviewer was saying.
We went in and found that in fact what that boy was saying at 17 was absolutely correct. Saddam's kids army trained to play dirty. A source said:
After the 1991 Persian Gulf War, Saddam's security police began forcing boys as young as 6 from their families and into intensive boot camps. There, they are beaten, forced to kill animals and indoctrinated with Baath Party propaganda.
A 17-year-old kid said, 'I don't want to do that,' and the interviewer - ignorant, stupid, nasty, cruel - said, 'Why not? That's the law of your country.' We got that from Immigration files which we had to fight to get for over 2½ years. Why is this boy at the last? Because we could not hold of his documents. I do not blame some of those people wanting it to hit the light of day. I am putting all these things in the archives of the National Library. One day someone will research them and history will tell this government what they have done. That boy is still on Nauru, and that is a disgrace to us all.
CHAIR - Mrs Lê, perhaps -
Mrs Lê - Sorry, but I do get upset. I have looked at that kid.
CHAIR - Please do not apologise for your evidence, Mrs Lê, but, in order to save us time, you could provide that document to us as a confidential supplementary submission.
Mrs Lê - It does not need to be confidential. I have the permission of this young man's family and from that young boy himself to provide you with anything you want about this situation.
CHAIR - If you like to provide that as a submission to us, we could take it.
Senator JOYCE - Thank you, Mrs Lê. I understand the emotion you have about this issue, but my job here is to check the veracity of some of the statements you just made. In your opening statement you talked about 'total ignorance of the interviewing officer' of the country from which the person comes - that is, absolutely no knowledge at all. Do you stand by that statement?
Mrs Lê - I think that we can nitpick about total ignorance. Probably - often - the person can spell the name of the country. They may even know that it is somewhere in the Middle East. But I have been a teacher for over 30 years. I am trained to look at what children do or do not know. When I am talking about total ignorance, if you want to nitpick on that issue, that is fine, but I think we should be dealing with a lot of other things. I will withdraw and say 'almost total ignorance'.
Senator JOYCE - That is different from total ignorance. One is an emotive statement -
Mrs Lê - We can nitpick, Senator, or we can deal with the real substantive issues.
Senator JOYCE - and what we have to remove from this is the emotive statements and get the facts back in there.
Mrs Lê - I am sorry, but I cannot really divorce myself when I am sitting looking at a boy who has been treated like that, when I am sitting looking at a boy who was in Baxter and is now in Glenside. I think Claire O'Connor raised his case. I am a mother as well as a researcher and academic. I am sorry: you might be able to divorce your emotions; I cannot.
Senator JOYCE - I try to get to the facts and divide fact from emotion, because emotion is not factual. Statements that are obviously wrong, which formed part of your opening statement, call into doubt further statements that follow on. You also said that the minister is apparently not aware of the full facts of the department. There is almost an implication there that the government is not in control of the department. It sounds like a job for the ADF - we should be sending someone in - because there is obviously another force that is governing the country. Do you stand by the statement that you believe that you believe that the minister is not aware of what is going on in her department?
Mrs Lê - I do not see how she possibly could be aware of everything that is going on in her department. It is a huge department; it is extremely diverse.
Senator JOYCE - And you believe that there is an implied direction by somebody somewhere to do that?
Mrs Lê - To do what?
Senator JOYCE - To not avail her of the facts, to not keep her properly informed.
Mrs Lê - I think you are extrapolating from something I said and giving it a meaning and a life that I did not mean. I am trying to say that often things are going on inside the department. The minister is not being informed correctly by her department. That is very clear from the Solon report at the very least. People were not passing information that they had at their fingertips to senior officers, thence the minister is not being informed either. That has to be of concern to all of us, surely.
Senator JOYCE - So who is responsible for not informing the minister?
Mrs Lê - It comes to whoever the relevant officer is who should be telling the person above him. It is just a total managerial process.
Senator JOYCE - Do you think that is some person's own decision or do you think that there is some other force - another culture - in the background? Do you think there is another form of government or something that directs it?
