Oskar Schindler and the people smuggler
Under Australia's interpretation of what constitutes a 'people smuggler', the young man who sold the donkey to Joseph and Mary would be prosecuted and imprisoned by law. So would the priest who helped the Von Trapp family cross the Alps away from Germany, where they would have been persecuted.
IMAGE: thanks to Peter Nicholson cartoons
This page is about Ali Al Jenabi, one of those people smugglers. But Mr Jenabi, after serving 'more than his due time', has finally won his day in the courts to set some things straight. Below are some contributions by the Sydney Morning Herald's Immigration reporter Connie Levett - and we start with Bruce Haigh's confesssions about his own work as a people smuggler.
February 2008 Update: the court decides
The outcome of the case was not good. The last three articles here report on the final decision by Chris Evans, the recently appointed Immigration Minister under the new Rudd government. It's "back to the days of the Ruddock Rhetoric, according to Kerry Murphy in Eureka Street.
Confessions of an Australian diplomat guilty of unashamed kindness
Sydney Morning Herald
According to the Howard Government I am a people smuggler and as such should be prosecuted and put in prison. As a young Australian diplomat posted to South Africa from 1976 to 1979, I was confronted by a ruthless police state enforcing white privilege over a black majority through the comprehensive system of race discrimination known as apartheid.
Black activists, friends and bystanders were taken into custody, tortured and sometimes murdered. This is what happened in September 1977 to Steve Biko, the exceptional leader of the Black Consciousness Movement and a friend of mine.
Using my diplomatic immunity I was able to assist victims of apartheid. I took black activists across the border to safety and shuttled others from one place to another to avoid the security police. I put some up at home until the security police grew tired of looking for them and I took others, who were banned, to clandestine meetings.
The first person I helped to leave South Africa was an older African National Congress operative who I met through mutual friends. He asked if I could take him to Swaziland as things were getting hot in South Africa and he had "matters to discuss" with Bishop Mandlenkosi Zwane, who was an influential member of the ANC.
It was an easy matter to take him out of the country. He lay on the back floor of my Peugeot and I covered him with blankets. We went through the border without incident. That was August 1977.
The next person I took out was the newspaper editor and critic of apartheid, Donald Woods. He had to leave because police had fired shots into his house and his youngest daughter was posted a T-shirt which burnt her because it had been impregnated with a chemical by the police. He was also banned, which meant that under threat of detention he could only meet one person at a time. He had written a book about Biko which he wanted to publicise and also tell the world about apartheid, which he did.
He wanted detailed plans prepared which was a pain but understandable as he wanted his wife and children to join him once he was safely in Maseru, the capital of Lesotho. All went according to plan. The escape was portrayed in the Richard Attenborough film, Cry Freedom.
I also took some students from Soweto to Swaziland. They wanted to apply for refugee status in Australia but were knocked back by officials at the Australian embassy in Pretoria. I couldn't say or do much because my border activities were not known in the embassy.
Some people left the country never wanting to return, others left to gain respite from the security police, intending to return, and others went to hold meetings with opposition groups in neighbouring countries. Others went to pick up money to distribute to the families of political prisoners. The borders were fairly porous.
What prompts this confession is the tragic story of Ali Al Jenabi, an Iraqi convicted of people smuggling and who is seeking refugee status in Australia. For some time I have been aware of his detention in Villawood. However, as I read an account of his case in the Herald this month, I felt an injustice had been done to him.
There seems to be no one in the Howard Government able to comprehend the fear and danger of living in a police state which can drive some to flee from all that is familiar.
The compelling needs of a refugee often finds a positive response in the marketplace. Al Jenabi, among others, responded with a mixture of compassion, common sense and self-interest. The latter being the need for money to support his family and fund other family members through "the pipeline" to Australia.
It seems to me there is an evilness at play when a person like Al Jenabi becomes an enemy of the state.
So how should the issue of people smugglers be solved? Should they be seen as cutthroat moneygrubbers, cruel and careless with their human cargo? Are they responding to need and do they provide a service in a free-market environment? Where is the evidence that people smugglers are lacking in compassion? The truth is they are a mixed bunch - good, bad, compassionate and callous. Whatever their motivation and make-up this does not alter the essential nature of their service to refugees.
