Port Hedland is a sleepy, sun-drenched town, 1300 kilometres north of Perth. Early in September I travelled there for the fifth time, a year on from my first visit.
Each time I return it's as if I've never been away. The tranquil streets and cloudless sky must seem idyllic to someone in the right frame of mind, but whenever the heat and silence start to lull me into a pleasant daze, I remember the words of one of my friends who lives here all year round. He had trouble sleeping, he told me, because his room felt like the grave. For him, the sense of being stranded, untouched by time, isn't restful at all. It's exactly like being buried alive.
The immigration detention centre lies at the eastern end of town. The former BHP single men's quarters, now enclosed by a high fence topped with razor wire, is surrounded by ordinary buildings: a library, a school, a recreation club. This facility is known officially as a “reception and processing” centre, but there hasn't been much reception or processing going on here for a while. These days it's more like a human warehouse. Nearly everyone here has been locked up for close to three years, and many for more than four.
Four years without freedom is a long sentence in anyone's language. Some people who tell their families back home that they're still in detention after all this time are simply not believed. “Did you rob a bank?” they're asked. “Did you kill someone?” How could anyone be imprisoned for so long, just for crossing a border to ask for asylum?
There are people here who began their incarceration at the age of four, at nineteen, at twenty-six, at thirty-four. The ordinary possibilities of childhood, youth, marriage, and parenthood have either been lost to them completely, or distorted beyond recognition. There is no stage in life when a loss like this can be borne without damage; you might as well try to remove a pound of flesh without spilling a drop of blood. Worse, immigration detention does not mean serving a fixed term, with days you can count off with mathematical certainty. The sentence is open-ended.
Everyone here has been told by the government that it's safe for them to return to their homelands. Of eight Afghanis I know who've gone back, unable to bear detention any longer, six found the situation so perilous that they had to flee again. People returning to other countries have been arrested at the airport and imprisoned without charge or trial. In at least three cases documented by church groups, rejected asylum seekers returning from Australia have been murdered. That's the choice we're offering people: be delivered into the hands of your enemy, or stay here and rot in prison.
It's hard to imagine just how corrosive that kind of stress must be. Many people here are on antidepressants and sedatives. Many have been driven to self-harm. But even those who aren't plainly psychologically ill are exhausted, debilitated, by the impossible situation they're facing.
How did it come to this? Like many Australians, I used to imagine that asylum seekers were held in detention for two or three months at the most. During that time, I assumed, their claims would be given a fair hearing by someone with expert knowledge of their country of origin, and if their accounts of persecution stood up to scrutiny they would be released. If not, they would be swiftly deported.
The reality is nothing like that.
One measure of the fairness of any process is consistency. It makes no sense for two people whose circumstances are essentially the same to be treated differently, with one being accepted as a refugee and the other rejected. In the Australian system, such disparities are commonplace. There are former neighbours, brothers, fathers and sons, even husbands and wives, who have ended up divided by razor wire because of the different ways their claims have been treated.
How can this happen? The case officers who assess asylum claims in the Department of Immigration are as fallible as anyone else. If the Taxation Office can occasionally mangle the simplest financial calculations, it's hardly surprising that a complex human subject fares no better in bureaucratic hands. In the case of an asylum claim, though, it's infinitely harder to reverse an error once it's been made.
The reasons a genuine refugee can be rejected range from subtle kinds of ignorance to some fairly Kafkaesque extremes. For example, many Afghanis are told that if they had a political problem in one part of the country they should have relocated to a province where they were unknown, as if that were as simple as moving from Perth to Sydney. In fact, in most parts of Afghanistan strangers attract so much scrutiny that you might as well pin your life story to your front door. Asylum seekers who can't put dates to everything that happened to them are viewed with suspicion by their Australian interrogators, as if every culture on the planet shared our own immersion in a world of diaries and appointments. Most Afghanis don't even know their own birthdays. An asylum seeker who raises an important fact which they didn't mention in their very first interview, fresh off the boat, will be accused of embellishment or fabrication. In other words, people who've been tortured or raped, or who've spent years keeping secret the one thing that could see them killed, are expected to spill their hearts out to a total stranger a day after setting foot on our shores.
At the less subtle end of the spectrum, I know an Afghani man who was told, “Yes, the Taliban killed your father and your brother, so your father and your brother would have deserved visas, but you're safe here in front of me now, so how can you say you were in danger?” It's hard to imagine a more brutal catch-22. I also know people who've been told, “Your life would be in danger if you returned, but not for a reason covered by the refugee convention, so we don't owe you any kind of protection.”
