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Tuesday, 16 February 1999
Page: 2029

Senator Bourne asked the Minister representing the Minister for Immigration and Multicultural Affairs, upon notice, on 8 December 1998:

With reference to a recent refugee matter, in which the Minister refused to consider exercising his discretion on a case involving a Somali national, known as Mr SE:

(1) Why, under the immigration advice application assistance scheme, was Mr SE not legally represented at the Refugee Review Tribunal hearing.

(2) Was he subsequently advised of his right of appeal to the Federal court; if not, why not.

(3) Why did the Minister refuse to consider exercising his power under section 417 of the Migration Act 1958, despite interventions from Amnesty International Australia and his (Mr SE's lawyers') submission to the United Nations Committee against Torture.

(4) With reference to the Minister's refusal to exercise his power in this case and the attempted deportation: (a) why was Mr SE given such short notice of his removal; and (b) why was Mr SE not allowed to contact his lawyer and eventually transferred to Port Hedland Immigration Detention Centre as opposed to being returned to Melbourne where his lawyer is based.

(5) Would it have been cheaper to return him to Melbourne.

(6) Why was a private security firm used to deport him.

(7) Why did the Government not heed Amnesty International's representations in the case, but instead warn of `serious consequences' of campaigning on his case, despite the fact that Mr SE had given Amnesty International his consent to do so.

(8) Will the Minister confirm that Mr SE will not be deported.

(9) Does the Minister accept that Australia's domestic law falls well short of ensuring that Australia's international treaty commitments to, and other obligations under, the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the 1966 International Covenant on Civil and Political Rights are capable of being met, given that the fundamental principle of non-return to face torture or death is not present in domestic law.

(10) Why is there no safety net to catch those who do not meet the strict definition of a refugee under domestic law, but who would face torture or death on return.

(11) If the Minister claims that there is a safety net, why did it not prevent the attempted removal of Mr SE.

(12) Can details be provided of: (a) what has happened to the 19 Somali nationals who were removed from Australia in September and October 1998; (b) the circumstances of their removal; (c) where and how are they now; (d) how they were removed to Somalia; (e) how long they were in countries before being returned; (f) were they in custody; (g) in whose custody were they held; (h) under what authority; and (i) are they in safe physical and mental condition.

Senator Vanstone (Justice and Customs) —The Minister for Immigration and Multicultural Affairs has provided the following answer to the honourable senator's question:

(1) The Refugee Review Tribunal (RRT) is a non-adversarial body and legal representation is not necessary during an RRT hearing. Only the applicant has a statutory right to appear before the RRT and give evidence. The Tribunal is not required to allow any other person to address it orally about the issues arising in relation to the decision under review. As a detainee, Mr SE was offered assistance at public expense in accordance with the contract for the Immigration Advice and Application Assistance Scheme. Under this scheme the contracting migration agent is required to assist with the preparation and lodgement of an RRT application but is not generally required to be present at RRT hearings. Asylum seekers are not bound to accept offers of application assistance and are free to make whatever arrangements they wish to obtain alternative or further assistance in pursuing their claims.

(2) Yes, in writing on 22 May 1998.

(3) My power under s417 is non-delegable and non-compellable. I will consider exercising my s417 power only when I consider it may be in the public interest to do so.

(4) (a) There is no legislative obligation to inform a detainee of their date of removal from Australia. However, Mr SE had repeated notifications of removal over a three week period leading up to 19 November 1998.

Mr SE was advised in writing on 23 October 1998 that he was to be removed. On 30 October 1998, he was given a further notice advising him of the Department of Immigration and Multicultural Affairs' (DIMA) intention to remove him and on 16 November 1998, DIMA officers informed Mr SE's solicitor that the detainee would be removed within days.

(b) Mr SE was not prevented from contacting his legal representatives. When DIMA officers informed Mr SE at the Maribyrnong IDC of his removal arrangements on Thursday 19 November 1998, he did not ask to speak to his solicitor. He was taken to Melbourne Airport by DIMA officers with Australasian Correctional Management escorts and boarded a Qantas flight to Perth.

Upon his arrival at Perth, senior DIMA officers interviewed Mr SE, as a complaint had been lodged on his behalf with the United Nations Committee Against Torture (UNCAT). Present at the interview was a representative from the Commonwealth Ombudsman's office in Perth. Mr SE was given the option of proceeding on the scheduled flight to South Africa or to proceed to the Immigration Reception Centre at Port Hedland, the closest appropriate immigration detention facility, pending the outcome of an inquiry into his circumstances by the UNCAT. Mr SE chose to stay in Australia and await the outcome of the UNCAT inquiry.

(5) No.