It is inconsistent and contradictory for the Government to take the moral high ground, accusing people smugglers of base motives, in the light of its own actions over Tampa, the children overboard incident and the prolonged detention of refugees, including children.
According to this Government, I am a people smuggler. I provided a service outside the marketplace, although one existed. I like to believe that the people I helped escaped injury or perhaps death and were able to lead a better life. Ali Al Jenabi has done no more or less.
Bruce Haigh was a diplomat for 25 years, serving in Pakistan, Iran, Afghanistan, South Africa, Saudi Arabia and Sri Lanka. He also served on the Refugee Review Tribunal for five years.
'Protect this man': so why is he still locked up?
Sydney Morning Herald
IT IS 12 months since the Department of Immigration found Australia had a "protection obligation" to Ali Al Jenabi under the United Nations Refugee Convention. Yet he remains detained at Villawood.
The department has since redrafted its decision, made an impossible demand for Iranian documents, and challenged whether international human rights obligations should override Australia's migration law in relation to character.
Mr Al Jenabi, an Iraqi asylum seeker who spent six years in Abu Ghraib prison after refusing to fight for Saddam Hussein, was described as an Oskar Schindler figure when he was on trial in Darwin for people smuggling.
He lodged a protection application on June 16 last year. By law, the minister is required to make a decision on such a visa within 90 days. Mr Al Jenabi has gained access to his departmental files by taking the Minister for Immigration to the Federal Court to force him to make that decision.
During the Darwin trial in 2003, Mr Al Jenabi told the court he became involved in people smuggling to get his mother and six other family members to Australia and that he assisted others, especially women and children who could not pay.
The Northern Territory Supreme Court accepted this was true, although he was found guilty of people smuggling and served four years in jail. His family have since been recognised as refugees and have permanent residency.
The departmental files, seen by the Herald, reveal a detailed 47-page decision record of Mr Al Jenabi's application, signed by his case officer, Kate Watson, on December 5 last year.
In the document she considered the character implications of his previous people-smuggling crime, and rejected it as a basis for refusing him a visa. "I find [he] committed a non-political crime outside Australia," she wrote.
Her decision distinguishes between people trafficking and people smuggling. "[Al Jenabi] was not involved in violence nor people trafficking, nor drugs nor property damage," it states. "He assisted people, especially his own countrymen, to willingly travel to Australia in order to access Australia's protection from the Saddam Hussein regime."
But Ms Watson's decision was incomplete. It required a departmental waiver of the criminal history clearance certificate from Iran, where Mr Al Jenabi stayed briefly after he fled Iraq. Iran does not issue clearances to people who were not legally resident.
In an undated file note after she submitted the decision, Ms Watson urges "it really needs to be finished soon as it has dragged on for weeks", noting that Mr Al Jenabi was in detention.
The department's Character Section was told in an email on December 19 last year "Iranians will not give a foreigner a penal cert [sic]. If they were not legal/registered there is no procedure to get around this so waiver only option". Character Section then asked Interpol in Canberra for the Iranian clearance. It responded by asking why this request was necessary.
Mr Al Jenabi's representatives say they were led to believe the decision was delayed because of ASIO clearances, but ASIO took no issue with Mr Al Jenabi.
In late January, the department got a new minister. Under Kevin Andrews, there was a renewed focus on character as grounds for rejecting applicants. Two weeks after he took the job, the department centralised visa cancellation and refusals on character grounds in Melbourne, where he is based. He would later use Section 501 character provisions to cancel the visa of Dr Mohammed Haneef, a decision overturned in the Federal Court.
Email correspondence after February within the department reveals two new hurdles in the Al Jenabi case. There was disagreement on how a protection visa applicant should be assessed and to what extent the character provisions of Section 501 of the Migration Act outweighed Australia's obligations under the refugee convention. There were also new allegations by the Australian Federal Police of possible criminal activity by Mr Al Jenabi in Australia, despite the fact he has been in jail or immigration detention since he arrived in 2003.
Responding to the redrafting of the Al Jenabi decision, a spokesman for the department said protection obligations was only one of a number of criteria for granting a protection visa. There was also health, security and character.
