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Legal and Constitutional Affairs Legislation Committee

THOM, Dr Graham, Refugee Coordinator, Amnesty International

Evidence from Mr Regester was taken via teleconference—


CHAIR: I will now call the next panel - the Refugee Council of Australia, the Refugee Advice and Casework Service, Amnesty International and UNICEF. We are scheduled to start at 1.45 pm and finish at 2.30 pm. With the indulgence of Hansard and the secretariat, we might forgo afternoon tea, the 15 minutes, and go through to at least 2.25 pm to give a bit more time for this panel. Gentlemen, I am not sure whether you heard me but just very briefly: these are proceedings of parliament and parliamentary privilege applies. If you want to say anything, particularly confidential, please raise that and we can deal with it. We have submissions from three of you and I think UNICEF's is on the way. Is that right, Secretary?

I know UNICEF have sought to be added. I think UNICEF are joining us on the telephone. Are you there, Mr Regester?

Mr Regester : Yes, I am.

CHAIR: Have you given us a submission?

Mr Regester : We contributed to and endorsed the Human Rights Law Centre's submission.

CHAIR: All right, thank you. I will ask the four witnesses whether you would like to make a brief opening statement, or to amend or alter your written submissions, and then the committee will have some questions.

Mr Power : Thank you for the opportunity to appear before the committee today. The Refugee Council of Australia was keen to accept the opportunity to appear. I have been at the Refugee Council of Australia for eight years and, in terms of undermining basic principles of fairness, this is the most troubling piece of legislation I have seen in that period in relation to refugee policy. I gather that you have heard today about concerns that other organisations share in relation to the rule of law, Australia's international obligations and procedural fairness, so I will not go into those. You can see from our submission that we share many of those concerns. But I just I wanted to raise a number of issues quickly.

The first is what we see as the lack of justification for the legislation. Under the current arrangements, which the Rudd government put in place and the Abbott government has maintained, all future boat arrivals will be sent to Nauru or to Papua New Guinea, and will never be given the opportunity to live in Australia—a point which the government has emphasised many times. If that is the case, we do not see it necessary or justifiable to introduce policies which really do nothing more than punish asylum seekers who are already in Australia. There can be no justification for it on the basis of deterrence—which has been part of the government's argument for temporary protection visas, for instance—because any future arrivals cannot hope to get access to Australia under the government's current arrangements, and so therefore temporary protection cannot be perceived to be a deterrence. Also in relation to temporary protection visas, much has been said and written about what happened after TPVs were introduced in 1999. The committee would be aware that the end result was that well over 90 per cent of those given temporary protection, ultimately, were quietly given permanent protection—most of them during the period of the Howard government. So as a result, close to 10,000 people who are now citizens of Australia were subjected to years of needless anguish. We cannot see what was achieved by this.

I note that the Asylum Seeker Resource Centre, in its submission, refers to the temporary protection visa as a 'family separation visa'; I think that aptly describes the impact of the visa on many people between 1999 and 2007. It also aptly describes what will happen if this legislation is passed and the visa is reintroduced. Families who are known by the government to be experiencing the impacts of persecution will be separated indefinitely. The family member in Australia will be trapped: having to decide whether to remain safely here, away from the place where it is accepted that they will face persecution, while other family members are highly unsafe, or to return at great risk to themselves. You can only imagine that that is a huge dilemma for people in that situation. Unfortunately it is a dilemma which the parliament will create if this bill is passed.

In relation to temporary protection visas and safe haven enterprise visas, I am aware that, because of the politics of the parliament, it is quite possible that these visas may become law. While our organisation opposes temporary protection—for many reasons which we have outlined in the past—our submission also includes some recommendations for how, if the visas are to be introduced, the impacts on those holding temporary protection visas can be reduced. Clearly, we believe that holders of temporary protection visas need to be given a realistic pathway to permanency. We saw during the Howard government that that is, ultimately, what happened: people were given a pathway to permanency.

