Marion Lê: Advancing the asylum-seeker cause

There is nothing pragmatic about a politically motivated decision that makes processing offshore something legitimate, outside of the legal jurisdiction governed by Australia itself. I've been to Nauru - twice. The Minister herself gave me jurisdiction to go to Nauru.

Marion Lê OAM is a migration agent and advocate for many who have claimed asylum while remaining in detention.

On Tuesday 5 October 2004, Marion Lê addressed The Sydney Institute. In her view, in spite of Minister John Howard saying, "We will decide who comes this country and the means by which they come", that is not what actually happens.

The most dynamic person I've met recently, in the area of immigration is, in fact, Amanda Vanstone. The first time I met her at Parliament House, she was direct in her approach and in a very down to earth manner opened the conversation in words to the effect of "You know, first of all we should establish that I don't really care what people think of me, and I gather you don't really care what they think of you, so we can start on that basis."

I thought she was telling me clearly that she had no favourites and did not need people to pay her lip-service. Then she said, "And I suppose they haven't even given you a cup of tea yet, have they?" "They" hadn't, so she said, "Well let's fix that. Let's get some tea or coffee, which would you like?" And I said "I'll have coffee thanks."

My first meeting with the then new Minister was on 1 March 2004 although the relationship had started with her recognition in December 2003 of my representations on behalf of the Afghan asylum seekers on Nauru. This public recognition gained me entry twice to Nauru - the only legal representative from Australia for the asylum seekers ever to go there.

Pragmatism is defined by the Macquarie Dictionary as "character or conduct, which emphasises practical values or attention to facts". I saw pragmatism in action in the response of the Minister to representations from the United Nations High Commission for Refugees (UNHCR) and my office, to re-open the Afghan cases in the light of new evidence provided in late 2003 to the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA).

I like a pragmatic approach to things and if I had a wish list for this latest Howard Government, it would be that pragmatism in immigration continues. My wish list comes down to the mantra that John Howard used in the last election. You will remember that he kept saying, "We will decide who comes to this country and the means by which they come."

I listened and I thought, "But they don't really. Who does he mean by "we"? What really does John Howard know about how people are coming into this country? Who actually makes the decisions and on what basis? How accurate is the information they use?

This paper is designed to give some insight into four areas pivotal to this notion of the Prime Minister's that "we decide who's coming and the means by which they come."

• 1. The section 417 (s417) process - or Ministerial Intervention

• 2. The anonymous dob-ins - (a DIMIA term).

• 3. The issue of false travel documents, not the ones that are used by people to come here, but, more importantly, the ones that are used by the Government to remove people.

• 4. The so-called Pacific Solution. As I have already said, I am the only person to have been allowed to go to Nauru in any kind of independent legal capacity, with the blessing of the current Minister, Senator Vanstone.

So there are the four things: the business of the section 417, or the Ministerial Interventions, the dob-ins, the false travel documents and the Pacific Solution.

Ministerial Intervention

The inquiry into Ministerial Discretion in Migration Matters was established on 19 June, 2003 following allegations raised in Parliament in May and June 2003 about the use of Minister Philip Ruddock's discretionary powers going back to 1998.[1] The Opposition Labor Party accused the former Minister, Philip Ruddock, of being corrupt, of accepting, basically, donations from people in the community in order to have interventions made in relation to cases that people put to him.

The allegations involved, amongst others, Mr Karim Kirswani, a prominent member of the Lebanese Maronite community who was central to the so-called "cash-for-visas"[2] scandal. Kisrwani was initially said to have had the greatest number of Ministerial interventions. After a while they revised that and said, "No, no, no, it's Marion Lê." Now, no one could accuse me of ever having enough cash to bribe anyone, that's the first thing. The second thing was that this was total confusion because the Labor Party, or individuals like Nick Bolkus,[3] for instance, would know that I know where the bodies are buried. Over many years, there have been deals, what I call deals, done behind the scenes to get a migration outcome in the best interests not only of the people but of whichever political party is in power.

In any event, I didn't volunteer to appear before the Senate Inquiry. I think the Democrats put my hand up for a go and then I received a written invitation from the Senate to ask me to appear. One of the interesting things was that, in the Report, I am referred to as being someone who has worked for many years with the Department and the government in this area with no caveat that it was only with one party or another - it was clearly immaterial to my work which party was in government.