Today a new minister, Chris Evans, is sworn in. On December 14, in the Federal Court, Mr Al Jenabi will ask him to end his 18 months of uncertainty.
Smuggler or a Schindler?
Sydney Morning Herald
Supporters call him an Oskar Schindler for Iraqi refugees. The Howard Government calls him a people smuggler. Connie Levett reports.
HE REFUSED to fight for Saddam Hussein and spent six years in the notorious Abu Ghraib jail as a political prisoner. Once out, he went underground, working with a Kurdish unit in central Iraq, fled to Iran, then South-East Asia.
In the midst of this mayhem, his younger brother was one of many Shiite civilians executed by Saddam's men under cover of the US-led invasion, his body dumped in a well.
Through it all, Ali Al Jenabi's guiding principle in life has never changed: his family's welfare is paramount. It was with his help that his mother, three brothers, two sisters and an uncle managed to escape persecution in Iraq, then Iran and finally, to wash up, safely, on Australia's northern coast. All have been granted protection as refugees, as have hundreds of others he helped arrive.
But now, after more than three years in a Darwin jail and another 14 months in Villawood detention centre, Al Jenabi is fighting for his own protection - and for the opportunity to create a new life. The Immigration Department has spent 14 months wrestling with two, seemingly irreconcilable facts: that on one hand, he is unarguably in need of protection while on the other he is a confessed - if altruistic - people smuggler.
Speaking out for the first time, Al Jenabi does not deny he put hundreds of people on boats in 2000-01. He says an Indonesian middleman made him an offer: "The price is I help your family and you work for me. I don't [even] think about it."
"I have in my mind this Government makes me a monster, they don't want to give me a visa, make me a monster people smuggler," Al Jenabi said. "When I smuggled people I have a reason. I survive my people and my country. I get punished, I accept that, but now I am punished again."
Al Jenabi did not dream of going to Indonesia to make his fortune as a people smuggler. He dreamed of a safe haven in Australia - but then he missed the boat. It was December 1999, and the then 28-year-old was sitting on a beach in Indonesia waiting his turn to be ferried to a boat lying invisible off the coast in the dark.
"We wanted get to Australia before Christmas because we thought, in a Christian country, the Government would give us gifts," Al Jenabi said, as he served tea from a thermos at Villawood detention centre. In the Arab tradition, governments sometimes hand out gifts during religious festivals.
"Those who pay more can go first," called a man shepherding them onto the small transfer boat. Al Jenabi had paid $US900. He did not have money to spare. He had spent $US1450 of his borrowed $US1500 stash to get this far. "No problem, there's plenty of room," said the man. So he, and many others, waited. Hours later, they discovered the boat had gone and the man never returned.
They didn't make it to Darwin for Christmas. It was the last boat of the season, with seas then too rough to attempt a crossing.
The smuggler was an Iraqi working for an Indonesian, says Al Jenabi. They said they would keep their money until the next boat in four months' time. "We got our money back after some of us found the Iraqi guy and beat him up," he said, and the Indonesian big boss offered to pay for their hotel and food until the next boat could go.
Al Jenabi did not take the next boat. Instead he took the job that would save his family but now threatens to destroy his own future. Eight years later, he is fighting to stay in Australia, seeking recognition that he is a genuine refugee in need of protection. The Government has not said no, but 14 months after he applied, there is still no answer. By law, it is required to settle protection visa applications within 90 days.
"This was one of the most complex case we have on foot," said a spokeswoman for the Minister for Immigration yesterday. "The difficulties are around character, and that is why the department has been unable to meet the 90-day requirement."
For Al Jenabi, the decision to help the smuggler in return for safe passage for his family was easy. He did not think about breaking Australian laws, and in the next two years he would help to send at least nine boats of asylum seekers to Australia. His responsibilities grew and in 2001 he says he broke with the Indonesian and began working with another Iraqi.
Why did he do it? In 1999, his mother, uncle, three younger brothers and two younger sisters were stranded in Qom, Iran. Authorities were cracking down on refugees because Iraqi dissidents had staged anti-Saddam protests, forcing many out of the country. People were terrified they would be sent back to Iraq. Al Jenabi said the whole family lodged a refugee application in 1998 with the Australian high commission in Islamabad, Pakistan. It was received on July 14, 1999, according to court documents. The application, prepared in very poor English, was refused. By then, Al Jenabi was on his way to Indonesia, via Malaysia.