People also need to be able to exit and re-enter Australia to visit family in countries of asylum. It is a common circumstance for families to have a crisis which puts people in a situation where they are desperate to be reunited with other family members who are outside the country of persecution. There also needs to be some way to allow family reunion to occur, because we have to accept that, in many cases, those recognised as refugees and given temporary protection are not going to have the opportunity to return home for the foreseeable future; they will become, in many cases, long-term residents of Australia. So we actually also have to look at this issue from the perspective of the impact on our own nation.

Another point that I would encourage the committee to explore is how the cap on permanent protection visas is going to work for refugees who have sought asylum after arriving on other visas. I would gently encourage you to ask the Department of Immigration and Border Protection about the status of people who need protection but cannot be given visas because the cap has already been reached in that given year. We would be interested to know: will they be kept on bridging visas; will they have the right to work while waiting for a permanent protection visa; if they will not have the right to work, won't that breach Australia's obligation under articles 17 to 19 of the refugee convention—

CHAIR: We will ask the department that.

Mr Power : to allow recognised refugees to work, or will the department just make a determination of refugee status without telling the person, so that these issues with the convention—hopefully, from their perspective—will go away?

I would also encourage you to ask why asylum seekers who are able to work, who want to work, who do not wish to live on government benefits, are being prevented from doing so—this is relevant in relation to the cap on permanent protection visas—and also ask whether the department and the government support the view of the member for Mallee, Andrew Broad, who believes that giving work rights to asylum seekers will reduce the financial burden on the government, assist employers desperately seeking willing workers and also boost community harmony and goodwill.

CHAIR: Thanks, Mr Power. Who is next?

Mr Regester : UNICEF Australia appreciates the opportunity to give evidence today. We apologise we cannot be there in person but we appreciate the flexibility of the committee in allowing us to appear by phone. I would also like to pass on apologies for UNICEF Australia's CEO, Dr Norman Gillespie, who is in Myanmar. UNICEF is a multilateral organisation that works in over 190 countries to promote and protect the rights of children. UNICEF Australia is a national committee for UNICEF in Australia and has a mandate to advance the rights of all children, including those in Australia. UNICEF Australia hold manifold concerns about this proposed legislation. These concerns include the sweeping expansion of ministerial discretion and the impact on separation of powers. The marginalisation of international law proposed in this bill, compounded by the winding back of the power of the Australian courts to scrutinise the treatment of people seeking Australia's protection threaten the very tenets of Australia's place as an upstanding international citizen.

We believe that the passing of this bill would come with substantial risks that Australia will violate international law and the justice system will be constrained in remedying this illegality. Whilst UNICEF Australia have concerns about the impact of the bill on all people seeking asylum, across nearly every problematic element of this bill, children and families will be rendered particularly vulnerable. The provisions to fast-track refugee assessment and restrict review rights are likely to limit the ability of children to articulate their claims and create a very real risk that children who have not had a fair hearing will be sent back to places where they are at danger of persecution. Marginalising international law, excluding the rules of natural justice and stripping judicial oversight from activities under the Maritime Powers Act will allow children, including unaccompanied children, to be detained at sea indefinitely and shipped to any country or place and put them at an unambiguous risk of refoulement.

Acknowledging that reducing the number of people, including children and families, in detention is a legitimate and admirable policy objective, we do not believe that the reintroduction of temporary protection visas is an appropriate way to achieve this goal. TPVs have significant, well-established impacts on the mental health and wellbeing of children and their families. TPVs also deny the right to family life by excluding holders from applying for family reunification and preventing them from travelling overseas to visit family members.

This is particularly problematic for unaccompanied children, who could be deprived by this law of any contact with their parents and siblings for extended periods of time.

We are also concerned about the provisions which deem children born in Australia to be unauthorised maritime arrivals. We do not believe a legitimate case has been made that these measures are reasonable, necessary and proportionate to their goal. The extraordinary steps to make these provisions operate retrospectively, potentially to children who are already engaged in attempting to find legal remedy, have not been made and cannot be justified. Children classified as UMAs would, under this proposed legislation, be sent to Nauru as soon as reasonably practicable pursuant to section 196AD(2) of the Migration Act. Nauru, as we have all been well informed, is not an appropriate place for children, let alone newborn babies.