There are institutionalised flaws in the system, such as the language tests routinely used for validating people's nationality that have been discredited by professional linguists. All of these things add up to a substantial risk that people's claims will be unfairly rejected.
A rejected asylum seeker has seven working days to lodge an appeal with the Refugee Review Tribunal (RRT). This deadline is rigidly enforced, and people who've missed it, for no fault of their own, have spent years in detention with their cases unreviewed. If the deadline is met, a single member of the RRT examines the case again, but the process is subject to all of the same flaws as the initial decision. If it were purely a matter of luck then two rolls of the dice might be better than one, but the same prejudices are often in force on both occasions. And although the RRT is supposed to be independent, former tribunal member Bruce Haigh has stated publicly that there's pressure to keep the number of favourable decisions down.
It's possible to bring a case in the Federal Court to review the way an RRT member made their decision, but the courts can't look at the merits of an asylum claim, they can only check that the letter of the law has been followed. These judicial reviews can spend years spiralling all the way up to the High Court, but if that sounds like gold-plated justice, it's not, because an ignorant or perverse decision can still be a perfectly legal one. I've read transcripts of RRT hearings where the tribunal member cracks offensive jokes, mocks the applicant, or goes off on bizarre tangents unrelated to the case. This kind of contemptuous behaviour would be clear evidence of prejudice to any ordinary person, but the judges reviewing these decisions have no power to overturn them, since no error of law was committed.
As a last resort, asylum seekers can write to the Minister for Immigration, asking for his or her personal intervention. The chances of this happening are slim.
If the government waved a magic wand and banished the right to judicial review, the detention centres would still not be empty. Several countries, including Afghanistan, will only accept their citizens back on a voluntary basis. People from these countries who fear for their life naturally refuse to sign the papers that would allow them to be returned.
There are also people who cannot be deported even when they're willing: stateless people, whose countries of birth deny them citizenship and will never take them back. In April 2003 a full bench of the Federal Court found that the indefinite detention of such people is illegal, but the government is appealing that decision, and has made it clear that it believes that people with nowhere else to go should spend their whole lives in detention.
Like thousands of other Australians, I was jolted by the events surrounding the Tampa into educating myself about the refugee processing system. Part of this education involved writing to detainees to hear their side of the story, and after months of correspondence I eventually had a chance to meet some of my pen friends face-to-face.
The first time I entered the detention centre in Port Hedland, what struck me most was the sense of overkill. Some kind of building work was in progress, so the officer at the reception desk was constantly opening and closing the electronic gates. Every tradesman's ute that came and went triggered the kind of two-way-radio traffic that you might expect if a presidential convoy was entering a nuclear command bunker.
Each time I return and spend a few hours in the visitors' yard, being beaten at chess by polite young men, or chatting with parents while their children work at colour-in books, it's utterly surreal to step out through all the doors and gates and look back on the whole pointless edifice, with the visceral realisation that these perfectly ordinary people are forbidden by law to accompany me.
If you put enough razor wire around a place, people start to imagine that whoever is inside must be dangerous. Yet there are thousands of asylum seekers living in the Australian community. Anyone who arrives with a tourist or student visa can make a claim for asylum, and they will not be put into detention. The justification for detention, then, boils down to a concept known as “immigration clearance”. This is the imprimatur of safety and reliability that supposedly accompanies anyone to whom Australia has granted a visa.
A few weeks ago a French national named Willie Brigitte, who has been accused of links to Al Qaeda, was deported from Australia. Mr Brigitte came here on a tourist visa. So much for the magic properties of “immigration clearance”.
There is no reason why people who've been in detention for a couple of weeks, let alone years, could not be investigated by the security services far more thoroughly than those who are granted visas in a matter of days by Australian embassies overseas. In fact, ASIO has made such investigations, and never found anyone in detention to be a security risk. The supposedly unbridgeable gulf between people who step off a plane with their papers in order and those who've been languishing for years behind razor wire is a convenient legal fiction, utterly divorced from any genuine security concern.
Since community safety is not the issue, what is mandatory detention really about? The government's second justification is that it needs to keep people available for the processing of their claims, and for deportation in the event that those claims are rejected.
