Dut­ton's de­part­ment ac­cused of us­ing 'rep­re­hen­si­ble' tac­tics to deny Iraqi Chris­tian's asy­lum claim

The Guardian Australia - - News - He­len David­son

Home af­fairs bu­reau­crats have been ac­cused of “fish­ing for an ex­cuse” to deny an Iraqi Chris­tian’s asy­lum claim af­ter los­ing a court bid to stop him on char­ac­ter grounds, in­ter­nal emails re­veal.

Ali Alk­haz­ali has been found by Aus­tralia to have a gen­uine refugee claim but the emails con­tain “strate­gic” re­quests to have his case re­opened to see if it would now be re­fused.

Alk­haz­ali, who has been in and out of de­ten­tion for six years, is wait­ing for the im­mi­gra­tion min­is­ter to make a dis­cre­tionary de­ci­sion on his case.

The de­part­ment had re­fused his visa on char­ac­ter grounds but that was over­turned by the ad­min­is­tra­tive ap­peals tri­bunal, prompt­ing the then im­mi­gra­tion min­is­ter, Peter Dut­ton, to ask it to be re­ferred to him for min­is­te­rial in­ter­ven­tion.

Emails span­ning April to June between var­i­ous home af­fairs bu­reau­crats, ob­tained by Guardian Aus­tralia, now ap­pear to show at­tempts to re­assess Ali’s orig­i­nal claim by say­ing it was “now aged”. The emails note if his claim was re­jected af­ter re­assess­ment the min­is­ter would not need to in­ter­vene.

George Newhouse, who is prin­ci­pal lawyer at the Na­tional Jus­tice Project, which rep­re­sents hun­dreds of asy­lum seek­ers and refugees, de­scribed the at­tempts as “un­war­ranted and a dis­grace”, and said the de­part­ment ap­peared to be “fish­ing for an ex­cuse to start the as­sess­ment process again”.

He told Guardian Aus­tralia the case was “in­dica­tive of a change in the gov­ern­ment pol­icy in the way they deal with refugees”.

“The de­part­ment is try­ing to use its own de­lay in pro­cess­ing this man’s claims against him in or­der to try and re­verse an ear­lier find­ing that he is a refugee,” he said. “It is rep­re­hen­si­ble for our gov­ern­ment to use its own dila­tory be­hav­iour in this way.”

Alk­haz­ali ar­rived in Aus­tralia by boat in 2012 and was sent to Nauru in Jan­uary 2013, where he was de­tained for two years, in­clud­ing nine months in the Nau­ruan prison. He had been con­victed in Nauru over of­fences re­lated to the ri­ots six months af­ter his ar­rival, and to an in­de­cent as­sault.

On re­turn to Aus­tralia he was in­vited to ap­ply for a tem­po­rary pro­tec­tion visa, four years af­ter first ar­riv­ing. He was found to have a well-founded fear of per­se­cu­tion and a valid claim based on his con­ver­sion to Chris­tian­ity and a lack of pro­tec­tion in Iraq.

“I fled my coun­try be­cause of a se­ri­ous threat of death from my fam­ily be­cause of my re­li­gious be­liefs and con­ver­sion to Chris­tian­ity,” Alk­haz­ali told Guardian Aus­tralia. “I be­lieve I have the right to choose what to be­lieve but, un­for­tu­nately, we do not have free­dom of re­li­gion back home in Iraq.”

De­spite the find­ing, Alk­haz­ali’s ap­pli­ca­tion was sent for char­ac­ter as­sess­ment to an in­ter­nal as­sess­ment body, the Na­tional Char­ac­ter Con­sid­er­a­tion Cen­tre (NCCC), which rec­om­mended the min­is­ter’s del­e­gates refuse his ap­pli­ca­tion, claim­ing there was a risk he would en­gage in crim­i­nal con­duct in Aus­tralia.