UNICEF Australia is also concerned that these provisions could lead to statelessness and further separation of families. The impact that the proposed legislation will have on already vulnerable children is profoundly negative, as I hope I have made clear. UNICEF Australia urges this committee to recommend against the further passage of this bill. I am happy to expand on any of these points for the committee or answer any further questions.

CHAIR: Thanks very much, Mr Regester.

Dr Thom : I would like to begin by acknowledging the traditional owners of the land on which we meet, the Ngambri and the Ngunnawal people. We pay respect to their elders past, present and future. We celebrate their continuing culture and acknowledge the memory of their ancestors.

Amnesty International's submission sets out our main objections to the bill. Amnesty International does not support this legislation. I would like to thank the committee for providing Amnesty with the opportunity to attend this hearing to outline additional key areas of concern, provide specific examples and answer any questions in relation to our submission. It is clear that a number of the key concerns outlined in our submission have also been raised by numerous other organisations, including the United Nations High Commissioner for Refugees.

As such, today Amnesty International wishes to focus on, firstly, fast-track processing including removing procedural fairness safeguards and issues with the exclusion of particular groups. Specifically, Amnesty International would like to discuss cases where documents have been deemed by the department to be fraudulent, where we have then investigated those documents. Through our researchers around the world we have been able to verify those documents and provide them to the tribunal, and we have seen the cases then found to be refugees. We have grave concerns that this process will not provide us with time to be able to do this and that, even if we do this, there is no obligation under the new statutory body even to look at that evidence that we find.

CHAIR: Would you be able to take it to the minister?

Dr Thom : I will get to that, because our next concern is with Australia's broader non-refoulement obligations. We do not believe that complementary protection concerns, in light of the two other bills before the parliament—the Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill and the Migration Amendment (Protection and Other Measures) Bill—will enable complementary protection to be effectively examined and enable those seeking asylum or those seeking protection under our broader complementary protection obligations to get that information to the minister.

We believe that the explanatory memorandum to this bill is deliberately misleading, highlighting a number of provisions in the act which would not be available, including section 417, to people who have gone through this fast-track process. Coupled with that we have grave concerns that, even if they are not able to get their information to the minister, there is still an obligation under this bill for departmental officials to remove those people, whether or not they have protection needs, which we think is unique and a clear breach of Australia's international obligations.

We also have serious concerns with the reintroduction of temporary protection visas. Previous people giving evidence to this committee have highlighted the convention obligations that would be breached if they are reintroduced. We also know that others have provided information around the damaging mental health impacts of temporary protection visas.

We would like to highlight the fact that temporary protection visas undermine UNHCR's ability to refer people for resettlement. Senator Macdonald, I know that you have highlighted the importance of resettlement and UNHCR's ability to highlight people who are in need of that particular type of protection. In terms of how Australia asks UNHCR to refer people, in the majority of cases it asks for people who have a family connection already in Australia. So we are now going to ask UNHCR to first look for people who have a family connection but then look to see if that family connection is with somebody who arrived by boat. So we will not take those people if they have come by boat, leaving those people in limbo, leaving those people at particular risk—

CHAIR: Another country can take them.

Dr Thom : Well, they won't. This is the problem.

CHAIR: Why not?

Dr Thom : If you go to the US and say, 'We have two young children here. Their father is in Australia. We would like you to take these two young children,' the US will say, 'No. If their father is in Australia, you refer them to Australia.' UNHCR has had serious problems in the past in referring children to countries where they have had parents in this country. We are setting in place mechanisms that are going to put families at risk, leave them in limbo, including vulnerable children.

CHAIR: As I have said before, we can send the father to the United States.

Dr Thom : The question is: why would the US want to take somebody who is legitimately seeking asylum in this country?

CHAIR: To reunify the family.

Dr Thom : Again, this is a long, convoluted way to get around our convention obligations, Senator.

CHAIR: Anyhow, it is your submission. Please go on.

Dr Thom : I would like, if time permits, to present a case study that clearly identifies this issue, but I understand we are pressed for time and so I am happy to just say that.

CHAIR: Mr Cosgriff?