Yet, according to the Report:

"The most scathing criticisms of departmental processes were provided by Ms Marion Le, a human rights advocate and migration agent who has worked closely with the Department and represented people to Ministers over a 25-year period."

The Report goes on to quote me as saying:

"One of the biggest problems is that the department does not always send on submissions that are put to them, and we as the practitioners or the people bringing the submissions do not know when the Department has passed on our submissions and when they have not. So we never know whether the Minister is receiving them."

I was also reported to have said:

"The whole situation is really messy. I would not like to say that it is working well; it is not working well. It is messy, time-consuming and stressful. Those who are doing it do not know what the outcome is. - as I said, the submission heads off into the abyss."[4]

The abyss is the Department.

One of the big issues here is that the people who really make the decisions, at the base line, are not "we" the government or "we" Philip Ruddock, it's "we" the Department, the people in the Ministerial Intervention Unit. Often, the person making the decision as to whether or not the Minister is going to even see a particular case is going to be the same person who originally rejected the person.

For example, I had one case (and I raised this at the Committee hearings) where the person was rejected by the Department, went to the Refugee Review Tribunal (RRT) and the RRT Member said, words to the effect that: "Look, because the Minister has enacted legislation to forbid us to consider this type of case as a refugee claim, I cannot give this person a protection visa, but what I can do is recommend that the Minister looks at this very carefully, because this man is certainly going to be shot, killed, when he goes back to his home country. I cannot find that he's a refugee under the Convention as we have amended it in Parliament but I do recommend this to the Minister for intervention."

Now Philip Ruddock was very firm in his instructions to the Department that if the Migration Review Tribunal (MRT), or the RRT, recommended someone to him for his Ministerial discretion, then he expected that the case would be on his desk within a few days.

This case, in fact, went back to the Department and they handed it back to the first decision maker. When I got to know of it, from a Freedom of Information search, it was disgraceful. The departmental officer had said to himself, "I'm not going to admit I've made a mistake." So he started immediately writing all the reasons why it shouldn't go to the Minister for ministerial discretion. In the meantime, though, a lawyer decided to appeal. It went to the Federal Court and the Federal Court Judge concluded that he couldn't find any error in law but agreed with the Tribunal that this man would die so the judge recommended that the case went back to the Minister.

But did it go to the Minister? Not without my intervention!

I was contacted sometime around Christmas Eve. The brother, who's living in Adelaide, rang me and said, "Could you take this case?" I was not keen but in the end, after reading the decision, I agreed to assist.

I submitted a request for Ministerial intervention but it was knocked back. Then I got the paperwork under FOI and I was furious when I saw that the case officers had completely ignored the comments by both the Tribunal and Federal Court as to their humanitarian and public interest concerns. And of course, they had ignored my submission as well.

I went to Philip Ruddock and I said to him, "You need to have a look at this," (in front of his minders), "because this is a case that very clearly fits into your guidelines." I knew that he'd said that if any case was referred to him by a Tribunal then he expected to see it, and he hadn't. It was a total cover-up by the Department.

What the Minister then did, of course, was to intervene. And he intervened in such a way that he gave the applicant more than he would have received normally, probably as both compensation and as acknowledgement that he agreed totally with the Tribunal, the Court and me. The Minister gave the man a permanent visa allowing him to sponsor his wife and children, which is what he needed. If I hadn't taken that case, that Department would have totally ignored the recommendations, not only of the RRT but also of the Federal Court, and Philip Ruddock would never have known!

One of the things of interest in the Report surfaces very early, where we read that the Committee requested from the Minister, which means the Department, "detailed case file information"[5]

According to the Report:

"All the of Committee's requests for detailed case information were met with resistance, initially from DIMIA and ultimately from Senator Vanstone."

Their responses to these requests are summarised:

"At a public hearing on 23 September 2003, the Committee asked DIMIA to provide case files where Mr Kisrwani and Ms Marion Lê had made representations. On 31 October 2003, DIMIA wrote to the Committee advising that the request raised significant workload implications for the department and that it would take an estimated 120 person days to prepare the files for the Committee's perusal."

The Committee refined its request to encompass only "...17 cases in respect of which Mr Kisrwani had made representations".