"When we were in Iran, friends called from Jakarta and said 'just come, it's a big opportunity but you have to move'. I borrowed $US1500 and money for a ticket to Kuala Lumpur. I had a fake passport with my real name," he said.
Al Jenabi, now 36, is a man who can do. At 13 he was working on the streets of Diwaniya, southern Iraq, selling Coca-Cola and illegal cigarettes to support his family.
At home, he ran interference for his mother and younger siblings, trying to shield them from their father, an army officer. He had gone crazy after two years of torture in Saddam's jails and came home to terrorise his family. He remains in Iraq.
When his own military call-up came in 1991, Al Jenabi refused to enlist and he was jailed as a political prisoner. On the outside, his 18-year-old brother Amad was killed by Saddam's men, his body dumped in a well, according to his mother, who found it seven days later. Al Jenabi said Saddam used the US-led invasion as an opportunity to kill Shiite civilians.
On his release in 1997, Al Jenabi says he worked in an intelligence-gathering Kurdish cell in central Iraq until his two Kurd partners were caught and executed. The men's families were suspicious that he had survived and told him to leave and never return. He went to Iran, where the extended family were already living.
In Indonesia, Al Jenabi kept his eyes on the main game. It took two years to get his whole family to Australia. His brother Khalid and uncle Karim travelled on a boat named the Stonyville, his mother, Fatah Said, his sisters Inas and Ahlam and brother Hashim were on the Outtrim, and another brother Basim was on his final vessel, the Bacala, in late 2001. All have been granted permanent protection in Australia. His sisters were recently accepted for citizenship.
After the Bacala sailed, Al Jenabi flew to Bangkok, planning, he says, to make his way to Australia and claim asylum. Federal police say he was on his way to recruit passengers. He was arrested on arrival in Thailand and was in jail for nine months. Extradited to Darwin on a criminal justice visa on February 22, 2003, he faced the Northern Territory Supreme Court on multiple counts of people smuggling. In a mid-trial deal, he agreed to plead guilty to two charges, of organising to bring a group of five or more people to Australia.
Justice Dean Mildren said he "accepted the prisoner was concerned to assist his family and he did what he could on occasions to assist others, who were unable to pay fully ... I accept also he did show special consideration for families with children".
Al Jenabi's barrister, Jon Tippett, QC, drew a comparison with Oskar Schindler, who saved many Jews from the gas chambers in World War II by employing them as slave labourers.
Justice Mildren said: "The prisoner ... was largely motivated by the need to get his family to Australia, come what may. Nevertheless, there was a money motive; that activity was how he lived and supported his family." He noted that Al Jenabi had not lived opulently in Indonesia, and there was no evidence of bank accounts in his name with large sums of money.
Dr Mohammed al Jibiri, the former head of Iraq's delegation to the United Nations human rights commission in the 1970s, was purged by Saddam and spent 15 years in jail or under house arrest before he was allowed to leave Iraq in 1993. He migrated to Australia and has worked with many Arab asylum seekers in mandatory detention.
"As an Iraqi who was persecuted, I don't think [Al Jenabi] was hungry for money or a gambler. He took charge to help these suffering people from Iraq and from the region," said Al Jibiri, who is helping Al Jenabi in his fight to stay.
"Wherever Ali went he found people in front of him waiting for someone to salvage them, to help them. He was too much attached to the scream of these people ... to their call for someone to come and save them and get to a safe haven."
A assessment of Al Jenabi in March this year by a Sydney psychologist, Paula Farrugia, backed this up. She found his identity revolved around "assuming responsibility and a commitment to the care and protection of others, most notably his family. Arguably, [his] personal history suggests that the care, protection, security and safety of those less able and more vulnerable than he, is highly likely, instinctual."
Al Jenabi received concurrent sentences of six years, three months and eight years, with a four-year non-parole. The sentence was backdated to his arrest in Bangkok on June 17, 2002.
