CHAIR —I welcome officials from the Department of Foreign Affairs and Trade.

Ms Morton —I am the First Assistant Secretary, North Asia Division, in the Department of Foreign Affairs and Trade. I will ask Mr Jeff Robinson, who is the Assistant Secretary, East Asia branch, and Mr Simeon Gilding, who is the Assistant Secretary of the consular branch, to make short opening statements. Mr Robinson will talk about the application of Chen Yonglin for territorial asylum, and Mr Simeon Gilding will talk about DFAT’s knowledge of the deportation of Ms Vivian Alvarez Solon.

Mr Robinson —Thank you very much for the opportunity to appear before this inquiry and to provide evidence concerning the request by Mr Chen Yonglin for asylum and the subsequent decision to grant him a protection visa. You have already heard evidence from the Department of Immigration and Multicultural and Indigenous Affairs and other agencies concerning Mr Chen’s case. For our part, DFAT first became aware of this matter when it received from DIMIA a copy of Mr Chen’s letter addressed to the DIMIA New South Wales office seeking political asylum. We received this letter by fax from DIMIA on the afternoon of Thursday, 26 May. This letter was brought to the attention of Mr Downer’s office later that evening. On the morning of 27 May there was an interdepartmental meeting that considered Mr Chen’s letter as a request for an instrument—

—Can I intrude on this, if you will forgive me. At what time on that evening did Mr Downer’s office become aware of Mr Chen’s letter?

Mr Robinson —I am not sure exactly, but I recall it was about 7 pm.

Senator BROWN —Thank you.

Mr Robinson —As I was saying, there was an interdepartmental meeting that considered Mr Chen’s letter as a request for an instrument to allow him to apply to DIMIA for a territorial asylum visa. Mr Downer advised the department that he would not sign an instrument to allow Mr Chen to apply to DIMIA for a territorial asylum visa. Mr Downer said that if Mr Chen wished to stay in Australia he could apply for another sort of visa and that it was appropriate that Mr Chen’s claim for such a visa should be considered by DIMIA on its merits as part of a normal process.

I understand that you have heard from DIMIA that the minister’s decision on territorial asylum was conveyed to Mr Chen on the evening of Friday, 27 May. In response to a letter from Mr Chen’s legal adviser, Mr Mark Green from Refugee Advice and Casework Service Inc., Mr Downer replied on 14 June that Mr Chen’s letter to DIMIA dated 25 May was taken as constituting a request for an instrument granting him territorial asylum, as this was the necessary precursor to Mr Chen making a valid application for a territorial asylum subclass 800 visa. Mr Downer wrote to Mr Green that, having considered Mr Chen’s request, he had decided on 27 May not to grant an instrument. Mr Chen was therefore not able to make a valid application to DIMIA for a territorial asylum visa. The letter noted that Mr Chen was advised of this decision by DIMIA later on 27 May. Mr Chen was advised at the same time that if he wished to stay in Australia there were a range of visa options he could pursue, including a protection visa. On the evening of Friday, 27 May—

—Could I just interrupt once again to get the timing right here? Mr Downer’s office was made aware at about 7 pm on 26 May of Mr Chen’s letter requesting asylum—

Mr Robinson —That is right.

Senator BROWN —and there was an interdepartmental meeting on the morning of the 27th. What time was that meeting?

Mr Robinson —I am sorry, I was not there. I do not know.

Senator BROWN —But Mr Downer, you say, had indicated in the letter that he had decided on the 27th not to grant a visa.

Mr Robinson —That is right.

Senator BROWN —Do you know what time that decision was made, or at what time that letter went out?

Mr Robinson —No, I am sorry. I do not.

CHAIR —Mr Robinson, do you know who would have been advised by the minister’s office that the application had been refused by the minister?

Mr Robinson —Sorry—who was advised?

CHAIR —Who was told by the minister’s office that he was not going to get the visa or asylum?

Mr Robinson —My understanding is that the advice came from the minister’s office through to Ms Morton on 27 May.

CHAIR —So Ms Morton knows what time that was. What time was that, Ms Morton?

Ms Morton —What time the decision was made?

CHAIR —Yes, I think that is what Senator Brown was asking.

Senator BROWN —Or what time you were made aware of the decision.

Ms Morton —There was a process of decision making that started at the time when the minister became aware of the application or of the request and went through until the time that it was decided that Mr Chen should be informed that his request would not be granted. That was a process which ranged across the evening of 26 May to the afternoon of 27 May.

Senator BROWN —What time were you aware that Mr Downer had turned down the request?

Ms Morton —I am sorry, Senator. I do not have a precise time. I cannot recall exactly what time.

Senator BROWN —Can you tell us approximately what time you knew about that?

Ms Morton —I had a communication with Mr Downer on the morning of Friday the 27th.

Senator BROWN —About when?

Ms Morton —During normal working hours, so sometime in the morning.