Mr Cosgriff : As we know, the bill proposes sweeping changes to almost every facet of the government's handling of refugees, and the committee has our detailed comments and objections in relation to each of the schedules. I am conscious of making sure that we have a reasonable amount of time for questions, and so for that reason with these comments I would like to emphasise to the committee some of the problematic aspects with what is proposed for the fast-track processing of protection visa applications.

The Migration Act gives the Refugee Review Tribunal the role of reviewing protection visa applications that are refused by the minister. That is the current state of affairs. We would recommend that the committee look very carefully at whether there is sufficient justification for changing that situation. What is proposed in the bill is that a new body, the IAA, sit alongside the RRT as an alternative form of review of decisions to refuse protection visa applications. Schedule 4 would give the minister a broad power to push almost every protection visa application through to the IAA instead of the RRT; but for now what is proposed in the bill is that, if you came with a visa, you get the existing review process and that, if you came by boat, you get the new system. That seems to be a very unsophisticated way of deciding which applicant should receive lower standards of fairness. It is a decision connected to nothing but a person's mode of arrival.

Secondly, there is no suggestion that the applications of those who are affected, those people who arrived in Australia on a boat, are likely to be simple in nature or are likely to be easy to decide fairly. In fact, based on the department's historical evidence of the rate of recognition of those who would be affected, there can be no argument that this cohort warrants a less robust system because their applications are less likely to be meritorious.

As for why the fast-track system is inferior and likely to lead to a higher rate of poor decision making, our first concern would be with the way that the IAA is proposed to operate. The statutory framework in schedule 4 would allow the IAA to essentially be a rubber stamp for departmental decisions, because the act would discourage the IAA from asking its own questions of the applicant.

By relieving the IAA of any obligation to ask an applicant about their claims or to allow an applicant to respond to the reasons for the decision to refuse the application, the form of merits review that is proposed by the bill means that the errors in primary decisions are likely to frequently pass unremedied.

As well as how the IAA proposes to deal with the cases referred to it, RACS is also concerned by the fact that a proportion of applicants will not even get that far. That is because of the definition of 'excluded fast-track review applicant', who will all be denied any form of merits review. That includes, for example, people who are considered to have made manifestly unfounded claims. Whether a person is considered to have made a manifestly unfounded claim is a decision in itself, and these decisions are complex. Often they will come down to assessments of credibility—balancing things like demeanour and responses to adverse information. We would submit that decisions made on that basis are decisions that require review, and that there should be no exceptions to who has access to review and who does not.

We would also expect the problems that arise as a result of those assessments—credibility, adverse information and other things—to become more pronounced with the lower rates of legal representation that could foreseeably expect to be seen with the protection visa applications of this cohort. We can then turn to what might happen to those people who are unsuccessful because of the new process, and that takes us to schedule 5.

CHAIR: Sorry, can you hold your thought? Once you have gone to the IAA, can you go to the RRT after that? Or does the IAA completely take—

Mr Cosgriff : The IAA would be your final point. The decision would be to affirm the minister's decision, for example. Unlike the current procedures following the RRT, there would be no safety net provision, if you like, Chair—no provision which would allow the minister to identify situations that are unique or exceptional, and to intervene to make a more favourable decision.

CHAIR: So if you have been to the IAA—

Mr Cosgriff : It is the end of the line.

CHAIR: You cannot go to the RRT afterwards?

Mr Cosgriff : No.

CHAIR: Can you go to the RRT beforehand?

Mr Cosgriff : No, it is instead of the RRT. Anyone who comes by boat gets something that is not the RRT, and that is the IAA. An applicant in this cohort whose application was refused by the minister could try to make an application to the RRT, and the RRT would respond with its decision, which says it has no jurisdiction.

CHAIR: So why are we going to keep the RRT?

Mr Cosgriff : For protection visa applicants who arrive with a visa, which currently—

Senator HANSON-YOUNG: Tourist visa, or—

Mr Cosgriff : Business visa, student visa.

CHAIR: Okay. Carry on. Sorry; I interrupted you.