He had no prior convictions and Justice Mildren said: "I doubt if he will offend again". On June 15 last year, the day before he was paroled, the Immigration Department cancelled his visa, ensuring he would be enter mandatory detention when released the next day. On June 16, Al Jenabi applied for a protection visa and a Bridging E visa, which would allow him to be released while his protection case was decided.
On July 7 last year, the then immigration minister, Amanda Vanstone, refused the bridging visa on character grounds. In a letter on August 6, she wrote "the seriousness of Mr Al Jenabi's crimes, the expectations of the Australian community and the possibility he might reoffend whist in the community" outweighed the desires of him and his family.
Al Jenabi's mother is torn between gratitude to Australia for the protection offered her family, and distress at the treatment it has dealt her eldest son who got them here."He don't want to hurt anybody, I lost two already, and don't want to lose another one," Fatah Said said through a translator at her Villawood home. She lost an infant child while briefly jailed in Iraq. "I am asking for support. Australia is very good, all the principles and standards of Islam are here, to have mercy, to open doors for us, every opportunity the Government is helping us."
Each day, Al Jenabi's sister Ahlam, 20, takes him a meal prepared by the family. "He is more like a father than a brother to me," said Ahlam. "You cry for animals, why are you putting my brother through this?"
Al Jenabi believes the Government's refusal to decide on the protection visa is political, because it does not want to admit that a convicted people smuggler could be a genuine refugee.
Sue Hoffman, a researcher at Murdoch University in Western Australia, said the Government had demonised people smugglers involved in the Middle East refugee exodus by tying them to organised crime. "There was no intent on the part of the Government or their sources to understand, no interest in why people were doing it," she said. She has interviewed 30 asylum seekers and read the testimony of a further 36 about their journeys to Australia and who helped them get here.
"The whole talk about people smuggling, calling it organised crime, conjures up in most people's minds the mafia imagery," she said.
"Research on European smuggling networks indicate it's much more a loose network of people with ethnic and family ties. The mafia-type set-up is incorrect, certainly for people involved in Middle East people smuggling."
Al Jenabi has spent a nearly third of his life in prisons in Iraq, Thailand and Australia. While in Indonesia he married and had a child. His wife has since divorced him. "My future I make it by myself. I stay here for my family, for my mum, I don't want the Government to make my future."
The last correspondence from the department, on August 8, asked him to provide reasons why his visa should not be refused on character grounds.
"The problem now is I don't see anything in front of me to fight," he said. "There is nothing, that's the problem, there is no answer." On Monday he begins a challenge in the Federal Magistrate's Court against the minister, claiming a breach of Migration Act for his refusal to make a decision within 90 days and for the resulting strain on his mental and physical health.
"You stay in here [Villawood] one year, I don't think any visa is worth it," Al Jenabi said. "Honestly, we are human beings, no sex, can't eat what you want, no job, animals are treated better than us. I saw on TV, they rescued two cats and bring them back together with their mum. C'mon, what about us?"
People smuggler takes bid to court
IRAQI asylum seeker Ali al-Jenabi, a former political prisoner under Saddam Hussein, has accused the Federal Government of playing politics, refusing to decide his case because they do not want to admit a convicted people smuggler could be a genuine refugee.
On Monday, he begins a challenge in the Federal Magistrates Court against the Immigration Minister, claiming a breach of the Migration Act for his refusal to make a decision within the statutory 90 days and for the resulting strain on his mental and physical health.
Mr al-Jenabi does not deny his past. He spent 3½ years in Darwin Jail for his crimes. But he argues his principal motive in smuggling people into Australia was humanitarian and he was driven by the need to find a haven for his family.
In sentencing Mr al-Jenabi in the Northern Territory Supreme Court in 2004, Justice Dean Mildren said he "accepted the prisoner was concerned to assist his family and he did what he could on occasions to assist others, who were unable to pay fully ... I accept also he did show special consideration for families with children."
Mr al-Jenabi's barrister, Jon Tippett, drew a comparison with Oskar Schindler, who saved many Jews from the gas chambers in World War II by employing them as slave labourers.
"The point is a valid one. There can be mixed motives, and I accept the prisoner ... was largely motivated by the need to get his family to Australia, come what may," Justice Mildren said. "Nevertheless, there was a money motive; that activity was how he lived and supported his family."