Despite an assertion on two days by Ms Philippa Godwin, a DIMIA deputy secretary, that the DIMIA would provide the answers that the Committee was seeking, those answers never eventuated.[6]

The Report made interesting reading particularly because, until the Report was published, I didn't even know they were wanting to look at my files. I would have been more than happy to have provided my files so that the Committee could see what was going on.

The case against Philip Ruddock actually amounted to the fact that he was willing to take on board requests from people in the community who approached him.

I was questioned at length about that, "Do you think this is right? Do you think that if you've got the ability to approach a Minister that you should be able to do that?" And I said, "Why not? That's how a democracy works. People should be approaching their Minister, or their local member. They should be approaching the Minister, if they can, and if they can't, then they need to find someone like Gerard or Anne Henderson, or me, or someone who's there, with the expertise, with the reputation that these Ministers, these people whom we've voted into Parliament, can actually say, "Okay I will take on board that this person has a legitimate concern" and look at the case again.

I could tell you about file after file where I had real concerns about who is making the decisions. Numbers of us who criticised the policy of the Department, the policy of the government, again said that Philip Ruddock was assiduous in what he was doing, in the work that he did. When files were put to him by his department or by community people, he did look at them, more than any other Minister I know. He was only joking but he once said, "It's lucky that they've [DIMIA] got you and me" and I responded no, that it was really bad because if the system has to rely on us then it's no good at all and needs total revision.

So my wish list for this term of the Liberal government would be that there is a total revision of the way cases are processed and that the current Minister takes a very serious look at the recommendations of the Senate Committee.

In particular, there is a real need for someone to look at who is making decisions about what to pass on to the Minister.

The question of "dob-ins"

Dob-ins are becoming more and more common and generally occur generally by letter or telephone call to the DIMIA when anonymous persons secretly contribute something adverse to an individual applicant's file.

Let me give you an example from perhaps the most infamous of all asylum seeker cases who has been the victim of a dob-in - Ali Bakhtiari.

Poor Ali Bakhtiari was dobbed in. He was dobbed in, along with another person who became my client. The men were said to be brothers, Pakistani citizens rather than Afghani, guilty of giving false details of their families and nationalities to the DIMIA. I went all the way to the Afghanistan to prove that my client was who he said he was and I proved it. We have not, however, yet been able to find the identity of the dob-in. It's very complicated so just take it from me.

Dob-ins generally have nothing to do with terrorism but are often based on gossip - asylum seekers married to someone or not married to someone - very trivial stuff in fact, but untested and unrevealed can lead to people being detained and removed from Australia.

With the Afghani case-load, the DIMIA put a lot of faith in the now largely discredited language tests and dob-ins which led to many genuine Afghani asylum seekers being detained on suspicion of being Pakistani for four years before eventually being released on temporary three year protection visas (TPVs).[7]

Documents on one DIMIA file indicate that a number of unnamed informants have told the Department that the applicant is lying about his identity. While some informants, however, had apparently given similar information there were apparent inconsistencies. The Refugee Review Tribunal requested, from the DIMIA, details of the sources of these dob-ins but was advised that DIMIA is "under strict obligation to keep the identities of persons who are the sources in these circumstances completely confidential". Isn't that incredible?

There was another dob-in case of a young couple in Adelaide. Theirs is a very sad story. They fled to Australia from the Milosovic ethnic cleansing in 1999. They were terribly traumatised, came here and they are much loved by the local community who have supported them during the time they have had no work permits - over two years whilst they waited for an answer to their request for Ministerial intervention.

Someone dobbed them in. We didn't know this and we couldn't work out why Philip Ruddock would not intervene in this case. He kept saying to me, "I know you've put another letter in about that case but there's an allegation on the file". We put in another request for files under the Freedom of Information legislation (FOI). I've had a separate case on foot for the little girl in the family, so I decided to wait.

Then, back it came, an unanswered, unexplored dob-in, not a letter, but a file note recording that on a particular day a man who identified himself only by his first name and who left a mobile telephone number, walked into the office of the DIMIA in Sydney and said that Mrs A in South Australia (she's never been to Sydney) is living under a false name with her husband, and that a woman called Mrs B who is living with them is in reality her mother. Mrs B also had an application before the Tribunal. This information was passed to the Minister as fact. They were accused of very serious immigration fraud. They had, in other words, adopted false names, and were living with a woman who is supposed to be the mother of the wife who is also lying to the DIMIA and Tribunal.