Mr Cosgriff : Those who are unsuccessful as a result of this process are then vulnerable to the changes that are suggested by schedule 5, which allows such a person to be removed even if there are the most glaring errors in the decision-making process. As I have stated, there is no safety net provision for the minister to intervene in such a situation. The view expressed in the explanatory memorandum is that the minister and the department should be trusted to get all these decisions right. We would not suggest that the minister would intend to act improperly, or that a future minister would necessarily intend to act improperly, but we would certainly submit that it is appropriate for Australian legislation - it is appropriate for the Migration Act - to prohibit refoulement. It is certainly not appropriate for the act to explicitly authorise the breach of our international obligations, and that is what schedule 5 would achieve. Thank you, Chair.

CHAIR: Thank you.

Mr Mojtahedi : I would simply want to thank the committee for the opportunity to appear, and to say that I embrace the comments of Mr Cosgriff. I am happy to take any questions you might have.

CHAIR: Thank you very much.

Senator HANSON-YOUNG: I firstly want to go to the issue in relation to babies born in Australian hospitals, when one or both parents have arrived by boat, being effectively made stateless.

Firstly, I have concerns that this schedule is retrospective, in the sense that there are children who have already been born in Australia and they will be redefined as being an authorised maritime arrivals. It just seems bizarre, let alone the idea of setting up a system that effectively makes them stateless. Where does that leave them in terms of their rights? Does that mean they can be removed to Nauru? From your various organisations' perspectives, what problems does that uncover?

Mr Regester : I am happy to respond to this question. UNICEF Australia is also concerned about this provision, that children born in Australia to one parent who is classified as an unauthorised maritime arrival would also be classified under the same label. We acknowledge that there are provisions in the Citizenship Act, section 21, subsection (8), which allow application to the minister for citizenship if a child would otherwise be stateless. However, if parents are not aware of this right, they are liable to be sent to Nauru with their baby before they can make an application and they would be stateless upon arrival at Nauru. We are particularly concerned about this.

I will give an example for the benefit of the committee. If a woman who is stateless arrived in Australia by boat and gave birth in Australia, her child would not have any claims to citizenship or nationality to any other state as their mother is stateless. The parent and the baby could be sent to Nauru. If the parent did not make an application to the minister—because, for instance, she was not made aware of the need in the time between the child's birth and being sent to Nauru to make that application—then the child would remain stateless.

UNICEF works with stateless people around the world and we know that they face a range of problems, including difficulty in accessing basic social services, such as education, health care and social security. Stateless children are also at greater risk of experiencing labour exploitation, sexual expectation, trafficking, poverty and discrimination, and statelessness imposes practical limits on the freedom of movement of families and can have profound negative impacts on children's identity. So we are incredibly concerned that enacting laws that effectively force persons into statelessness undermines the right to acquire a nationality and undermines the principles of the 1954 convention relating to the status of stateless persons. This law could codify an inherently arbitrary and inhumane process for dealing with newborn children.

Senator HANSON-YOUNG: I am happy for anyone on the panel to answer this. There has been a lot of talk today about, effectively, the redefinition of a refugee. Effectively, what this bill is setting out to do is trying to redefine who the department will assess to be refugees and therefore making it more difficult for the existing group of people, who this bill is designed to deal with—effectively placing the bar even higher than it currently is. There are obviously changes to the issues in relation to social groups. There has been some talk in relation to: if you are removed, can you be removed safely to a different location within your country? Could you please comment on those changes, in terms of the impact they will have on redefining somebody's status?

Mr Mojtahedi : I will attempt to address that issue. The new proposed section 5J(1) provides that a person has a well-founded fear of persecution if inter alia the real chance of persecution relates to all areas of a receiving country. I understand a number of submissions have made the point that, while there is no reference in the convention's definition to the principle of internal relocation, it is nevertheless generally accepted that the grant of asylum may be denied to an applicant where it may be considered reasonable, in the sense of it being practicable, for them to move to another part of the country and live safely, where there is no appreciable risk of the occurrence of the feared persecution.

We say that the new proposed section presents a significant departure from the understood operation of the convention, in that it removes the internal relocation principle. It is no longer a matter of reasonableness, which is what it has been accepted to be, but requires an individual to demonstrate a fear of persecution in all parts of the country.