Senator BROWN —Did you go to that interdepartmental meeting?

Ms Morton —Yes, I did.

Senator BROWN —What time did that start?

Ms Morton —I believe it was mid-morning, about 10.30 or 11.00.

Senator BROWN —Was that meeting told of Mr Downer’s decision?

Ms Morton —That was a process in reaching a conclusion.

Senator BROWN —But was the meeting informed that Mr Downer had turned down the request from Mr Chen?

Ms Morton —This is a process of decision-making.

Senator BROWN —Not by Mr Downer. Once he makes a decision, it is made. The question is to whom it was communicated.

Ms Morton —Mr Downer’s views were certainly communicated to the meeting.

Senator BROWN —It is the minister that makes that decision, is it not?

Ms Morton —I think we have heard from DIMIA that it is a minister who makes the decision.

Senator BROWN —Was there any other minister involved in that decision that you are aware of?

Ms Morton —I am not aware of that.

Senator BROWN —So Mr Downer, in the absence of another minister, was the minister, and his decision was communicated, I presume, to that meeting. Can you confirm or deny this?

Ms Morton —Mr Downer’s view was conveyed to the meeting.

Senator BROWN —Did you know about Mr Downer’s decision before the meeting?

Ms Morton —I knew of Mr Downer’s view before the meeting.

Senator BROWN —So somewhere before half-past 10 Mr Downer, who we are told decided on that morning not to grant the visa, had made that decision.

Ms Morton —Mr Downer had reached a view at some point during that process, yes.

Senator KIRK —Who was present at the meeting? You said you were. Was there a representative from Mr Downer’s office?

Ms Morton —No.

Senator KIRK —Who was there to convey the view of Mr Downer at the meeting, then—you?

Ms Morton —I was there, plus the international organisations and legal division, DIMIA and other relevant agencies.

Senator KIRK —So how many people were present?

Ms Morton —I am sorry; I do not have that figure in my head.

Senator KIRK —Who was it that conveyed the view of Mr Downer to the meeting?

Ms Morton —I did.

Senator BARTLETT —Have you got more of your chronology to go through?

Mr Robinson —There is not a huge amount, but I still have some more to go.

Senator BARTLETT —I would rather finish all that, if people do not mind.

Mr Robinson —On the evening of Friday, 27 May, the Chinese consulate-general in Sydney, Mr Zhou Yujiang, telephoned the DFAT office in Sydney to advise of their concern that Mr Chen and his family had disappeared and had not been seen or heard from since the day before and to express concern for Mr Chen and his family’s welfare. Our Sydney office advised Mr Zhou on that Friday evening that if he was concerned for Mr Chen’s safety he should phone the police or local hospitals. Mr Zhou asked our officer if she would call the police and hospitals for him, to which she replied that the consulate-general should do this in the first instance. This is normal procedure in such cases. Mr Zhou was advised that if he had any further concerns he should telephone the officer again over the weekend. If not, she suggested that they speak again the following Monday.

On Monday, 30 May at about 10.30, Mr Zhou telephoned the officer in our Sydney office again. He advised that Chen was not in hospital and had not reported for work and asked for advice about what to do next. Our officer in Sydney declined to provide any further information and suggested he call DFAT’s protocol branch in Canberra. Our protocol branch had earlier told the Sydney office that any matters relating to Mr Chen should be referred to protocol and that no information concerning him was to be discussed with anybody else.

DFAT’s Protocol Branch later that same day returned a call from the Chinese consulate-general. The consulate advised that they had subsequently found a letter left by Mr Chen in his apartment. According to Mr Zhou, Mr Chen had written that he was not very satisfied with his job and was not going back to China. Mr Chou said that, on the basis Mr Chen’s letter, it was clear to the consulate that Mr Chen did not intend to return to his job at the consulate, but the consulate no longer held concerns for the physical welfare of Mr Chen and his family. Protocol noted the information provided by the consulate but declined to provide any further information about Mr Chen.

A meeting was held between DIMIA and Mr Chen in Sydney on Tuesday, 31 May, which I understand you have already heard about. An officer from DFAT Protocol Branch attended this meeting to outline to Mr Chen the normal processes on the completion of an officer’s posting. As I noted earlier, Mr Chen was advised of the various options available to him and to consider them carefully—these are the visa options. He was told that there was no guarantee that he would receive a protection visa. Mr Chen was adamant that he would seek a protection visa and was not interested in any other option. So relevant forms were provided to him at that meeting.

In the normal course of Protocol’s work, there was further contact between Protocol Branch and the Chinese consulate-general on Wednesday, 1 June. Protocol reassured the consulate-general about Mr Chen’s physical welfare, but no other information concerning him was provided to the consulate-general, including his intentions regarding applying for any visa to stay in Australia. Later that same day—1 June—an officer from the Chinese embassy in Canberra called on Protocol to inquire about Mr Chen’s case. Protocol confirmed that there had been contact with Mr Chen but declined to provide any information about him, including in regard to his intentions or whereabouts.