Alk­haz­ali ap­pealed the de­ci­sion and won, with the ad­min­is­tra­tive ap­peals tri­bunal di­rect­ing the de­part­ment to re­make it ac­cord­ing to the law. It noted the con­text to the riot-re­lated con­vic­tions and that the in­de­cent as­sault was at the lower end of of­fend­ing, and found there was “not a risk he would en­gage in crim­i­nal con­duct in Aus­tralia”.

Af­ter the suc­cess­ful ap­peal in July 2017, the home af­fairs min­is­ter, Peter Dut­ton, “in­di­cated he would like the case to be re­ferred to him for his per­sonal con­sid­er­a­tion un­der 501A”, a sec­tion of the Mi­gra­tion Act that al­lows for min­is­te­rial dis­cre­tion on visa ap­pli­ca­tions, the emails re­vealed.

In Septem­ber 2017 the NCCC sug­gested to the de­part­ment that Alk­haz­ali’s claim was “now aged” and re­quested it be re­assessed, and the next month Alk­haz­ali was for­mally told the de­part­ment in­tended to refuse his ap­pli­ca­tion.

In an April 2018 email the bu­reau­crat sought guid­ance ask­ing what to do about the NCCC’s re­quest. He said he had been told a re­assess­ment could only oc­cur if there had been rel­e­vant changes in coun­try or in­di­vid­ual cir­cum­stances, and was rec­om­mended to look at the coun­try.

He de­scribed the NCCC’s re­quest as “strate­gic” given coun­try in­for­ma­tion for Iraq had not changed.

“The is­sue be­fore me is that NCCC have re­quested re­assess­ment of the case for strate­gic pur­poses,” he wrote. “In that if the case is re­assessed and the ap­pli­cant is found not to en­gage Aus­tralia pro­tec­tion obli­ga­tions, then the s501A con­sid­er­a­tion will be with­drawn.”

The emails in­di­cated a draft sub­mis­sion – to as­sist the min­is­ter to ex­er­cise his 501A dis­cre­tion – was be­ing held back un­til they could de­ter­mine if Alk­haz­ali was still owed pro­tec­tion.

By July, the emails sug­gested de­part­ment of­fi­cials had de­cided his claim was still valid and the sub­mis­sion had gone to the min­is­ter, where it sits now.

“The de­part­ment be­gan talk­ing about re-in­ter­view­ing me to start the en­tire process again,” Alk­haz­ali said. “When we spoke to the de­part­ment about this, they can­celled the in­ter­view. I don’t un­der­stand what’s hap­pen­ing.”

The de­part­ment said it did not com­ment on in­di­vid­ual cases but pro­tec­tion visas were given only if Aus­tralia’s obli­ga­tions were en­gaged and other cri­te­ria, in­clud­ing se­cu­rity and char­ac­ter re­quire­ment, were met.

“De­ci­sions by the ad­min­is­tra­tive ap­peals tri­bunal for re­con­sid­er­a­tion of a visa can­cel­la­tion or re­fusal are re­mit­ted to the de­part­ment for fur­ther con­sid­er­a­tion, and do not re­flect a fi­nal visa de­ci­sion,” it said.

Last week the fed­eral court held a direc­tions hear­ing af­ter Alk­haz­ali ap­plied to have it to or­der the min­is­ter to make a de­ci­sion one way or the other.

The next court ap­pear­ance is sched­uled for De­cem­ber.

“It’s been al­most six years since I ar­rived in Aus­tralia and al­most six years that I’ve been in de­ten­tion,” Alk­haz­ali said. “All I need from Aus­tralia is to give me life and to pro­tect me from death. I can­not go back home but I don’t know how much longer I will have to wait in de­ten­tion.”

Pho­to­graph: Joel Car­rett/AAP

George Newhouse, prin­ci­pal lawyer at the Na­tional Jus­tice Project, says the de­part­ment ap­pears to be ‘fish­ing for an ex­cuse to start the as­sess­ment process again’ for Ali Alk­haz­ali’s claim for asy­lum.

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