WHEN THE ANSWER IS NO

Getting an asylum decision wrong has life-and-death consequences, so fair reviews ought to be part of any robust justice system. One teenager’s experience shows how arbitrary and capricious it can be in Australia.

Episode 5 / Arman’s story

Words by Lauren Martin · Art by M Jafari

HE PLAYED SOCCER with the exuberance of a boy at the cusp of adolescence, which is what he was. Everyone in the village knew his name. His house was newly built, with a garden and two storeys –­ it was big, but because he was still little, he shared a room with his sisters.

Now, years later, he smiles as he reaches for the fading childhood memories of when he was simply happy. Before he found himself alone in his father’s pharmacy, where he would eagerly help out. Before a man from the Taliban opened the shop door and set in motion a series of incidents that led to the boy growing up alone and far away, in Australia’s asylum system.

That is where another series of incidents led the now young man into what one longtime government official calls ‘a meat grinder’, the refugee appeals system.

For now, he is living in Western Sydney with his Australian girlfriend of more than four years, holding down a part-time construction job and a university scholarship, studying engineering, which suits his very practical nature. He likes to make sense of things, to make them solid. He understands too well how much of his own life story defies logic, and how precarious is his place.

  • Arman: On village life

    'Life the village is different compared to live in the city – everyone knows each other, everyone is kind of connected to each other. Everyone gets together, and they had so much fun. And before this destruction happened, everyone had a good time. Whoever was doing farming, they were doing farming and coming back to their family, you know. But, right now, I'm pretty sure whoever was there, they are somewhere that they don't want to be. Because ISIS is, basically, they are all focusing on killing Hazara in Afghanistan.'

The kids who came to Australia

WE’LL CALL THE YOUNG MAN Arman, because, stuck as he is in Australia’s ‘meat-grinder’ of an appeals process, being identified could work against his prospects for protection in Australia. Here, it’s better that no one knows his name.

Sarah Dale met Arman years ago. She is the Centre Director and Principal Solicitor at the Refugee Advice and Casework Service (RACS), a free legal service in the state of New South Wales that, as a rising number of boats arriving in Australia wreaked political panic in late 2013, started a program to help unaccompanied children. 

The Australian asylum system wasn’t ready for the kids, nor the many other people on the boats, so government officials focused at first on just completing their basic health, identity and security checks. Then, some of those asylum seekers, kids and adults alike, were sent offshore to the remote Pacific islands of Nauru or Manus. When those island centres filled up, other people seeking refuge were sent to detention centres around the vast Australian continent and, eventually, they were delivered into cities, to make their own way while they waited for the Minister to let them file their full application for protection.

Lifting the bar

Whether they are living in an immigration detention centre, community detention or on a BVE, each member of the legacy caseload faced a statutory bar on applying for protection. This meant they were unable to lodge a protection application until the Minister decided to ‘lift the bar’ by sending them a letter inviting them to apply.

The Minister began lifting the bar for some legacy caseload members in 2015. But for many, the bar remained in place for far longer — as late as December 2016

All around Australia, youths without their families became part of the RACS program. It was designed in the knowledge that trust is essential before traumatised people can talk openly about what has happened to them. These kids were going to need time, to deal with what they otherwise were trying to get over, get past. Time to hang out, in places teenagers felt comfortable, with people who would help them slowly put down the asylum-claim statements that would determine their future.

That’s how Dale came to watch Arman and other children, mostly boys, grow up.

Marriage, babies – typical life events happened for other boys like Arman. They had fled similar circumstances, each with their own particular story of horror but with awful commonalities.

Arman is Hazara, an ethnic minority recognised as persecuted in Afghanistan throughout much of the 20th century and, more recently under the Taliban and then Islamic State . Hazara people are Shia Muslim, unbearded and often secular, an intellectual community in an increasingly extremist Sunni Islamist region. More Asian in appearance, Hazara people’s facial features also tend to be easily physically distinguishable.

Brutal attacks against them have proliferated for years, in Kabul and outside urban areas; a 2016 Human Rights Watch report said, ‘ISIS has stepped up its horrific and unlawful attacks on Shia public gatherings, making no place safe’. Now Arman hands over his phone to show a gruesome video uploaded weeks before our interview, where bombs blew apart a wedding party.

The risk of simply being Hazara in Afghanistan is well understood. Hazara people claiming asylum in Australia have overwhelmingly been recognised as refugees. Former refugee status decision-maker Shaun Hanns, who worked for Australia’s Department of Immigration and Border Protection (now Home Affairs) for five and a half years, until 2018, said Hazara cases were considered straightforward. 

’If you're a more seasoned case officer, you're likely to be given more challenging or unusual cases, whereas people just starting out in the department will do what we'd consider less taxing cases… [with] the Hazara caseload, the overall assessment reached tends to be pretty standard.’ Rather than the particulars of your personal circumstances, Hanns says, for a decision-maker ‘it'd be more about your assessment about what the conditions are like in that country, and... whether you believe that would be risky enough to grant people refugee status.’

Arman might have expected the standard, positive outcome.