(6) Under the Migration Act 1958, removal of Mr SE is the responsibility of the airline carrier which brought him to Australia.

(7) The Government did not warn Amnesty International of serious consequences of campaigning on Mr SE's case. The Government contacted Amnesty International to draw their attention to an order, made by the Federal Court with the consent of Mr SE's counsel, that prohibited the publication of Mr SE's name and any information which might identify him.

Amnesty International had issued an alert disclosing Mr SE's name and other identifying information on the same day that the order was made by the Federal Court. Amnesty International was advised that `serious consequences could flow from the failure to observe such an order'. That is, that the breach of a court order is a serious matter which can result in criminal charges.

(8) Mr SE has been informed that there is no intention to remove him from Australia before the UNCAT has completed its consideration.

(9) No.

(10) A safety net does exist. All people determined not to be refugees by the RRT are assessed against my Guidelines for the identification of cases where I may consider it to be in the public interest to grant a visa.

The Guidelines refer to "persons whose particular circumstances or personal characteristics provide a sound basis for a significant threat to their personal security, human rights or human dignity on return to their country of origin."

Cases that are assessed as falling within these Guidelines are referred to me for my consideration of whether or not I consider it would be in the public interest to grant a visa in the case.

In addition, if a person writes to me seeking exercise of my public interest powers their case and any additional information is assessed afresh against the Guidelines and is brought to my attention so that I may consider whether to consider substituting a more favourable decision in their case.

(11) At the time that Mr SE's removal commenced, Mr SE's case had been assessed against my Guidelines on four (4) different occasions. It had been drawn to my attention on three (3) different occasions and I had declined to consider the exercise of my s417 power on each of those occasions. The safety net process operated as intended.

(12) (a) No follow up enquiries have been made concerning the whereabouts of Somalis removed from Australia.

(b) A group of 22 Somali nationals arrived in Australia in November 1997 using forged immigration documentation and were refused immigration clearance. They were detained in accordance with the Migration Act while their applications for protection visas were considered. Four were granted protection visas. Three of the group appealed to the Federal Court against the refusal of their protection visa applications. They remain in detention in Australia awaiting the outcome of their appeals. The remaining 15 persons were refused protection visas, did not appeal these decisions, and were removed from Australia in September 1998.

Three other Somali nationals who arrived without authorisation by air at different times were also removed in September and October 1998.

(c) The group of fifteen was returned to the cities of Mogadishu, Baidoa, Buleberde, Kismayo and Hargeisa in Somalia according to their preferences.

Of the other three Somali nationals, one was returned to Basoso, East Somalia. A second was returned to Kenya and the carrier advised that this person arranged, through a sponsor, a forward ticket to Mogadishu, Somalia, via Dubai. The third was returned to New Zealand, where he had a right to permanent residence.

Any subsequent movements made by the 18 Somalis are unknown to DIMA. No information is known about their personal circumstances.

(d) By air. In accordance with the Migration Act, removal is the responsibility of the airline company that brought each person to Australia without authorisation to do so.

Therefore, the carrier responsible for bringing the group to Australia made all the arrangements for the group's removal.

The group of 15 was escorted to South Africa by the Australian private security firm, Chubb. The onward travel from South Africa was arranged by the South African firm, Protecting & Indemnity (P&I). P&I company was also contracted to obtain the necessary Somali travel documents.

The three other Somali nationals were removed separately by the responsible carriers at the individual's written request.

The group of 15 was removed from Australia (to South Africa in the first instance) in small groups. Five departed on 5 September 1997; three departed on 15 September; four departed on 17 September; two departed on 19 September and one departed on 21 September.

The whole group of 15 then travelled from South Africa to Somalia, via Kenya on a charter flight on 7 October 1998.

Of the three other Somali nationals, one was removed directly to Basoso, East Somalia, on 11 September 1998. A second was removed to Kenya on 22 October 1998. The third was removed to New Zealand on 4 October 1998.

(e) Due to their different departure dates from Australia, members of the group spent between 15 and 31 days in South Africa prior to their departure from South Africa on 7 October. All spent a night in Kenya en route to Somalia.

Of the three other Somali nationals, one returned directly to Somalia, one spent an undetermined amount of time in Kenya before continuing private travel to Somalia via Dubai and the other did not return to Somalia.

(f) No.

(g) P&I accommodated the group in South Africa pending receipt of Somali travel documents and the charter flight to Somalia. There were no accommodation arrangements for the individuals.

(h) The group was accommodated under the arrangements made by P&I and the South African government authorities. There were no arrangements for the individuals.

(i) P&I reported that all members in the group were in good health and spirits on the day they arrived in Somalia. There is no information about the three other Somali nationals, but each requested in writing to be removed.