Mr Regester : Just to add to that with relation to the consideration for social groups, as you mentioned, Senator, we are concerned that the proposed subsection 5L(1)(b) would narrow the class of social groups, for the purposes of considering Australia's protection obligation in its legislative requirements, to the characteristics that must be shared by the members of the group. So they must either be 'an innate or immutable characteristic' or be 'so fundamental to a member's identity or conscience that the member should not be forced to renounce it'. We are concerned that this might not capture some social groups, such as former child soldiers, who may not be eligible for Australia's protection because of questions of the immutable nature of their characteristics, and these concerns will extend to women and families who have experienced domestic violence and have removed themselves from the experience of domestic violence but might still be at risk.

If I can explain these concerns, the explanatory memorandum suggests that an immutable characteristic could be considered to capture a certain experience, such as being a child soldier; however, we are concerned that 'immutable' could be read not to capture people who have shared this experience in the past. For example, if a person was a child soldier but is no longer a child soldier, the question is: could it be claimed that this characteristic is immutable? UNICEF works in the field all across the world in the reintegration of children who are former child soldiers into their communities, as well as negotiating with armed groups for the return of child soldiers. And we know that former child soldiers are often persecuted because of their past and are particularly vulnerable in attempting to return to their communities. We would be enormously concerned if these changes prevented former child soldiers from being considered to be refugees and seeking protection under Australian law. And we are concerned about a number of the consequences of these changes that might be yet to come to light, such as this one, because of the nature of the changes and the removing of the refugee convention from the Migration Act in a number of cases.

Dr Thom : Amnesty International would like to echo that point, and also a number of the points raised in submissions, including by UNHCR, not only looking at internal relocation, the changes to 'social group' or the way it has been interpreted, but also comments made by the previous panel that talked about effective protection and who can provide effective protection, and we certainly do not feel that this bill includes a reasonable level of what is effective protection. We believe it should be looking more closely at state protection. We do not think international peacekeepers, for instance, could be considered effective protection, given that they do not have a mandate, as noted previously, and they are not time-bound. So sending somebody back to a situation where they are supposed to be protected by peacekeepers who could be gone tomorrow would be completely inappropriate. Also, we have serious concerns with the amendments around modifying behaviour as well, and we have seen how that has been interpreted in the past, and the fact that—

Senator HANSON-YOUNG: Can you expand on that a little bit? What is the reference to 'modifying behaviour'?

Dr Thom : Well, I think the way we have seen it in the past—which, thankfully, is no longer the case—has been in situations where people have claimed persecution on the basis of their gender, or whether they are homosexuals or not, and they are told that if they modify their behaviour then they will no longer be persecuted.

Senator HANSON-YOUNG: If you are being persecuted because you are gay, just stop being gay?

Dr Thom : Stop being gay. I think the explanatory memorandum makes it clear that it will not impact on people who are homosexual. However, other groups will be included and we are fearful that—given the limitations in terms of being able to check the way decision makers have to interpret this part of legislation—this will creep in a negative way and that we will see particular groups, who would otherwise be recognised elsewhere, fail to be recognised in Australia.

Senator HANSON-YOUNG: Are there other elements of protection that, perhaps, would capture the situation for somebody who is persecuted because they are gay? Let us try another one. What about a pro-democracy supporter in Iran? Are they just expected to back the government?

Dr Thom : Political opinion and religion—those sorts of things are excluded.

Senator HANSON-YOUNG: What about if you are a journalist? Should you just stop writing stories?

Mr Mojtahedi : That could be a problem.

Senator HANSON-YOUNG: There are a number of journalists detained in Nauru at the moment precisely because they wrote about the last election in Iran. They covered the pro-democracy supporters.

Mr Mojtahedi : The journalist is an interesting issue. The journalist is an issue that was considered in the High Court by a case called SZATV—if I am not wrong, but if I am wrong I will correct that. That was a case where the High Court said that you cannot expect a person to go and modify their behaviour in terms of what they do. A journalist is a journalist, and you cannot expect them to go and do something else.