The next day—Thursday, 2 June—Chinese Ambassador Fu Ying approach Mr Downer following a formal meeting in his office with a senior Chinese visitor and asked to speak to Mr Downer about Mr Chen. Mr Downer is already on the public record concerning this meeting. He said that at no time did he or any other DFAT official improperly convey information about Mr Chen. The next day, on Friday, 3 June, Mr Chen lodged an application for a protection visa for both himself and his family. Later that same evening Mr Chen spoke to the media about his application.

On 14 June the department received a formal note from the Chinese consulate-general advising it of the cancellation of the diplomatic passports of Mr Chen and his family. DFAT Protocol advised DIMIA that the Chen family’s diplomatic visas should be cancelled subject to the granting of bridging visas coming into effect at the same time. As all the members of the committee here are aware, Mr Chen was granted a protection visa on 8 July. His application was decided on its merits, as a priority, we understand, by DIMIA officers according to criteria set down in Australian legislation. Thank you very much. That is the end of my opening statement. We, of course, would be pleased to take any further questions.

Senator BROWN —I just want one clarification.

CHAIR —Before you go on, Senator Brown, what is the name of the DFAT officer—who was, I gather, a senior officer—who was at the meeting on 31 May?

Ms Morton —From Protocol Branch?

CHAIR —Yes.

Ms Morton —That was Ms Anne Plunkett, who is the director of protocol.

CHAIR —You had some questions, Senator Brown.

Ms Morton —Sorry, we have—

CHAIR —I am not sure that we will have an opportunity to get to Mr Gilding this evening. I am afraid that, due to the time constraints, we would just like to deal with the Mr Chen issue at this stage.

Senator BROWN —I want to go to that meeting at which Ms Plunkett first met with Mr Chen. I am informed that there were two DIMIA officers there as well. Can you elaborate on that meeting and what took place there?

Ms Morton —I have spoken to Ms Plunkett about that meeting and the account which Mr Chen gave of that meeting to the committee this afternoon. Ms Plunkett has explained that she was there because part of Protocol’s role is managing the operational aspects associated with diplomatic and consular corps officials arriving in and departing Australia. That is part of her usual job. To set the context of this, Mr Chen’s application, his request for the grant of political asylum, is a very unusual case.

Senator BROWN —Granted.

Ms Morton —It is not something that happens every day. We and Protocol were very concerned that Mr Chen understood what he was seeking and the fact that there were other avenues for him to apply to stay in Australia should that be his wish. There is a lot of use of the word ‘asylum’ in a lot of contexts. He had applied in his letter to be given an instrument to allow him to apply for territorial asylum. Ms Plunkett explained to him that this was not going to be given to him and at that interview there was a range of options presented to him in relation to his staying in Australia should he wish to do so.

Senator BROWN —Did the minister authorise those options being put to Mr Chen?

Ms Morton —Those options were under the Migration Act so they would not be the jurisdiction of the Minister for Foreign Affairs.

Senator BROWN —Yes, but they are being put by an officer of the department of foreign affairs, not by a department of immigration officer.

Ms Morton —No, they were put by an officer of Immigration.

Senator BROWN —According to Mr Chen, it was Ms Plunkett who returned to those options and pursued options, including the option of a tourist visa, with him.

Ms Morton —I do know and I can say that Ms Plunkett has said that during the interview she certainly did not make any statement that a protection visa was extremely impossible. She pointed out to Mr Chen that she could not guarantee that an application for a visa—for a protection visa or for any other visa—would be successful. She also pointed out, which we felt was the right thing to do, that under the legislation a protection visa can be refused on foreign policy grounds. That was pointed out to Mr Chen as a relevant matter that he should take into consideration.

Senator BROWN —Mr Chen, in a highly vulnerable situation as he was, was having it explained to him that the protection visa he was seeking might well not be granted, having had his application for asylum rebuffed and having had Ms Plunkett, during the meeting and after, suggesting he might contact the consulate and counselling him that the option was there for him to go back to the consulate as if he had been away for a few days, which happens from time to time with consular officials. Can you understand that he might have got the impression that he was facing a rebuff and was being pressured to return to the authority of the Chinese government?

Ms Morton —I think that Ms Plunkett’s advice to Mr Chen was very sensible advice. The advice was: the Australian government expect diplomats and consular officials to return to their country at the end of their posting; that is our expectation.

Senator BROWN —Even though they have applied for asylum in this country?

Ms Morton —This is a very unusual case.

Senator BROWN —Yes.