Wasted years and unmarked days

What happened on that day the man walked into his father’s shop is not something Arman talks about publicly. His family at first brushed it off, until the threats grew more imminent and menacing. 

Surrounded by the Taliban, village kids as young as six, including Arman, had seen people die. They’d been warned to keep their heads down riding the bus, where Hazara people were often singled out, marched off, searched, roughed up. ‘Every day, you are hearing about torturing,’ Arman recalls. 

Parents and children alike knew the danger always around beyond the village. Now it was focused inexplicably on the boy minding the shop for his dad, the village pharmacist, an occupational hazard when living among warlords suspicious that medicines came via foreigners (read: enemies). The boy alone in the shop was given a message, and as time went by and the message went unheeded, the Taliban warnings became less subtle.

So Arman was sent to Pakistan, then onto Indonesia, where the boy got to the office of the United Nations High Commissioner for Refugees, UNHCR. He applied for refugee status and he waited, and waited, alone, wasting, as months of his early adolescence dragged by in slow-motion. Getting no answer, going nowhere. 

Australia had not been part of Arman’s plan. But there was no stability for the boy in Indonesia; no home or study or work, and few options. So Arman went with the smugglers who set for Australia, a place not much covered in his village school, though his history lessons had spanned thousands of years of Afghan and Western civilisation. 

Are asylum seekers who travel to Australia without a visa ‘jumping the queue’?

There is no ‘queue’ for people seeking asylum. There is a common misconception that if refugees just waited in camps overseas, they would eventually be resettled, but people fleeing harm do not always get to choose where they travel to. There is also no guarantee of resettlement. Fewer than 1 per cent of the world’s refugees are resettled annually.

For these reasons, international law states that if a person enters a country without a visa seeking asylum, they should not be treated as illegal or be subjected to any disadvantage.

For more information see the Kaldor Centre’s factsheet on resettlement. You may also be interested in this Refugee Council of Australia analysis of global resettlement data from 2004-2018.

History shows that wealth does not protect you from persecution, and nothing in the Refugee Convention discriminates between rich and poor. Arman had enough money from his family; his father could have, would have, paid more to help him get to safety, before the patriarch and the rest of the family had to sell everything and flee across another border. 

The boy had never seen the sea before. Never been on a boat. By the time the Australian Navy rescued him and took him to the detention centre on Christmas Island, Arman was 13, or maybe 14 years old. In the village he’d left behind, your abilities determined your next steps in life, not your age or your birth day, which no one marked. When Afghanistan set about conducting its first census in 2014, the government encouraged people in its far-flung valleys and villages to choose a surname and a birthdate, because few had ever used such things. 

Arman says he was born ‘in the traditional way’, at home, far from any formal government structures, but he estimated when the Australian immigration officer on Christmas Island asked for his birth date. According to Afghan-to-Western calendar translations, Arman’s guess was only a few months out. 

‘When I was born, there was not, like, especially in Afghanistan, there wasn’t an iPhone 6 or 10 to tell you “today is this day” and “tomorrow is that…”’

A Sydney boy just waiting to start

HE WAS PLAYING SOCCER again, in the city now. Over months, the boy had been sent from detention on Christmas Island, far off Australia’s north, to detention in Tasmania, in its south, and finally to Sydney. There, he was in what’s called ‘community detention’ – permitted to live at a designated residence, subject to reporting and other requirements. He  had three months to get up to speed for Year 11 at the local high school, and again could play soccer. 

In two years, the boy who hadn’t previously spoken English gained his Higher School Certificate. His school principal encouraged Arman’s hopes of university. But his asylum claim was still stalled. Arman’s boat had been rescued in December 2012, but it was 2018 before the immigration authorities got around to assessing his application for protection. 

Through high school, he got certified for some electrical work and started on construction sites. He was desperate to get licensed, to finally study engineering – aspirations not easily fulfilled on the bridging visa that replaced ‘community detention’ once he turned 18. 

‘I was waiting, and waiting,’ he says, ‘because I wanted to do something. I wanted to go to uni or even go to TAFE, because I wanted to do construction in a professional way... an apprenticeship, or maybe get a license, even. So I was waiting for a visa just to start.’

Finally Arman got the call for the interview. When his interview day finally came, ‘I was excited – I was excited to, you know, just get out of that situation,’ he says. 

He didn’t understand, then, when the interview began with a lot of queries about the birth date he’d estimated all those years ago on Christmas Island. 

He expected to have his identity details checked, but the officer zeroed in on the date in a way that took him by surprise. Arman recalls his confusion: ‘The immigration officer just kept telling me, “How does this birthday work? What did you do to this birthday?” I said, “I didn't do anything to this – I mean, what could I do to this?” But I mean this is not... it's not even a reasonable question… but they just focus in on trying to make some question out of nowhere.’

Challenges of obtaining identity documentation

The Department of Home Affairs emphasises that information about identity, nationality or citizenship is essential to assessing a person’s claim for protection, and completing character and security checks.