These are very, very serious allegations which one would imagine would lead to immediate investigations being undertaken. Those allegations had been there for over two years. It has stopped those people accessing ministerial attention because the allegations went, as fact, to the Minister. If you saw the file note, you'd be horrified at such hearsay.

I rang my client and asked if she knew Mrs B? She thought for a few seconds and then said, "Oh wait a minute, about a year and a half ago she stayed with us for a couple of weeks because she had nowhere to go. She's a psychiatrist." It took my client two days to locate Mrs B and I spoke to her on the phone. I also spoke to the person with whom she now boards - a retired Correctional Services Officer who was absolutely furious at the accusations. Mrs B was able to substantiate her identity and proved the allegations to be totally untrue. But there has been no apology from the DIMIA and probably no retraction on advice to the Minister. Those dob-ins are deciding who's coming to this country. That's just one example and there are many others.

This couple and Mrs B were anonymously dobbed in and there was not a basis of truth to the dob-ins. So when John Howard said, "We will decide who is coming here...", it's not so when we have dob-ins allowed to influence a person's right to stay. A man walked into the DIMIA office, didn't even give his full name, didn't give an address, gave a mobile number which they couldn't connect with later, and wrecked a family's life.

False travel documents

You all know that people often utilise false travel documents when they're fleeing war-torn countries because they can't get out any other way. Frequently they don't have any documents because of the haste in which they flee. When I was growing up we all thought people were heroes if they had escaped Nazi Germany or emerged from behind what was then called the Iron Curtain by sneaking across borders, clambering across the Berlin Wall or swimming from China to Hong Kong, to finally get to freedom.

Now I'm not for one moment condoning the current people-smuggling operations because they are unscrupulously conceived and lead to people's deaths. But many people do come on false documents and there's no crime in that if they're legitimately fleeing persecution. That's the only way they can get out.

The real problem that goes unnoticed, the real crime, is that we pass off or send people overseas to countries, where they can no longer get admission, on false travel documents. Having decided who is NOT staying in this country we then decide to remove the unwanted by deporting them. The Edmund Rice Centre for Justice and Community Education, in cooperation with the School of Education, Australian Catholic University, conducted a study of Australia's treatment of forty rejected asylum seekers and their published report, "Deported to Danger", gives a fascinating and chilling insight into what has happened to some of Australia's deportees.

In 2002, the Edmund Rice Centre decided to seek out deported asylum seekers and interview them overseas. A disquieting interim report was published and given to the Minster through DIMIA and to the UNHCR in October 2003. The final document was published in 2004 and should be compulsory reading for anyone interested in Australia's border control policies. Of course, the Department initially denied much of the report - particularly DIMIA denied issuing false documents and misleading detainees as to where they were being sent.

In quite a public spate, I produced my files and letters I had written to the Minister and DIMIA, almost word for word documenting what had been said to me at this end from the people in Port Hedland when they were told "We can give you false travel documents that will allow you to get into Syria" and actually issued them to a group of Kuwaiti Bedoons who were then removed from Australia.

The Edmund Rice Centre researchers have included in their Report photos of some passports and documents that were provided to these people. The Minister can deny it but the Department knows they issue them and in one of my cases when the matter went to Court, the fact was admitted in evidence. DIMIA obtain travel documents that are said to be Australian travel documents. They look like passports but they are valid only for leaving Australia and have no validity for further travel.

A telling paragraph contained in the Report refers to "the material evidence of the apparent duplicity of some Australian officials" emerging in the stories of deportees.

"T2 said, I agreed to leave as I had a conversation with Mr X; he works with the Ministry of Immigration as a Manager of Departure. He said:

"If you can get a false passport from a smuggler, I will take you to any country." He was given a ticket purchased by DIMIA to travel from Sydney to Kuwait with a seven day "stop over" in Damascus. No entry documents were available for Kuwait and T2 alleges that he was told to enter Syria on the short visitors' visa and then continue to live there illegally.[8]

In the case I took to Court, when that evidence was produced to that particular departmental officer, he did not deny the conversation, which had occurred also with my client but said it was a joke. I don't think so! My client, part of the group in Port Hedland who was party to this advice, refused to trust the DIMIA and is still in Australia, released on a bridging visa and willing to give evidence at any time of the truth of the evidence quoted above from the Report. I can tell you time and again about the stateless people who are being forced to apply for these travel documents and then are being whisked away to detention or constantly being threatened with deportation.