Ms Morton —It was explained to Mr Chen that this was unusual, that normally at the end of a posting a diplomatic or consular official would return to their country. If they wish to stay in Australia there were various options that they could pursue and these options were open to Mr Chen. Those options were explained to him by a DIMIA official who is conversant with the Migration Act and the various categories of visa available onshore in Australia or offshore. It was explained to him also by Ms Plunkett that his consulate had rung to inquire whether we had any information about him because he had not turned up for work. This is something that happens in the course of Protocol’s work. If a foreign mission has a concern about one of their officials—for example, if he has not turned up for work—they are in fact expected to advise the protocol area of the department. That is usual practice. This had happened in this case. There had been two phone calls about him. She passed this on to Mr Chen and said, ‘It would be better if you could contact your consulate and tell them that things are all right; you are not having a problem.’

Senator BROWN —I put it to you that Ms Plunkett was acting as if she was oblivious to this unusual circumstance—

Ms Morton —Not at all.

Senator BROWN —Just let me finish. She was acting as if Mr Chen had not made a dramatic request for asylum in this country: expressing his fear to officials that his life was in danger if he were not able to stay here and, having had that asylum request turned down, vigorously pursuing a protection visa. Is it not unseemly, even outrageous, under those circumstances, that a government officer should be suggesting to him that he go back under the authority of the Chinese government?

Ms Morton —I would suggest to you that, at that time, Mr Chen had not applied for a protection visa. He had absented himself from work on Thursday, 26 May, Friday, 27 May, Monday, 30 May and this occurred on 31 May. That is totally explicable in terms of his getting ready to leave. He was packing up his apartment. He was obviously having problems leaving Australia. He had left a letter for his government saying that he did not wish to return to China. It is perfectly explicable that he would contact his embassy and say: ‘I am not in any trouble. I am going through some process to stay in Australia.’ I do not find that at all reprehensible. I find it absolutely normal that this is what we would encourage a Chinese consular official to do: to stay in touch with his government and advise them that he and his family were fine. The Chinese government have responsibility for them as they had sent him to Australia as a consular official. They were responsible for his welfare overseas in Australia, in Sydney. I feel it is quite normal that we would encourage him to ring his consulate and say, ‘I’m not in any trouble; I’m fine.’

Senator BROWN —Even though the law states in this country and international law states that information about a person seeking asylum in circumstances where they feel under threat should not go back to the government which they apprehend is threatening them?

Ms Morton —No DFAT official provided any of that information to the Chinese government.

Senator BROWN —But they are suggesting to Mr Chen that he do that. Did they not understand the import of that law?

Senator KIRK —Had Ms Plunkett actually been briefed about this matter before she went into this meeting? Was she aware of the fact that there had been this request made for territorial asylum?

Ms Morton —She certainly was aware of that request, and she conveyed to Mr Chen the decision that his request for an instrument allowing him to apply for territorial asylum would not be granted. Yes, she was aware of that.

Senator KIRK —But he had already been made aware of that on 27 May.

Ms Morton —On the telephone, I believe, by DIMIA, yes. This was advice from DFAT.

Senator KIRK —So this officer going into this meeting is fully aware, from what you are telling us, of all of the claims that Mr Chen had made and the reasons why he was fearful of returning to his country. This is not a normal situation whereby a diplomat is coming to the end of their term and they are worried about packing up their apartment; this is quite a different scenario that Senator Brown is referring to. I would have thought that different standards and different issues would have been at the forefront of this officer’s mind.

Ms Morton —Ms Plunkett was aware, as was the department, that Mr Chen had written a letter seeking a grant of what he called ‘political asylum’. She was aware of the statements made in that letter.

Senator KIRK —Did she have a copy of the letter? Was she aware of the content? Did you speak to her about that?

Ms Morton —Yes, it was discussed with her.

Senator KIRK —So she was aware of Mr Chen’s fears of persecution should he return to China?

Ms Morton —She was aware of what was in his letter, yes.

Senator BROWN —I again ask: what was the input of the minister’s office to this process?

Ms Morton —I am not at liberty to talk about what might have been the input of the minister’s office.

Senator BROWN —So you cannot tell the committee whether the minister was authorising, or indeed was the architect of, what appears to be a process of trying to ‘cajole’—to use a soft word—Mr Chen to desist from seeking asylum in this country and to contact his embassy and go back to China?

Ms Morton —Mr Chen was advised to contact his consulate-general to reassure them of his welfare. That is not cajoling, nor is it suggesting that he should not apply for any visas. In fact, during the interview he was given an application form for a protection visa.

Senator BROWN —However, can you, or indeed Ms Plunkett, understand how remiss it must have appeared to Mr Chen—who was very fearful and was trying to get asylum in this country for himself, his wife and his six-year old daughter—to have an officer from the Department of Foreign Affairs and Trade on a number of occasions at a pivotal meeting like this inveigle him to contact the very consular officials that he knew would want him to go back to China?

Ms Morton —No, I do not think that it is remiss in any way. I believe that that is an entirely reasonable and appropriate response. He was a Chinese consular official who had expressed a desire to stay in Australia. He had expressed his preference for a certain kind of visa. He was told: ‘This visa will not be forthcoming. You will not be provided with the instrument to allow you to apply. Here are the options for your staying in Australia.’ Several of those options were options which he could pursue while maintaining a relationship, if he wished, with his government. This was something which we considered quite reasonable—to make this knowledge available to him. He did not have to go down the route that he had set out in his letter; there were other options.