Senator FIERRAVANTI-WELLS - You made the allegation. Name people. You say you have 30 years experience dealing with the government. Why do you not name people?
Mrs Lê - I said I have 30 years experience of teaching -
CHAIR - Senator Fierravanti-Wells, we need to be careful about naming of witnesses -
Senator FIERRAVANTI-WELLS - No. This woman has made serious allegations, Senator. She tells us she has 30 years experience. She tells us that she has been dealing with the department. She has made serious allegations about a so-called withholding of information. This is serious. If she is making these sorts of allegations, she can put her money where her mouth is and tell us who it is that is not, allegedly, informing the minister. That is my point.
Senator JOYCE - Ms Le, you can see the inference I get that there is a subculture that has some direction to it. If it is happening, it is almost treason. We would all be all ears and eyes if we can prove that.
Senator BARTLETT - Read the report that was tabled yesterday.
Senator JOYCE - We keep on talking about the Cornelia Rau and Vivian Solon cases. They have received a lot of attention. There is no excuse for them and no one would ever put up a reason that they are excusable, but we are talking about two cases out of a population of 20 million people in Australia.
Mrs Lê - I think I made the point that this culture does not exist all through the department. I even said that I have had a lot of cooperation from people within the department. There is no question about the fact that there are some extremely good officers there, but Andrew Metcalfe himself has admitted that there is a need to change the culture there. If you are asking me to provide you with information, I am treating you, the senators here, with respect. You are elected representatives of the people of Australia, including me. I am trying to say to you that, if I were to ever get to the position of being a minister in this government, I would want to make sure that the information I am being given is accurate. That is a statement of fact that I would have hoped would say to you that I am coming here today to say there are some very serious levels of concern with the amount and accuracy of information that is being provided to ministers of this government. That is not an attack on the minister, as such; it is an attack - if it is an attack - on the process that is being adopted within some sections of the Public Service. In this case, we are focusing primarily on the department of immigration.
If I am saying that, believe me, I can back things with fact. I may get emotional about those facts, because there are many of us who work in this area day by day and deal with the facts. We then try to put those facts to the department of immigration. If you are asking for facts, as Senator Bartlett said a minute ago, you need to read the report on the Solon case. I have not had a chance to read the whole lot; my computer kept conking out last night trying to download it all. We need to look at those things seriously and say: we can apologise; the minister can apologise; the secretary of the department can apologise; all the people all the way along can apologise, but the damage that has been done in the interim to the children of Vivian Solon is something that probably none of us can measure. We need to make sure that we move on from there and look at making sure that this never happens again.
Senator JOYCE - I agree - I am not making excuses. Not for one moment do I ever doubt the genuineness of your emotion - I am separating the emotions from the facts - nor am I casting the aspersion that your emotion is something completely personal for you and not justified from your own personal paradigm. But I am dividing the emotions from the fact. I noted your statements on border control. You believe that we cannot have an open door policy. Is that correct?
Mrs Lê - Absolutely.
Senator JOYCE - However, you also believe that we cannot have separation of families and that children should never be detained. If a family comes in with children, what do we do with them if they are not supposed to be here?
Mrs Lê - I think the Prime Minister has already made some steps in that regard. He has also voiced his concern about that. It is coming from the Prime Minister down. I applaud that. Obviously, that is an approach that we should be taking. We can detain people when they first arrive if necessary to find out who they are, but beyond that we should not be detaining. I have been around for too long and I am getting too old now to say over and over again that there has been a deterioration in this policy. My husband came by boat many years ago - in 1977. At that period of time when I first got involved with Vietnamese refugees, nobody was detained. He was detained for I think eight days in Darwin while they ascertained who these people were and who had actually brought the boat here that he came on. It was a big boat - a very famous boat. But not one of those women or children on that boat - there were 183 people - with the exception of the main crew, which included my husband, were kept in Darwin. The rest of them were flown to Westbridge hostel. We now know that as Villawood Detention Centre - a high security jail.
Senator JOYCE - I have stayed there.
Mrs Lê - It is quite different. You have stayed in Villawood?