Senator HANSON-YOUNG: And if they are being chased down, tortured or persecuted because of something that they have written—well, they have written it. Whether their hand is cut off or not, it is still published on the internet somewhere. How do you say, 'Oh, it wasn't me'?

Mr Mojtahedi : I suspect that there might be two different issues there. One issue is conduct already engaged which creates problems in the future. But I suspect—I hope—that what this bill is trying to address is not that, but that it is more, 'There is no concern about you at the moment in your country, but that will remain if you return. Just don't do what you were doing.'

Senator HANSON-YOUNG: Right.

CHAIR: I am not very courageous. If I were a journalist, I would say, 'No, no, I do not want to be a journalist anymore. They would kill me.'

Mr Mojtahedi : You might say the same thing if you held a particular religious view. It is very easy not to walk around and attend a mosque or synagogue if you know that that would put you at risk. That is the point that the High Court made in the famous S395 case. You cannot expect a person to act discreetly to avoid persecution. That is what the convention is there to protect.

Mr Power : In fact, in the Asylum Seeker Resource Centre submission, they give a case study of someone from Pakistan who was ultimately given protection by the RRT. The basis of his claim for protection from persecution was the threats that he received because he was involved in the education of girls. I suppose one interpretation, which they suggest in their submission, is that he could safely go back to Pakistan and forget all about his perspectives on equal access to education and just focus on educating boys. It would be interesting to ask the department—

CHAIR: Are you saying that the Pakistan government does not allow teachers to teach girls?

Mr Power : The Pakistan government in particular parts of the country does not provide adequate protection for people who are under—

Senator HANSON-YOUNG: Like that young girl who got shot in the head.

CHAIR: So it is not an official threat. It is an unofficial threat to their life and safety.

Mr Power : If you look at the situation of many refugees around the world, many of them are not being persecuted by governments. They are being persecuted by others—

CHAIR: By their own people.

Mr Power : by the Taliban. And you see this again and again. In Pakistan in particular—Christians in Pakistan and people from other religious minorities, like Ahmadi Muslims, are commonly accused of blasphemy. Most of the persecution that they face is not actually conducted by the government, but the government refuses, in effect, to offer them protection. So the question is not only: is the state is persecuting someone? But if the state is not and somebody else is, is the state actually prepared to intervene to protect their own citizens?. This is the basis of many refugee claims around the world, particularly a growing number in countries such as Pakistan.

CHAIR: Thank you. I would like to give Senator Collins an opportunity for some questions.

Senator JACINTA COLLINS: My only question is to ask Dr Thom for the case study.

CHAIR: That was my question!

Senator JACINTA COLLINS: Well there you go!

CHAIR: I beat you to it before!

Senator JACINTA COLLINS: I do not have anything further, thank you.

CHAIR: Let's have the case study and then if you have any urgent questions, Senator Hanson-Young, you can, but we really do need to—

Senator JACINTA COLLINS: I am keen to get to the department.


Dr Thom : It is a useful case study to highlight a number of issues. It involves an Iraqi man who is currently seeking asylum in this country. He was very senior in the anti-terror division of the police. He undertook counterterror training. I am holding a picture of him with coalition forces training him in anti-terror activities. Because of his work with the—

CHAIR: Did you say Iran or Iraq?

Dr Thom : This was in Iraq. He was an Iraqi policeman. Because of his work with the coalition, he received a number of death threats. He stayed with his family until there was an assassination attempt on him, at which point he fled. He felt that, given his profile, he would be best to get protection in one of the coalition countries who had trained him and on whose behalf he was working. Hence he came to Australia. He was then unfortunately caught in limbo.

Senator JACINTA COLLINS: How did he come to Australia?

Dr Thom : He arrived by boat. He is part of the legacy case load waiting to put his case—

CHAIR: If he goes back now, he could work with the Australian and American troops currently in Iraq.