Senator BROWN —I find this extraordinary. Did you hear, before you spoke with Ms Plunkett today, Mr Chen’s side—that he left the foyer of the DIMIA office when he realised that a person there had phoned the consulate in Sydney, because it was less than 10 minutes away and he feared for his safety; that Chinese officers would physically approach him? He was threatened by the prospect of not being able to secure his stay in Australia. Did you, Ms Plunkett or the office not understand that this man was making a bid for political asylum in this country and felt very threatened indeed by what the Chinese government could do, including potentially abducting him or members of his family back to China?

Ms Morton —I have heard the testimony of Mr Chen. At the meeting with him on 31 May, it was incumbent upon us to advise Mr Chen that there were other ways in which he could stay in Australia. There were options which he could pursue to stay in Australia. Those options were outlined to him. Many of those options did not involve a confrontational approach to his own government.

Senator BROWN —Which ones did not involve a confrontational approach to his own government?

Ms Morton —A business visa. As I understand it, he was also advised that he could take a tourist visa to change his status in Australia and then pursue other options in due course.

Senator BROWN —So it was preferable, to avoid confrontation, that he accept one of those options?

Ms Morton —This was Mr Chen’s decision. He had not yet decided which option he would pursue.

Senator BROWN —What was Ms Plunkett’s pursuit? Was it to get him to accept the preferable option—the non-confrontational option—of a tourist or business visa?

Ms Morton —Ms Plunkett’s role was to give him advice on the normal procedures at the end of a posting and to advise him of the government’s decision that he would not be given the instrument allowing him to apply for territorial asylum. The other visa options were outlined to him by the DIMIA representative. Ms Plunkett also felt it was incumbent upon the Department of Foreign Affairs and Trade to point out that the legislation provides for the Minister for Foreign Affairs to decline a protection visa on foreign policy grounds. This piece of information is publicly available, was relevant to his situation and needed to be conveyed to him. It was conveyed to him.

Senator BROWN —So we have the situation where Mr Chen, who wants political asylum in this country—and that is a decision for the Minister for Foreign Affairs—has a message from the Minister for Foreign Affairs, Mr Downer, conveyed to him through Ms Plunkett. He knows he has had his request for asylum turned down. He is now being told that the same minister who turned down his request for asylum has the power to override any successful application for a protection visa in this country. Under those circumstances, Ms Plunkett is suggesting to him that he go for a tourist visa or a business visa because these are less confrontational with Beijing.

I put it to you that, from your own evidence, we have a situation emerging in which the minister, the government, is wanting to avoid embarrassment with the Chinese authorities by getting this defecting diplomat to take options which appear to be less embarrassing—not in his interest but in the government’s interest. Those options were a tourist visa—which, as we all know, is temporary to say the best—or a business visa. We all know or can assume that a diplomat is not going to qualify—unless there is some hidden source of money, which would be very unusual indeed—for a business visa.

Ms Morton —I may not have given you all of the options Mr Chen was given. There is, I think, a skilled migration visa as well, which I am not an expert in. But I believe that option was also put to him. I would not characterise the advice that he was given by the DFAT officer in the way that you have put it. I would characterise it in terms of a number of options that one can pursue if one wishes to stay in Australia. If one wishes to pursue some of those options, one should be aware of the consequences of that. This was the information that was given to Mr Chen at that meeting.

As part of that information, he was told that the Minister for Foreign Affairs does have the power, which he does under the legislation, to deny a visa on public interest grounds—that is, foreign policy grounds. He needed to be aware of that information. That was relevant information to his decision, which he was asked to go away and consider, which was what other kind of visa would he be applying for.

Senator BROWN —There are an enormous number of stipulations which come with an application for any visa. Do you not think it would have been much fairer to ensure that Mr Chen got legal advice so that all of those stipulations, not just the ministerial override, could be pointed out to him? Do you not think that a person listening to this could reasonably assume, on being told the minister had a ministerial override for the protection visa which he sought, that it indicated to Mr Chen that he may not get that visa?

Ms Morton —He had not yet sought a protection visa. He was not an applicant for a protection visa.

Senator BROWN —He had indicated that he wanted one, hadn’t he?

Ms Morton —I do not believe that he had. He had indicated that he had requested in writing to be considered for political asylum. That was taken as a request for an instrument which would allow him to apply for a territorial asylum visa. He was being told at that meeting that instrument would not be granted; therefore that category of visa was not available for him to apply for. There were a whole range of other visas he could apply for. He needed to have full information in order to make up his mind. That information was provided to him by the DIMIA officers there at the time not by the DFAT officers—we are not the experts in that—but by the DIMIA officers. I believe that he subsequently had further information given to him about possible options at various stages by other DIMIA officials.