Senator JOYCE - I was billeted there back when I was playing football.
CHAIR - It looks a bit different now.
Mrs Lê - It is very different.
Senator JOYCE - What I am getting at - and I am just posing the question - is that someone might arrive that you have serious concerns about. You may think they are an opportunist, that they are lying to you and that they have not been telling the truth - they said they were from Afghanistan but they are possibly from Pakistan, and you cannot quite make the story out. There are children and adults. What are we to do? You can go down the English example, let them out and you will never see them again or you have to detain them until you can verify where the truth lies. In the case of some of these people, just lately, after having long assertions about a certain fact being correct and that they were from a certain place - this is from the front page of the Australian again - we have found out that they lied.
Mrs Lê - I am sorry, I am not -
Senator JOYCE - I am referring to the Bakhtiyari case.
Mrs Lê - If we want to go into the Bakhtiyaris, I could tell you a number of things about the Bakhtiyaris. I am thinking I might in the next few days publish the real story of Ali Bakhtiyari. I would say again that we have two boys here. One of them now is 16 and the other is 14. They came here near 2000. We are talking about kids who are now out there saying, 'Mea culpa, mea culpa,' - little kids who we locked up. When I saw them, one of them had slashed his arms. He was trying to kill himself. We should not be locking up children. When those kids came here, what did they know about anything? Kids only know what they are told. Their mother was told by the people smuggler, one assumes, to say that she came from the village that her husband came from - it would make things simpler. In actual fact, she came from Daoud in Afghanistan. Ali Bakhtiyari told me that very early on. He said: 'I don't know why she said she came from my village. Why did my wife lie?' I said, 'Because I presume she was told to do that by the people smugglers.'
Senator JOYCE - People influenced her to lie, apparently. People advised her to lie.
Mrs Lê - The people smugglers -
Senator JOYCE - There were people who told her to lie because it could exploit the system.
CHAIR - Senator Joyce, we need to let the witness finish.
Senator JOYCE - I have one last thing. I hear the case you gave about the child. It was completely correct. Obviously, on the issue with the Baathist party, there is no doubt about that Saddam Hussein - he was a bad man, wasn't he. Lucky we got rid of him!
Senator BARTLETT - Lucky we locked up his victims for four years!
CHAIR - Mrs Lê, did you want to add something to your comments?
Mrs Lê - We have raised the Bakhtiyaris. This is the level of 'dob in,' as I call it, that happened at the beginning. This is from the file about the boat. It is an attachment to an email with the heading 'Intel Advice' and it numbers various boats. I will name the person, since you asked. It was sent by Terence Johnson to Heather Penhaligon on 22 March 2001 at 1648 hours. It said:
Afghans and Pakistanis identified on Urangan, Virginia ... boats based on information collected during a visit to Woomera on 5 to 12 March 2001.
You will see in my copy that all names are deleted except for the people I was asking about, but it does not delete the case manager. So, again, Vincent Tysoe -
CHAIR - I am sorry to interrupt you, but we would appreciate it if you would not name names.
Mrs Lê - That is fine with me; it is just that Senator Joyce asked for names and whether I had the facts.
Senator JOYCE - I asked for a clarification of the facts; I did not ask for names.
Mrs Lê - All right. We have a list here of informants. Informant 1 said about Rakiya Bakhtiyari:
Afghan. Husband is a Pakistani who came on an earlier boat and has a visa - travelling with brother-in-law.
That level of information from intel says from day one that she is Afghan but that her husband is Pakistani and that she, by implication, is travelling with her brother-in-law. From that, someone decided that another person on that boat called Mohib Suwari, must be the brother-in-law because he looked a little bit like Ali Bakhtiyari. As a result of that, Mohib Suwari was arrested and with his children was taken from Tasmania and thrown into Baxter detention centre. In order for him to prove that he was not Ali Bakhtiyari's brother, I had to go all the way to Afghanistan. What was the real information here? A family was picked up and it cost $30,000 to fly them in a highly traumatising air lift from Tasmania to Baxter on the basis of this information. Do you know what it was? It was a blatant mistake. Firstly, if we just take the factual mistake, Rakiya was actually travelling with her brother. She was travelling with the brother-in-law of Ali Bakhtiyari; not with her brother-in-law. That is a mistake there. The other thing was that right from the beginning, the informant, whoever that person was, said she was Afghani and that Ali was Pakistani. I can assure you that Ali Bakhtiyari is not Pakistani. But it went from that tiny little 'dob in' on day one to affect another family and sent me to Afghanistan.