With Mr al-Jenabi's help, his mother, three brothers, two sisters and an uncle managed to escape persecution in Iraq, then Iran and finally reach Australia. All have been granted protection as refugees, as have hundreds of others he helped arrive.
Speaking out for the first time, Mr al-Jenabi says he became involved in people smuggling in 2000 by chance, after he was duped out of his own asylum-seeking voyage to Australia in December 1999. Out of money and with no way of protecting his family, who are still living as refugees in Iran, he jumped at an offer from an Indonesian middleman: for every boat he helped arrange he could send one family member.
The Immigration Department has spent 14 months wrestling with two seemingly irreconcilable facts: that Mr al-Jenabi is in need of protection but is also a self-confessed, if altruistic, people smuggler.
In 1998 Mr al-Jenabi's family lodged a refugee application with the Australian high commission in Islamabad, Pakistan. It was refused. By then, Mr al-Jenabi was on his way to Indonesia.
It took two years to get his whole family to Australia. After the last family member sailed, Mr al-Jenabi flew to Bangkok, where he was arrested on arrival and spent nine months in a Bangkok jail, before being extradited to Darwin on February 22, 2003.
Mr al-Jenabi received concurrent sentences of six years, three months and eight years, with a four-year non-parole period.
On his release on June 16, 2006, Mr al-Jenabi was taken into detention at Villawood, in Sydney's west. Then Immigration Minister Amanda Vanstone refused to release him while his protection claim was assessed. The current minister has not dealt with the case and after 14 months Mr al-Jenabi remains in detention limbo.
Smuggler wins right to hearing
Sydney Morning Herald
ALI AL JENABI, a convicted people smuggler who is seeking refugee protection in Australia, has won the right to have his case heard in the Federal Court.
Mr Al Jenabi took the Minister for Immigration, Kevin Andrews, to court yesterday for failing to make a decision on his protection visa within the statutory 90-day period and for threatening to use the Section 501 character provisions of the Migration Act to deny him the visa. He lodged his protection application in June 2006.
The Federal Magistrates Court has the power to assess decisions made by the Immigration Department. But no decision has been made in this case, and a solicitor for the minister sought to have the case dismissed by arguing that the court therefore had no jurisdiction.
However, Federal Magistrate Robert Cameron said it was a "matter of general importance" as to whether the applicant could seek protection and that the court needed to "mould justice to circumstance".
Mr Cameron said he was not persuaded "the applicant should not have a shot to get interim relief. I don't want to put procedural barriers in the way." He transferred the matter to the Federal Court.
Mr Al Jenabi, who agreed to be identified, served three and a half years in jail in Darwin after pleading guilty to two counts of people smuggling. During sentencing the judge acknowledged Mr Al Jenabi's primary goal had been to find a safe haven for his family, although he also made money from the operations.
AFP bid to block asylum evidence
THE Australian Federal Police has dramatically intervened to block controversial evidence in a Federal Court battle between a convicted people-smuggler and the Department of Immigration.
Ali al-Jenabi, an Iraqi asylum-seeker, has spent the past 12 months in the Villawood Immigration Detention Centre in Sydney, despite a recommendation by an Immigration officer that Australia had a "protection obligation" to him.
While full details of the evidence the AFP successfully sought to have ruled inadmissible yesterday are not known, it is understood to include a sworn affidavit by AFP Deputy Commissioner Tony Negus and a second document sent by the force to the Department of Immigration.
Counsel for the AFP Peter Singleton argued that all copies of documents should be either returned to the police or held by the court, while any legal notes made from the documents should be destroyed.
"(This evidence is) said to be questioning the role and the motives for the role of the AFP in the processing of the protection visa," Mr Singleton said.
The AFP had no such role and as a result, "the motives for is having a role that we did not have could not possibly be relevant", he said.
Sections of a second affidavit, sworn by Mr al-Jenabi's solicitor Stephen Blanks, were also ruled inadmissible after an application by AFP lawyers.
These sections are understood to refer to comments by Labor senator John Faulkner, published in the 2002 Senate Select Committee report on the sinking of the SIEV X, in which more than 350 people died.
Senator Faulkner is critical of the AFP's role in disrupting the departure of boats full of asylum-seekers and particularly of the alleged actions of a police informer, Kevin Ennis, who police have claimed was directly involved in people-smuggling.