Senator BROWN —And at that meeting he was pursuing a protection visa very clearly, wasn’t he?

Ms Morton —No, I believe that he was being told at that meeting that he was not going to be able to apply for territorial asylum.

Senator BROWN —But he was asking for that, wasn’t he? He told us that today.

Ms Morton —He was asking for political asylum, which is the term used—not commonly because it is extremely uncommon—for territorial asylum visas under the Migration Act. He was told, ‘That category is not available to you. Here is the list of other categories which you might wish to apply for, should you wish to stay in Australia.’

Senator KIRK —What are the criteria for this category of political asylum?

Ms Morton —I do not believe that there are any but Mr James Larsen from our legal area will be able to advise you on that.

Mr Larsen —I think there are no formulised categories for political or territorial asylum as such.

Senator KIRK —Do you mean criteria?

Mr Larsen —There are no express criteria.

Senator KIRK —How is a decision made?

Mr Larsen —The decision as to whether or not to grant territorial asylum is at the discretion, in our case, of the Minister for Foreign Affairs. It is an executive power and it is an executive discretion.

ACTING CHAIR (Senator Johnston) —It is non-reviewable.

Mr Larsen —That is correct.

Senator KIRK —Are there any guidelines at all for the making of this decision, the exercise of this discretion.

Mr Larsen —Not that I am aware.

ACTING CHAIR —It would be in the national interest.

Mr Larsen —The minister would have various considerations in mind when he makes such a decision. No doubt, the national interest is a critical one of those, but there are no express criteria which limit how the minister exercises that discretion.

Senator KIRK —Where there reasons given to Mr Chen as to why the minister decided not to exercise his discretion in this instance?

Mr Larsen —I do not believe so. Ms Morton might be able to elaborate.

Ms Morton —There is a letter that I believe has been given to the committee by Mr Chen’s lawyer which sets out the minister’s decision.

Senator KIRK —That was not until 14 June though. From what we understand, the decision was made less than 24 hours after the lodgment of the request for territorial asylum.

Ms Morton —The minister has said that he believed that it would not be appropriate to give a territorial asylum certificate in that case and that it was appropriate that, if Mr Chen wished to stay in Australia, he apply for a visa and that it be considered under the Migration Act in the normal way.

Senator KIRK —If it is the minister’s decision, why was there an interdepartmental meeting on the morning of 27 May? From what you have told us, the minister had already made the decision and conveyed that decision to you. Then the meeting was held at 10.30. Obviously, that was just for information as the decision had been made. You referred to that as being the process. There was no process; it was just the minister making his decision and exercising his discretion.

Ms Morton —The meeting on 27 May was to consider, along with the experts—mostly from DIMIA—what it was that Mr Chen could be asking for. His letter was headed ‘political asylum’. The word ‘asylum’ is used for a whole range of possibilities. One of the possibilities was territorial asylum. The decision had been made that that possibility was not going to be open to him. What were the other possibilities? Based on the advice of DIMIA that there were a range of other possibilities for Mr Chen to apply for, territorial asylum was not the only thing that could be considered. He was a foreign official in Australia at a consular post on an official diplomatic passport. We wanted to know what the options were for him.

Senator KIRK —I would not have thought it would take very long to sit around and identify the protection visa, the skilled migrant visa and the tourist visa—the ones that you have identified. Anybody knows that. What was actually discussed? I am interested to know whether or not any real discussion took place during that meeting as to the issue of whether or not he ought to be granted the instrument for territorial asylum. Had that decision already been made by the minister?

Ms Morton —That decision had been made. The discussion was about the question of, if that decision were to be implemented, what the other categories that could be considered were. This was one category of a range of options under the word ‘asylum’, so there were a range of things. We already had the minister’s view on one of them. We needed to go through and find out what the range of other options was.

Senator KIRK —On the 27 May, when Mr Chen was informed of the minister’s decision, was that during a telephone call?

Ms Morton —A DIMIA telephone call. I think the evidence that has been given is that he was due to meet with DIMIA and he did not.

Senator KIRK —He was informed on the 27 May of the refusal of his claim for territorial asylum. During that conversation, were these other alternatives that you have just mentioned conveyed to him, or did you wait until the Monday meeting to inform him of these other options?

Ms Morton —I believe that he was advised that there were other options for him at the time.

Senator KIRK —And he would have to wait until Monday to be told them.

Ms Morton —He was not asked to wait, no. The meeting was supposed to take place on the Friday, where he was to be given a full range of options. He did not come to that meeting, and I think he has explained why.

Senator KIRK —He was fearful.

Ms Morton —He made another appointment and eventually did see them on 31 May, when DIMIA went into all of the options in detail. I cannot tell you if you wish to know what was said in that earlier conversation on 27 May, but I do believe that the decision on territorial asylum was conveyed in the context of, ‘Here are the options; this is not one of them.’