Locking people up pre-emptively against the risk that they might go underground shows no sense of proportion about the costs involved, either human or financial. In the criminal justice system, there is at least sometimes the possibility of bail, and the Department of Immigration already has a bail-like reporting system in place for people on certain kinds of visas. Of course, people do skip bail, but what matters is not whether the system is perfect, but the consequences of any imperfection. There are sixty thousand visa overstayers in Australia, and about five hundred detained asylum seekers. If the asylum seekers were living in the community, then the absolute worst-case scenario in which every single one of them skipped bail would see the number of people at large without visas grow by less than one percent of its present value.
The third prong in the government's justification for mandatory detention is the “queue jumper” argument. Each year, Australia resettles a number of refugees who've applied to the UNHCR overseas. Because we have a fixed quota for all refugee and humanitarian visas, people who come here to ask for asylum take places in the quota from those who've been waiting their turn for resettlement, while living in hard conditions close to the countries they fled.
The fact is, people who've fled to neighbouring countries are often in very bad circumstances, but the chances of them getting onto any kind of resettlement queue, let alone being chosen, are slim. For the few who succeed, the whole process takes several years. In Iran and Pakistan, Afghani refugees are constantly harassed by police demanding bribes. One Afghani man I met told me of his brother who decided to try to stay in Pakistan, rather than paying for a smuggler to take him to the West. He ended up being arrested five times by the Pakistani police, who on each occasion would demand an ever larger sum to set him free. An Iraqi friend of mine who was resettled here through the UNHCR — a man who did exactly what the Australian government expects of everyone — spent four years waiting in Lebanon, often sleeping on the streets. He was arrested and tortured by the police, leading to serious physical and psychological damage. In April 2002 two Rwandan children who had been classified as refugees and were waiting for resettlement in Australia had their throats slit while they were sleeping in a UNHCR residence in Kenya. How can we condemn anyone for trying to avoid these kinds of fates?
In a perfect world the UNHCR would have the resources to ensure people's safety while they waited for a swift resettlement. In the mean time, we have to stop punishing people because the reality doesn't live up to that dream. In many cases, we are also punishing people who were in no position to take the kind of global view that armchair critics adopt. When a barely educated Afghani youth is handed to a smuggler by his surviving relatives in the hope of saving his life, is he supposed to argue with them about the problem of secondary movements in international migration law?
Of course, people who arrive on tourist visas before claiming asylum take places from the resettlement program too, but they're not punished as “queue jumpers” by being thrown into detention.
The government's final argument in support of detention is that it “sends a message” to other asylum seekers that coming by boat is not acceptable. The past and present Ministers for Immigration have described any proposed softening of the detention policy as “a green light for smugglers”, going so far as to suggest that releasing families into the community would see a rush of new arrivals.
Mandatory detention has existed since 1992, and it didn't stop the boats coming in 1999, 2000 and 2001. What stopped them was a naval blockade. When the SIEV-X sank in October 2001, drowning 353 people, nine years of mandatory detention did nothing to avert that tragedy.
The way to prevent people drowning at sea is to work with the Indonesian government and the UNHCR to make sure that people who reach Indonesia can have their asylum claims processed fairly, in a reasonable time, from a situation of safety. At present, people who try to lodge claims in Indonesia can face years of hardship and frustration, so it's no surprise that there comes a point when a rickety fishing boat looks like the only solution.
Early this month the Minister for Immigration, Senator Vanstone, used her discretionary powers to grant a permanent visa to Ebrahim Sammaki, an Iranian detainee in Baxter whose wife was killed in the Bali bombing. That was the right decision, but does it really require a literal connection to Bali, and a photograph of this man's motherless children among the Australian mourners, before we can feel any sense of common humanity?
Exactly the same kind of brutal extremism that lay behind the atrocity in Bali has torn at the lives of everyone in our detention centres, but a succession of bureaucratic stuff-ups and cynical political acts has seen these victims' suffering prolonged, year after year. They've been trapped behind the razor wire looking glass, where Orwell and Kafka meet Lewis Carroll, and reason, justice and compassion mean whatever a politician wants them to mean.
No one can solve the problems faced by refugees world-wide, overnight, but we can still make a difference to several hundred human lives. If we take advantage of the peace and freedom we enjoy to grant these people visas, welcome them into the community, and allow them to begin to recover from their ordeal, we will have made good use of these all-too-rare conditions, and in a small way, strengthened their power in the world.
19 November 2003