Senator JOYCE - The point I am making is that the two Bakhtiyari boys have now admitted that they lied and that their lie was influenced and inspired by those around them in order to get an advantage as regards immigration.
Mrs Lê - Excuse me, Senator, I do not think the Bakhtiyari boys were ever asked about anything in any court at any time. If they said something like, 'We came straight from Afghanistan,' they are seemingly now saying that their father travelled into Iran and Pakistan first. That is absolutely the truth. Ali Bakhtiyari has told me that story and nobody ever asked him about that in great depth. Those boys are under age, Senator. They were never asked questions in a court of law. If they said, 'We are from Afghanistan' - because that is where they are from - and did not bother to say, 'Yes, we fled and were living for some time moving around in a very itinerant, disruptive way,' then so be it; they are kids.
Senator JOYCE - The problem I have is with the people who advised the Bakhtiyari boys -
Mrs Lê - That was not me.
Senator JOYCE - that this would assist their case.
Mrs Lê - I do not think that ever happened. I do not believe for one moment that anyone helping the Bakhtiyaris told them to lie. I do not believe that. Not one lawyer, migration agent, or anyone trying to deal with them, would have told them to lie. I certainly told Ali all the time to try to sort out the problems which had arisen. When they found that Rakiya was there that early, she was still in detention. Did someone, in all compassion, tell her husband that his wife and children had arrived there? No, it took Mazar Ali jumping on the razor wire in Woomera to let the Australian public know what had gone on. As I think Senator Crossin's question was: how many times does someone have to get on to the front page of a newspaper to allow families to know that they are going to get some kind of recourse to justice or even basic humanity?
Senator NETTLE - Thank you for your evidence. I want to ask you about dob-ins. You have talked a bit about the effect of dob-ins. Do you have an idea of how widespread they are? The examples that you have given us so far are of the department taking dob-ins as fact. Is that a standard or regular procedure - dob-ins being taken as fact?
Mrs Lê - Unfortunately, they are often totally taken as fact. I think I quoted in my submission the case of the Bitanis. It defies belief. This family has never been to Sydney, someone walks into an office in Sydney, gives a mobile phone number - which did not work - refuses to give his name and defames them. He defames a young woman by saying that she is defrauding the government, saying she is living with a person who is really her mother. One would think, I would have thought, that if that kind of information were being given to a departmental officer in Sydney it would be pretty serious information, because it was saying here is a couple who are defrauding the government, who are claiming one identity when in actual fact there is another. But, worse than that, it was saying that we have another woman who is living with them in Adelaide who is doing the same thing. She has given another name and she is now before the RRT under that so-called 'false name'. She is really the mother of this other woman. That is very serious, is it not?
If it were me, I would be saying, 'Investigate it straight away. Call both parties in. If necessary, get a DNA test. If they are defrauding the government, if they are lying, cheating, wasting our time and our money - taxpayers' money - in the courts, then charge them.' It carries a fine, as I always tell people: 'You can go to jail for between 12 and 20 years if you lie. Do not lie. Tell the truth for whatever reason and then let me, as your agent, sort it out. Tell the truth.' But do the department treat her like? No, they do not. They say, 'Okay, here's a dob-in. We'll leave it on the file and when we come to do a ministerial intervention we will put that dob-in unchanged in the ministerial and away it will go to the minister.' It says: 'Back there in' - whenever it was - '2000 we got this dob-in and therefore, Minister, this is the reason why you should reject these people for your intervention.'