Senator KIRK —When the minister makes his decision does he receive advice from departmental officers in relation to this? If so, what kinds of considerations are taken into account? What sort of information is provided to the minister in order for him in this instance to make a decision to refuse territorial asylum? I understand that it is a wide discretion. But obviously there are some issues that need to be considered. Just for future reference, what are they?

Ms Morton —I am sorry, but I am not able to tell you what was in the minister’s mind at the time. You would need to ask that question of him.

Senator KIRK —I understand that. But clearly there must be some matters considered. We understand from the evidence today that Mr Chen was told that his application was refused for foreign policy reasons. I am fascinated to know what those things were. How does the minister gather this information? Surely he did not go to bed on the 26th and then wake up on the 27th and know. He must have gained some information from experts in the field.

Ms Morton —Mr Chen has either misunderstood what he was told during the meeting on 31 May or his recollection of it is inaccurate. He was told that his request for an instrument to give him the right to apply for territorial asylum would not be given. He was not given reasons for that. He was also told at that meeting, ‘Here is the range of visas you can apply for.’

Senator KIRK —So he was not given any reason at all as to why his application for territorial asylum was rejected?

Ms Morton —No. He was not given any reason.

Senator KIRK —Nothing in writing and nothing oral?

Ms Morton —No.

Senator BROWN —Are you sure that Ms Plunkett did not explain to him that his application for asylum had been turned down for foreign policy reasons?

Ms Morton —Yes, I am.

Senator BROWN —That is from your conversation with her?

Ms Morton —Yes.

Senator BROWN —You said that at this meeting Mr Chen had not indicated a preference for visa. But Mr Chen met Ms Lindsay from DIMIA two days earlier and she explained to him the option of a protection visa and he clearly indicated that that was his preference.

Ms Morton —I am not aware that Ms Lindsay met Mr Chen prior to that meeting on 31 May.

Senator BROWN —I am sorry: there was a phone call between the two.

Ms Morton —I am aware that there was a phone call on 27 May.

Senator BROWN —In that phone call, he expressed that his preference was for a protection visa, given the circumstances that an application for asylum had been turned down.

Ms Morton —I am not aware of the detail of that. That would be a question that DIMIA would need to reply to.

Senator BROWN —Was that not passed on to Ms Plunkett or to DFAT?

Ms Morton —In general terms, we were aware that he had been given oral advice that a territorial asylum visa was not an option and that there was the option of a protection visa and a range of other visas under the Migration Act which he would be eligible to apply for.

Senator BROWN —His response was that he wanted a protection visa under those circumstances.

Ms Morton —The DIMIA official came armed with an application form, so I believe that she had indicated that was an option and that was something he could pursue.

Senator BROWN —And he had indicated two days earlier that that was what he wanted to pursue.

ACTING CHAIR —She has answered this three times.

Senator BROWN —No, she hasn’t.

ACTING CHAIR —He wanted political asylum. She said it three times. How many more times does she need to say it?

Senator BROWN —You can ask your questions in good time. I am asking mine.

ACTING CHAIR —I have not got any questions. We are waiting on you to finish.

Senator BROWN —Then do not interrupt. Ms Morton, two days before the meeting—I come back to this again—he had indicated to Ms Lindsay that he preferred a protection visa to be granted.

Ms Morton —I would expect a responsible immigration officer would not think that a quick phone conversation with a single officer from DIMIA would convey adequate information for a person to make a very important decision relating to their future and the future of their family. I believe that both DFAT and DIMIA wished to make Mr Chen aware of all the relevant information and all the relevant options before he made a final decision. He made that decision, I believe, a week later and applied for a protection visa. Those are the facts as I am aware of them.

Senator BROWN —You are denying this, but I am indicating to you that the sequence of events is that two days before that meeting took place Mr Chen had expressed a wish to have a protection visa.

Ms Morton —Mr Chen applied on the following Friday. That is the fact.

Senator BROWN —That was a written application, but he made an oral application some days before that. That is the fact.

Ms Morton —I think it better that DIMIA answer the question of how an application is made for a protection visa. I am not an expert on that.

Senator BROWN —I am talking about this case of Mr Chen and the evidence we have before us. Was it seriously suggested that he consider an offshore protection visa?

Ms Morton —The visa categories were gone through by DIMIA at that meeting. You need to direct your questions on visa categories to DIMIA, please. That is not my area of expertise.

Senator BROWN —No, I am directing them to you, because your officer was there and had the major say in that meeting in explaining these alternatives.

Ms Morton —I do not believe that is the case. The options were outlined by the DIMIA officials present at that meeting.

Senator BROWN —I believe, from Mr Chen’s evidence, that Ms Plunkett took the major role in pursuing the options that he ought to take. But, anyway, I asked—

Ms Morton —I have already indicated that my understanding of this is that Mr Chen’s recollection of that meeting is either incomplete or faulty, because he also said that he was told it was extremely impossible for him to get a protection visa. Ms Plunkett has said that that is absolutely not true. He was in fact given a form at that meeting to apply for a protection visa. He was told there was no guarantee his application would be successful. His recollection of that meeting is, I think, faulty.