Mr Ennis has subsequently denied that he was a people-smuggler.
Shane Price, counsel representing Mr al-Jenabi told the court there might have been some "ulterior motive" for the communication between the AFP and the Department of Immigration.
"The interaction of the Department of Immigration and the Australian Federal Police has in the past been a matter for concern," Mr Price said.
Mr al-Jenabi, who spent six years in the notorious Abu Ghraib prison after refusing to fight for Saddam Hussein, was convicted in Darwin in 2003 of people-smuggling and served four years in jail.
In June last year he lodged a protection application with the Department of Immigration, and in December 2006, a report by departmental officer Kate Watson said his conviction for people-smuggling was no reason for refusing to offer him protection.
Despite this, and while a decision on his application should legally have been made within 90 days, Mr al-Jenabi's case remains unresolved after 12 months.
The case, before judge Kevin Lindgren, was adjourned until next Wednesday.
Former minister slammed for visa failure
Sydney Morning Herald
A FEDERAL Court judge has found that the former immigration minister, Kevin Andrews, committed an "egregious failure" of Parliament by not making a decision on whether to grant a protection visa to an Iraqi asylum seeker and convicted people smuggler.
The asylum seeker, Ali Al Jenabi, took the previous minister to court last November to force a decision on his drawn-out application for a protection visa. The application was lodged in July 2006 when Mr Al Jenabi was being held in prison in Darwin. He was sent to the Villawood detention centre and has been held there since.
"Clearly there was an egregious failure by the minister to obey Parliament's command," Judge Kevin Lindgren said of Mr Andrews's failure to make a decision within 90 days of the application, as required under the act.
In a Federal Court hearing in Sydney yesterday, Judge Lindgren said he would issue an order of "mandamus" on January 30 that would compel the new Immigration Minister, Chris Evans, to decide once and for all whether to grant the protection order that would allow Mr Al Jenabi to remain in Australia with eight other relatives already granted residency after arriving as asylum seekers.
But Senator Evans will also have 90 days to reach a decision.
A supporter of Mr Al Jenabi, Ngarita Rossell, welcomed the ruling yesterday, saying that Mr Al Jenabi had already endured 19 months of incarceration at Villawood awaiting a decision on his fate.
"Before that he was imprisoned for four years in jail here for people smuggling, and also served one year in a Thai prison," Ms Russel said.
Lawyers for Mr Al Jenabi sought the order of mandamus, compelling the immigration minister to come to a decision, in complex legal argument about whether his criminal conviction outweighed his acknowledged need for protection from persecution.
Judge Lindgren also said he would award costs to the applicant from the Commonwealth.
In Conclusion: Condemn That Man!
No visa for people smuggler
Sydney Morning Herald
THE Iraqi asylum seeker and people smuggler Ali Al Jenabi has been refused refugee protection by the Minister for Immigration, Chris Evans, even though the minister acknowledged Australia had obligations to him under the United Nations Refugee Convention.
For 20 months, and through three ministers, Mr Al Jenabi has argued that his people smuggling conviction, which he said had a humanitarian basis, should not stop him seeking refuge in Australia after he served his jail time.
He had to take the then immigration minister, Kevin Andrews, to court to force the decision, which finally came yesterday.
"The Rudd Government deplores people smuggling. It is a heinous crime that puts lives at risk, undermines Australia's border security and weakens our immigration system," Senator Evans said. "For those reasons I have refused Mr Al Jenabi's application for a protection visa on character grounds. His conduct in repeatedly bringing boatloads of illegal immigrants into Australia, the expectations of the Australian community that a person who commits crimes of this nature not be rewarded with a visa, and the general deterrence factor in discouraging others from engaging in similar conduct weigh heavily against Mr Al Jenabi."
Instead, Senator Evans issued a removal-pending visa and released Mr Al Jenabi from Villawood detention centre until he is removed. It remains unclear when that will be, as the Government deems Iraq an unsafe place to return failed asylum seekers.
Mr Al Jenabi's solicitor, Stephen Blanks, said he was "perplexed by the same hateful jingoism that characterised the last government" in Senator Evans's statement. Mr Al Jenabi had said, and the Northern Territory Supreme Court's Justice Mildren accepted, that he was "largely motivated by the need to get his family to Australia, come what may".