Later on when we who have been fighting for five years to find out what the dob-in is get it we produce statutory declarations we say, 'Yes, she'll have a DNA'. The other woman is beside herself, because she is actually a very well known world famous psychiatrist and she says, 'Everyone knows who I am. Search me on the internet.' Do the department acknowledge that? Do they apologise? No, they do not. They then decide that Majlinda and Alban Bitani are someone else. They decide to do some more things because 'We can't have got that dob-in wrong; they must be hiding something,' so they are now wasting taxpayers' money. They say, 'We will throw him into detention.' They say - I have just been reading it again today - 'We threw Mr Bitani into detention a few months ago. Do you know why? Because we did an interview with him and he gave inconsistent answers.' The department went out in November 2004 and searched the Bitani home, because we had managed to prove that the dob-in was wrong. So in 2004 they searched his house and during that time they took away a few documents; they took away three photographs.
They decided to interview Mr Bitani in April 2005, and the allegations of a false identity were put to him. In response, Mr Bitani denied changing his identity. However, he provided no plausible explanation for the inconsistency between the departmental evidence and his claims. I want you to listen to this: as a result of this interview in which he could not provide proper responses to what they were putting to him, Mr Bitani was detained on 5 April 2005 by Adelaide compliance. I might add that at the moment Mr and Mrs Bitani are in Calvary Hospital, where she is giving birth. I just dropped her there before I came here. Mr Bitani is still in community detention. The Department of Immigration and Multicultural and Indigenous Affairs - as a result of an interview they had with him where he could not explain certain things - put him in detention.
Let me tell you what that was. They took away two photographs. The one that they found the most worrying was a photograph of little Gracy Bitani, four years of age, blowing out the candles on a birthday cake. Alongside her in that photograph were her mother, Valbona Kola and another woman. It did not have anything on the back except that it said this is a birthday party and Gracy is blowing out the candles. There were 25 candles. So they said, 'Obviously this was her mother's birthday, but information received by the department is that Mrs Bitani is not 25; she is 31.' I am serious about this. They then asked Mr Bitani, 'Do you know when this occasion occurred?' He said, 'I have no idea. Obviously it was some lunch party or something with my wife. I don't know anything about it.' They said, 'Obviously you are lying, because the person who your wife is supposed to be - Eliona - would have been 25, so therefore you are lying to the department.' His visa was cancelled and he was put into detention.
It took us six weeks before we finally managed to get a copy of that photograph. I asked him, 'What is this photograph that they talked about?' He said, 'I don't know. It was ...' and he named people at a party. So I asked Majlinda, 'Whose party would it be?' She said, 'I have no idea unless I see the photo.' When we got the photograph, she said, 'Oh, that is so and so's party.' I rang up the girl whose party it was and she produced a statutory declaration within a day that said, 'That is my birthday party.' I then rang up the other girl in the photograph - the one I have not identified - and asked, 'Do you remember this?' She said, 'I have photos from being at that party myself. I will send you copies.' They threw a man in detention on that kind of flimsy evidence. He is now out; he is in community detention here in Canberra, but that is the level we are talking about.
With the Kolas, I can go on and on forever and I am more than happy to.
CHAIR - Mrs Lê, we do have limited time.
Mrs Lê - Yes, okay. But that is the level of so-called evidence. First of all a dob-in in Sydney and later on a photograph which Mr Bitani says, 'I know nothing about,' - and they did not even ask Mrs Bitani about it.
Senator NETTLE - Have you seen any changes since the Palmer report, legislative change or, in particular, the Ombudsman's investigations into long-term detainees and how they are working?
Mrs Lê - That is an interesting question. I voiced concerns quite early on that by saying that we have to have yet another level of bureaucracy investigating what is going on in long-term detention or anything else, we were going to make more work for everybody in the long run. In the last week I have received three requests from the Ombudsman's office to provide them with information about three of my clients. I brought one of these requests with me.