Senator BROWN —I do not think it is. But I would like to test Ms Plunkett’s recollection so I ask you now to bring her with you when you come back to the committee. I want to ask about—

ACTING CHAIR —I think you should take some advice on that, Ms Morton.

Ms Morton —Thank you.

Senator BROWN —I now want to ask about the meeting between Ambassador Fu Ying and the minister, Mr Downer. What is your understanding of what took place at that meeting on 2 June?

ACTING CHAIR —Or, rather, do you have any understanding at all?

Senator BROWN —No, I am asking—Senator, if you don’t mind—

Ms Morton —I was not present at that meeting, Senator Brown.

Senator BROWN —So you had no appraisal of that meeting?

Ms Morton —I have what the minister has said about that meeting. That is that on Thursday, 2 June, Ambassador Fu Ying was with a senior Chinese visitor who called on Mr Downer. Following that meeting, I recall Mr Downer saying that as they were both going out of the door of his office he had a brief conversation with Ambassador Fu Ying, who raised with him the question of Mr Chen. Ambassador Fu Ying was aware that Mr Chen was not satisfied with his job and did not wish to return to China because Mr Chen had written a letter to officials in his own consulate advising them of this. We knew this, because Mr Zhou from the consulate had telephoned us on the Monday morning to advise us of this—that they were not concerned for his physical welfare because they now had information in writing from him that he was not satisfied with his job and did not wish to return to China. That is on the record.

ACTING CHAIR —Have we seen a copy of the letter?

Ms Morton —I have not.

ACTING CHAIR —Has anyone asked Mr Chen to provide a copy of the letter?

Ms Morton —I have not, no. I am not sure whether the committee has.

ACTING CHAIR —We have not, but we might.

Senator BROWN —No. We were provided with a copy of the letter this afternoon by Mr Green.

ACTING CHAIR —The letter to the consulate? No, we have not.

Senator BROWN —I have a question on notice for you. Could you find out when the department and the minister’s office first became aware of the presence in Australia of police officers Hao and ‘Z’, who appeared before the committee this afternoon.

Ms Morton —That is impossible. We do not know who ‘Z’ is, so how can we tell you when we became aware of his presence in Australia?

Senator BROWN —I can assure you that I will go to the small exercise of getting his name for you.

ACTING CHAIR —You can put questions on notice to the department’s officers and they can deal with them as and when they come. I think that is the appropriate course.

Senator BROWN —I just did that.

ACTING CHAIR —Good.

Senator BROWN —So the question is on notice.

Ms Morton —I can answer the first question about Mr Hao. We became aware of his presence in Australia when he announced to the press that he was a Chinese person seeking a protection visa. He appeared on Lateline, I understand.

Senator BROWN —What do you think of a situation where a police officer who is in charge of a major metropolitan police station and has a great deal of information about the operation of special police, including those who torture and kill people in China for their religious beliefs, defects to Australia and four months after he arrives here and makes application for a protection visa your department does not know about it?

Ms Morton —We have heard a lot of information being put to this committee about the privacy considerations, both under the Migration Act and under international conventions. I am not at all surprised that we were not advised.

ACTING CHAIR —Indeed, those considerations may preclude you from disclosing anything in the nature of some of these things.

Ms Morton —Absolutely. It may preclude DIMIA.

ACTING CHAIR —And you.

Ms Morton —If we knew, yes.

Senator BROWN —I will have further questions about that when we come back together again. I thank you very much.

ACTING CHAIR —Thank you all. Mr Robinson, the media have expressed an interest in your opening statement. If you consent, we would release copies of that. Perhaps we could ask you for those. Seek advice, if necessary. It is on the public record and I would not have thought you would have a problem, but I feel obliged to ask whether you would consent to releasing that document so that it can be released to the media who have made the request.

Mr Robinson —We would be happy to provide it. I have made notes on the copy I have here, so I would prefer not to hand it across. We can certainly provide that at an early opportunity.

ACTING CHAIR —Where might you be contacted?

Mr Robinson —At the Department of Foreign Affairs and Trade.

Senator BROWN —Do you have a phone number where media people might contact you if they want that opening statement?

Mr Robinson —We have provided that to the secretariat.

Senator BROWN —Would you prefer not to give that phone number to the committee?

Ms Morton —We can make Jeff’s statement available through our media liaison office. We will provide it to the committee in writing and we will provide it also to our media liaison office in the department, which journalists have the contact details for. We will do that through the media liaison office.

ACTING CHAIR —Please arrange for that to be faxed to the secretary.

Mr Robinson —I can send a copy of my statement to the secretariat by email.

ACTING CHAIR —Thank you for your cooperation.