My wish-list for this government contains a plea that we sort out the problems of stateless people so that Australia does not have to demean itself in the international scene by providing people with documents that are false, misleading at the very least, but that are just a total shame on our country.

The other alternative, in law endorsed by the High Court, is that stateless people can be detained for the term of their natural lives in our remote desert or island detention centres. This is clearly an unthinkable abomination. We must bite the bullet and say to stateless people, "Look we'll give you a haven; we'll let you stay here."

The Pacific Solution, so called

There is nothing pragmatic about a politically motivated decision that makes processing offshore something legitimate, outside of the legal jurisdiction governed by Australia itself. I've been to Nauru - twice. The Minister herself gave me jurisdiction to go to Nauru. I always know when the Department's got a problem to solve. They allow me in to do something so that it can be solved. It really is a game and as long as you know how to play it, and I've been playing for twenty-five years, you can solve it for the disenfranchised people, for the government of the day and for the taxpayer.

But I want to solve it on a bigger level. One hundred and forty nine Afghanis came to Australia from Nauru after the cases were reopened this year. Twenty-two others went to New Zealand - the last of the Tampa refugees processed by the UNHCR. In late September, the Department asked me to go to Nauru to try to solve the problem of the Iraqis. I was given three days notice and told, "You can go." I said I had cases scheduled with DIMIA interviewers in Launceston. The Department immediately arranged with the Victorian office to put off my interviews in Launceston. Then I asked "Are you going to fund me?" Long silence. And then, "Well, Marion, you know that we don't actually do that."

I told them I had no funding, that everyone was tied up with elections, nobody was really providing any monetary assistance to the Iraqis and family members here wanted guarantees, which of course I couldn't give, that if they provided funding their relative would enter Australia.

By funding I just mean, seriously, the airfares. So those Iraqi re-interviews went ahead without any direct legal representation though I was able to be part of a telephone link in one case and we had some limited input through my office.[9]

Amanda Vanstone is pragmatic enough to know that it's gone far enough. If you're looking at the Pacific Solution, it's not a solution obviously. There's a joke in my office. We say we are the Pacific Solution. If you come into my house, my lounge and dining room has been changed into a storage area for the files of clients. The Nauru files are there, the Baxter files are there. I would have the biggest collection of immigration files of anyone in Australia and I've already given a huge van-full and half a truckload to the National Library, of all my Vietnamese and Cambodian files over the years.

Pragmatically speaking, in conclusion, I would like to see these four areas of concern addressed by the new government. In relation to the ministerial intervention process, let us make sure that it is based on truth. We need to tidy up the process, make it more open and more accountable. With dob-ins, a lot of people do not know when they're being accused. We've asked if we're allowed to see accusations but generally our requests are denied and the accusations stand untested. It's just unbelievable. It couldn't happen in the real world that you're not allowed to face your accuser or answer in person. This needs to change.

The government, and in particular the present Attorney-General, Philip Ruddock, expresses concern, rightly, about the travel documents, or lack of them, of people coming here but then we issue misleading documents to people we deport to countries where they are not secure and are often in danger. Believe me, it's happening and by keeping silent we give this practice our support.

And then of course there's the Pacific Solution. The Afghans and Iraqis who remain on Nauru need to be assisted to come to Australia -- there will be no Pacific Solution until Nauru is closed and those Afghanis wrongly accused of being from Pakistan are given justice. When two young men, minors when they arrived, teachers of all the children now forging ahead in our Australian classrooms, are granted the justice they deserve and granted visas, when the last family with children, when the Kurds and single Iraquis who are not judged security risks to Australia finally set foot here, then we can trumpet a Pacific solution.

Australia is a great country - I acknowledge with pride New Zealand as my place of birth but I am proud to live here. Let us work together to find pragmatic and just solutions in the areas I have addressed.

Endnotes