The senior investigation officer of the immigration detention team of the Commonwealth Ombudsman sent me an email - one of three - in respect to a client which says, 'We have met this person who is now in Glenside at Adelaide and he told us you are his migration agent. We'd like to provide you with this opportunity to tell us anything you think may be relevant in our assessment of his circumstances. You are welcome to do so by return email or by telephoning me on the number below. We understand the minister has intervened under section 48B. Can you tell us about the case and whether there is any progress? Do you have a copy of Dr Jon Jureidini's report of 29 June 2005? Do you have any other information about his medical circumstances?' and so on.
I did the section 48B application to the minister. The minister is actively, as I understand it, considering it at the moment. Now I have the Ombudsman writing and asking if I can provide information that they obviously have not been able to receive from the department so they now fall back on the migration agent for. This is another pro bono case. Most of my detention ones are. I felt like Claire O'Connor when I read her evidence. We are doing this pro bono. We are stretched to the limit, and the Ombudsman's office is obviously stretched to the limit as well.
We also have a DIMIA report here that came to hand yesterday, which is a report to the Ombudsman on, strangely enough, that same person. It came into our hands because I had requested his file under FOI. It is unfortunately full of inaccuracies. That is the report going from DIMIA to the Ombudsman. It is full of inaccuracies, and it states, under the Management/medical issues heading:
As per the agreement between the Commonwealth Ombudsman, the department and GSL made on 10 August 2005, a medical summary report will be sent separately in the near future.
We have the medical summary report. So we have it but the Ombudsman does not, so the Ombudsman has to write to us and ask us for it. Increasingly I am feeling I am an outpost of the Department of Immigration and Multicultural and Indigenous Affairs.
In this case there is a very important issue with this gentleman. He is one of the cases, which I did not realise until I read Claire O'Connor's evidence, that she was saying she took to the court and they decided to transfer him. I wrote a letter when I saw him in Glenside. I did not know Claire was doing that case. He is another young boy who came as an unaccompanied minor. He is now about 22 years old. Last time I saw him he was drugged up to his eyeballs in Baxter. I took one look at him and he can hardly talk now. I said, 'Oh sweetheart, what have they done to you?' I left Baxter that night; I could not stand it. One day in Baxter last time was enough for me, seeing the kids I had dealt with over four years reduced to nothing. And I do not apologise for being emotional about that. That is the destruction of fine young human beings, even if they are Pakistanis - which they are not.
Let me tell you a bit more about him, because this should be of great concern to all of us. This young kid came in, and when he came in they went through a whole series of questions about whether or not he is an Afghani. He said he was an Afghani. Someone dobbed him in and said he might be an Iranian. Somebody else said he might be a Pakistani. So we have gone through the list. At various times he was said to be Iranian and he was offered a return. This is all guesswork. But the most serious thing is that, right from the beginning, his first medical report said that he is a hepatitis B carrier and he is a public health concern. That was on the original document. It says, 'Hep B; notifiable disease. The CDC contact number is ...' So the first medical report said, 'Hep B carrier; public health concern; send it off.'
Later on, the report that went to the Ombudsman said that he is hep C positive, but he is hep B positive. He is in Glenside now. They say he will never recover. I think Claire O'Connor talked to you about people who will never recover. That boy is beyond recovery in my opinion too. I am not a medico, but he is hearing voices; he is totally schizophrenic. Of grave concern to us all should be that that very first medical report was ignored, and he was working in the kitchens in Woomera and Baxter.
CHAIR - Mrs Lê, I am going to ask the remaining senators to give us one question each. I ask you to keep your answers brief. If anyone else has other questions they want to ask, we will have to put them on notice, because it is 11 o'clock. It has come to my attention that at three o'clock yesterday afternoon the ABC apologised to the Bakhtiyaris for the misuse of the word. Apparently the boy said 'It was caused by our lawyers' rather than 'it was caused by our lies'. So I just wanted to correct the public record.
Mrs Lê - Thank you.
CHAIR - Senator Bartlett, I am only going to let you have one question. I would ask you to keep your answer brief, Mrs Lê.