Dr Thom : Let me get to that. Thinking that his family would be safe if he left, he left them behind in Iraq. Unfortunately at the beginning of this year the extremists caught up with his family. They threw grenades into his house. At that point his wife and children, two young girls—and could the secretariat please provide these pictures to the senators—were impacted. The wife subsequently died after eight days, having received serious burns to her body. One of the young girls also received serious burns to her body. The other young girl was not harmed. As soon as they were out of hospital, his sister took them to Turkey and in Turkey they approached UNHCR, who on the merits of their case recognised them as refugees and decided that because of their situation and the impact on them from the violence in Iraq they were in need of resettlement and obviously decided to refer them to Australia. That is where it stopped because our great fear is that if the referral is formally made the Australian government will reject them. So we are still hopeful that we will be able to—

CHAIR: Because the husband arrived by boat?

Dr Thom : Because the husband arrived by boat. If he is granted a temporary protection visa then there is an absolute prohibition on ever reuniting—

CHAIR: This is a flippant question in a matter that is very, very serious, but why didn't he go to the UNHCR in Turkey?

Dr Thom : He felt that because of his profile it was safer for him to get to a country whose coalition forces he had worked with and that it would be better for him to reach—

CHAIR: Thanks, Dr Thom. I am sure there are 1,000 other similar cases of tragic stories.

Dr Thom : There are probably 30,000 other cases that are going to be impacted if this legislation goes through.

Senator HANSON-YOUNG: So the two children are on their own now?

Dr Thom : They are with their aunt.

Senator HANSON-YOUNG: Are they still in Turkey?

Dr Thom : They are still in Turkey, yes. The UNHCR has identified Australia as the best country for them to be referred to. But this legislation will tie the hands of the UNHCR to refer vulnerable children, vulnerable women and other family members. We do not know how distant those family members have to be in UNHCR's work when only one per cent of the world's refugee population are ever going to get a resettlement referral.

Senator HANSON-YOUNG: Is the father on a bridging visa?

Dr Thom : He is on a bridging visa with no work rights.

Senator HANSON-YOUNG: So he is not allowed to work. Because of the freeze on applications, he has been in limbo for—

Dr Thom : Two years. He has not seen his kids in two years.

CHAIR: For the lawyers amongst you, would the minister be able to intervene to say, 'Yes, we'll take the two children'?

Dr Thom : Yes, he can.

CHAIR: Under the new legislation?

Dr Thom : Even under the new legislation. But it is very clear that that is not going to happen.

CHAIR: I will ask you all a question I have asked others here. Do you ever refer cases like that one, for example, to your local federal member or senator to ask, 'Can you approach the minister with this thing and see if you can attract the minister's attention to focus on this particular instance?'

Dr Thom : Yes, we do, but when it is a non-compellable discretionary power we do not know what impact that has. We would hope that he would listen to his colleagues, but—

CHAIR: I often wonder whether a minister listening to a question at estimates, for example, might not perhaps sometimes be more effective. It might be a more effective way of drawing attention than going to the MRT, the IAA or whatever. But that is just—

Senator HANSON-YOUNG: That does not seem like a very fair system, though, does it? There is a lot of rhetoric coming out of the coalition about fairness and order, and yet you are saying, 'You can win the lottery if you can get a senator to raise your issue in estimates.'

CHAIR: Part of the job of members of parliament is to make submissions on behalf—

Senator HANSON-YOUNG: Yes.

CHAIR: But it does not seem to be a thing that is taken advantage of.

Mr Mojtahedi : We do it.

CHAIR: You do?

Mr Mojtahedi : We ask clients to approach their local members, particularly for letters of support or to see if they are willing to approach the department to see how quickly a matter—

CHAIR: To approach a minister.

Mr Mojtahedi : Correct.

CHAIR: Which, as I say, I have done—not always with great success! But sometimes it is a way in particular cases where I am sure the minister would be moved.

Mr Mojtahedi : I should say that local MPs tend to refer more matters to us than we do to them, though.

CHAIR: Do they? Okay.

Senator JACINTA COLLINS: It would depend on where a case was at.

Senator HANSON-YOUNG: Yes, that is true.

Mr Mojtahedi : Indeed.

CHAIR: Thanks very much, gentlemen. I am sorry we have had to curtail this. We are very time constrained and we do want to move on in the program. Thanks very much for your submissions, which we have looked at, and for your attendance here today. It is appreciated.