'No asylum' for people smugglers
THE Rudd Government is sending a clear message that people smugglers will not be granted asylum in Australia by refusing a visa to an Iraqi man.
Ali Al Jenabi was convicted of people smuggling in 2004 and moved two years later to immigration detention at Villawood, where he has been appealing for a protection visa.
Immigration Minister Chris Evans has now rejected that visa on character grounds.
"He is a convicted people smuggler and I want to send a very strong signal that we won't be encouraging anyone to come to this country, serve their prison sentence and then be allowed to stay," Senator Evans told ABC radio.
However, Jenabi will not be sent home straight away as there are concerns about his safety back in Iraq.
Instead, he has been granted a removal pending visa so he will be sent home as soon as the situation in Iraq is deemed to be safe.
"It's been found that he has a reason for being fearful of being returned and I certainly don't want to undermine our obligations in that regard," the minister said.
As a condition of his visa, Jenabi will have to report to authorities regularly and Senator Evans said he has no serious concerns that he will flee.
But the new visa does leave the possibility open that Jenabi could remain in Australia for several years.
"That is possible, but the only other option is to leave him in detention without charge for that same period of time," Senator Evans said.
Refugee refusual echoes 'Tampa election' rhetoric
The Minister for Immigration and Citizenship, Senator Chris Evans (pictured) has refused a protection visa to an Iraqi because of his convictions for people smuggling, even though the Iraqi in question, 'Mr A', was assessed as a refugee by Immigration.
Mr A helped with people smuggling as a way of getting his family away form Saddam Hussein. He arranged for his mother, three sisters and three brothers to come to Australia.Mr A was extradited to Australia in 2003, convicted of people smuggling.
He applied for a protection visa in July 2006. The Migration Act requires decisions in protection visa cases be madewithin 90 days when possible, however in this case they delayed because of Mr A's conviction. It took an order from the Federal Court for the Minister to comply with the requirement. Minister Evans finally refused Mr A's application on 8 February 2008. Mr A was in detention the whole time.
The Minister had the option of exercising his discretion in favour of Mr A because Mr A met the refugee criteria but he declined to do so. Instead he reverted to the language of the 'Tampa election' of 2001:
"The Rudd Government deplores people smuggling. It is a heinous crime that puts lives at risk, undermines Australia's border security and weakens our immigration system ... [Mr A's] conduct in repeatedly bringing boatloads of illegal immigrants into Australia, the expectations of the Australian community that a person who commits crimes of this nature not be rewarded with a visa, and the general deterrence factor in discouraging others from engaging in similar conduct weigh heavily against Mr A"
The Minister's language and tone are all typical of the hostility found under the former government towards asylum seekers. The Minister did not mention that these people who were 'smuggled' in were asylum seekers, who were probably found to be refugees from Saddam or the Taliban -- regimes so bad our military were sent against them. Sadly the ALP supported the 2001 Tampa amendments and are yet to repeal the harsher aspects.
So what about the fact the Department accepted that Mr A was a refugee and that his conduct, while serious, should not prevent him from getting protection? It is not as if we can send him anywhere. UNHCR recommended against returning Iraqis as recently as December 2007. The 'surge' has reduced the violence in Baghdad, but Iraq is now just a very dangerous country, as distinct from an extremely dangerous one.
The day before the Minister's decision, the International Crisis Group published a report entitled 'Iraq's Civil War, the Sadrists and the Surge'. The report notes that the reduced killings in Baghdad could represent a temporary trend. Much depends on the motivations of key players such as the Shi'a Al Sadr and their mainly Sunni opponents. Any progress in Iraq is going to be very slow. Meanwhile Mr A must wait until the Australian government is able to send him back. It is likely he will be waiting a long time.
This case presented the new Minister with the chance of showing how this government is different to the last. He could have maintained his rhetoric, yet granted a temporary protection visa given the situation in Iraq. Such cases are rare and this would not set any precedent.
Sadly we instead have a return to the 'Ruddock rhetoric', which creates future problems for both Mr A and for the government. Such a decision does not bode well for immigration reform.