Senator BARTLETT - By way of introduction, I am loathe to give you guys more work. We have had a suggestion from Senator Fierravanti-Wells that you should name names. I do not think that is a constructive way to go for our committee, because we do not want to be targeting people. But I do think providing material that reinforces that these are factually based claims is useful. If you are able to provide that to the committee, we can address what to publish and what not to publish, with some examples. That would be useful.
My understanding is that you are the only person that has been allowed into Nauru to work on the cases of literally hundreds of people, and literally hundreds of those have all been granted visas of one form or another. From a previous inquiry into ministerial discretion, I think you were identified as the person that had the highest percentage of what one might call successful requests for ministerial intervention, where you asked the minister to intervene in particular cases. With that degree of history, plus the 20 years et cetera of involvement in immigration issues, for our guidance as a committee - even though you have identified some things in your submission - are there any specific legislative changes, as opposed to just political pressure about getting our act together, that you think would assist in reducing some of the problems that you have identified?
Mrs Lê - A policy of mandatory detention, of indefinite detention, is obviously going to bring harm to people who have it imposed upon them. We need to look at that. We need to set time limits for detention. As Senator Joyce said, I do not agree with open-border policy. If we are going to detain people, though, it should be for a very short space of time. That is the major change I would like to see in the act. I also think that the whole ridiculous notion that we can excise certain places from Australia is a fiction. I said that before in a hearing in the Senate. That is just a notional fiction. In actual fact we cannot abrogate our responsibilities like that. I think that is very clear over Nauru. I might mention Lombok. Australia is still funding people to be kept there. That is a pretty well-kept secret, I think. We do not hear too much about Lombok. I would like to see Lombok brought more to the public and to the minister. Again, we have family members of people here in Australia detained there. I would like to see those kinds of policy areas addressed and addressed with a sensible, commonsense approach.
The other area of major concern to all of us - and I see this has been brought to you before - is the TPVs, the temporary protection visas. It is such a destructive policy to give people temporary protection visas, not to allow them to really get on with their lives, to move on and to have family reunion. In those three areas particularly I think we need very quick legislative change.
Senator FIERRAVANTI-WELLS - I thought you said you had been involved for 30 years. Is it 20 years or 30 years, just as a point of clarification before I ask my question?
Mrs Lê - It probably is 30. I was a teacher as well.
Senator FIERRAVANTI-WELLS - Obviously over those 30 years you would have overseen the introduction of detention, not by this government but by a previous government. So you would have had occasion to deal with detention cases over many years under a previous regime. But you have obviously isolated this government as particularly negative in that respect. Perhaps you might provide this information subsequently. You have obviously dealt with many cases over the years, and what I would like to know is how many of your cases were ultimately deported from Australia? I am not asking for names. I am asking for just a general analysis. I would also be interested to know, in relation to your experience with detention over the years, whether the main reason people have been kept in detention longer has been occasioned by misinformation provided as a direct consequence from the detainees themselves and additionally delayed by legal proceedings they have instigated, falsely or rightly. I am happy for you to provide that in writing. I appreciate the comments that you have made in relation to three or four specific cases, but I would really like you to give us a more global picture of your experience over the years, perhaps a more analytical and statistical picture rather than what I think was a much more emotive one given to the committee today.
Mrs Lê - Senator, as far as I am aware, not one of my cases has ever been deported.
Senator FIERRAVANTI-WELLS - If you could still provide the information -
Mrs Lê - That is the information. I have dealt with 56 -
Senator FIERRAVANTI-WELLS - You have obviously had a number of cases over many years. I have asked you to give some statistical substance to some of the information you have provided today, and I formally ask you to provide that on notice.
Senator KIRK - I want to ask you about the section 417 process that you have alluded to on a few occasions. I think I heard it said by Senator Bartlett that you have had a fairly high success rate in that regard. I notice from your submission that you have some serious concerns about the information being passed to the minister in this process, and whether the minister is in fact even making the decisions about the matters that she considers. You seem to suggest that the officers determine not only what information is put before the minister but also whether the request should even go to the minister. Would you outline for us more detail on that. It seems to me to be quite a serious matter if the minister is meant to be exercising her discretion yet some of the matters are not even being brought to her attention. Would you elaborate a bit more for us on that.
Mrs Lê - Yes. I do not think it is just this minister; it is also the procedures by which the cases go to the ministerial intervention unit. Often before they get that far, they go back to the original case officer first. I did comment on that at an earlier inquiry and gave some case-specific examples of where information was wrongly given or not looked at. The case officer who rejected it in the first place looks at it again and then says, 'No, it should not go for ministerial intervention.'
On a positive note, given the change in attitude towards the detention regime lately, we have seen that cases such as section 48B requests and section 417s from people in detention have been going through at quite a fast rate and that the minister has been approving a lot more of those detention cases, and of course she did that with Nauru. Obviously there is a need to look at cases, and so she has been doing that. My concern is that so many cases now have to go to the minister. There is no way that any minister, any one person - as I was trying to say before, it is not that I am putting this on the minister at all - is capable of looking at the numbers of cases across the board that must be now coming to her. Yet she is the person being asked to take the rap. She is the one whose name is out there and who is being asked to resign. As I opened, I said that as senators you - and we - should all be concerned that the senator does not have to take the rap for administrative errors or misinformation that is being put there. If some people thought I was saying, 'That's the fault of the minister,' I am really saying that it is the process. If you are getting so many cases going to the minister for intervention, there is something wrong with the system.
Senator KIRK - My question to you is: how do you think that system could be improved?
Mrs Lê - You have to start from the bottom and do the first interviews correctly. I welcome what Andrew Metcalfe said about putting in more people to train staff so that when someone, say, fronts up to their first boatload of Afghans they are not ignorant of who a Hazara is. I did not know who a Hazara was when I first dealt with them. I had to go on a very fast and informative learning curve.
We have to get it right at the beginning. We have to have a positive attitude to the person sitting in front of us and not an attitude of suspecting that they are all coming here to lie and cheat and try to get their way through for some kind of reward. I have never seen that attitude from a person who has gotten off a rickety old boat. We have to get it right there. If we can train those initial case officers, then we will cut out a lot of long-term procedures. Then the RRT can wind down a little bit, because hopefully they will not have to do the major work that they are being called upon to do at the moment.
Then we can properly look at cases that might not strictly fall into convention cases - if that is all we are talking about here, and we seem to always focus on them, although there is a vast number of other migration cases out there that also go to the minister for ministerial intervention. If you are looking at procedures as you go along, why not do them all together? For example, you may have a person who will fall under the convention on torture. But at the moment, we are looking at the convention related claims and saying, 'They're not fitting into that,' so then they go to the minister for an intervention. When they come back, some of the people may be lucky enough to have someone who is going to put up a case against the convention on torture. But it is prolonging the process. If we tried to look at them all together as it is going along, the procedure would be much better and we would save a lot of suffering.
We particularly found this to be the case on Nauru. On the files there were statements like, 'This person's case could fall under CAT' - the convention against torture - or, 'This one needs to be looked at under ICCPR.' But nothing happened. When we said: 'Wait a minute: this guy's had a torture problem that you've said was obvious right from day one. Why hasn't it been looked at?' The answer was, 'We look at it at the end of the process when we're about to deport someone.' Clearly, we can fast track that a bit. The policy in the last few years has come from public statements from - and I have to say this - Philip Ruddock, who many people know has been a good friend to me over many years before he got to be the minister. From the time Philip Ruddock started accusing people of doing all these kinds of things, inside the department there developed the culture of us being expected to reject; us being expected to provide the minister with a reason to reject. That is dishonest, and it is not really what Philip Ruddock would have thought was appropriate, either - I am sure he would not think that to be appropriate. But, unfortunately, when we open our mouths and say things, those things have repercussions that may be unexpected.
CHAIR - Thank you very much, Mrs Lê, for your evidence this morning and for taking the time to appear before the committee. We appreciate that. Are you happy to take questions from us on notice?
Mrs Lê - Yes, that is okay.
Proceedings suspended from 11.14 am to 11.25 am