But the nature of forced migration means that many people who need protection may not have access to identity documentation for various reasons. For instance:

  • Refugees fleeing from persecution by their home government may be unable to obtain a passport or other official documentation from officials.
  • Refugees who are not recognised by their home governments as citizens may be refused documents. For example, Feili Kurds are stateless, and are not issued identification by Iran.
  • Refugees fleeing persecution may strategically choose to travel without documentation in order to avoid being identified as they leave their country to reduce risk to themselves and their family.
  • Sometimes asylum seekers are advised by people smugglers to destroy their documentation to get rid of any paper trails that may incriminate them.
  • Refugees who are fleeing from rapidly deteriorating conditions may simply not have the time to apply for documentation.

Former immigration department officer Shaun Hanns explains the two perspectives he observed among his former-fellow decision-makers: ‘[Either] you assume that they are refugees and that they're not lying, or... you assume that you have to actually prove that status yourself, and every detail is questionable until proven otherwise.’

Arman was flustered and remembers fighting back anger; he wonders now if the aim was to provoke him. He was rattled, and then came a new suggestion.

‘They [said to] me, “You know, obviously you can’t go back to your village because it's surrounded by Taliban… but you could live in another area of Afghanistan.”

‘And I just, you know, I just said to them, “Look, I mean, I sort of said everything from the beginning and I will say it again... if I go back, anywhere I go I have the same situation... a different place, still this is the same situation going on.”’

The interview was soon over.

What can – and what can’t – be reviewed

From his experience as a decision-maker, Hanns says everyone is usually confident of the outcome by the end of the interview. What’s difficult, he recalls, is ‘when you’re put in a position where you have someone that you've met, you've spent a little bit of time with... and you know what's the best outcome for them – it's always going to be to get the visa.

‘Because if they don't get that visa, they're going to end up in this kind of meat grinder of a system that we have, where you see people, for six or seven years, kind of going through appeal after appeal, and how negatively that impacts on their mental health. 

‘You know  that's what's going to happen to this person if you say no.’

What asylum seekers can expect at the interview

Whether they are living in an immigration detention centre, community detention or on a BVE, each member of the legacy caseload faced a statutory bar on applying for protection. This meant they were unable to lodge a protection application until the Minister decided to ‘lift the bar’ by sending them a letter inviting them to apply.

The Minister began lifting the bar for some legacy caseload members in 2015. But for many, the bar remained in place for far longer — as late as December 2016

The immigration official who interviewed Arman said no, rejecting his claim for protection by citing Department of Foreign Affairs (DFAT) guidance that there were areas of Afghanistan to which it was safe for him to return. 

‘It was Mazar-i-Sharif, just the other side of Afghanistan,’ Arman says, still incredulous, years later. ‘I don't know anyone [there]. I could, I could go there, but the problem is, we have the same problem... it's exactly the same situation in every city, and even in Kabul... Hazara people [are] struggling to live there… Even if they have any wedding, they kill.’

The outcome seared Arman even deeper because he’d seen so many of his friends’ cases go the other way. ‘Most of them, they went okay. We are from the same tribe, just not the same area, so it’s the same situation for everyone. How come this one person is right and this one person is wrong?’ 

The arbitrariness of it confounds him. He tries to process it through his logical mind.

‘I did give them all the information, all of the details, but you know… it really depends who’s sitting on the chair, people have different opinions, people have different… perspectives of judging, so, I mean, it’s really hard… everyone cannot understand what is actually going on. It really depends.’

Time isn’t making it any easier to accept that his outcome was so unusual; instead, despair grows. ‘I mean, yeah... I’m finished,’ he says. ‘Sometimes I just get lost and I don’t know what I am doing – I mean, not sometimes, all the time.’

Merits review vs. judicial review

All of his efforts to contribute in Australia, he thinks, should count for something. But no one wants to hear about that – not in the first interview or at any other stage in this ‘meat grinder’ of an appeals process. RACS Senior Supervising Solicitor Alison Ryan puts us in the shoes of many of her clients like Arman: ‘I've gone to university, I've learnt English because I was told that's an important thing to do in Australia –  which it is. I have an Australian girlfriend. I've been working part-time and I'm doing all this community service…

‘They bring me a CV,’ Ryan says, and ‘I will tell them not to submit any of that information. 

‘That may be construed by the department that you want to be in Australia because you're a good person. And that is not what we're looking at. The only test that is applied to these people is, will you face serious harm if you're forced to return to your country?’ 

Everything is irrelevant, she explains, except ‘why he, after having not been in that country for about seven or eight years and leaving as a young child, why he would be persecuted.

‘In cases from Afghanistan, we've seen a number of young Hazara men in Australia who have done very well, who have learned English, who have started businesses, who have gone to university and have got jobs in major corporations – I've seen where that has been used against them. When the Department of Home Affairs is looking at this concept of, “Okay, if you go back to your home area, we accept that you will be killed. You're going to be killed as a Hazara and a Shia. That's a given. However, you have proved that in Australia that you've been very resourceful, that you've been able to get jobs, you've been able to move between cities, you've been able to to make a good go of it for yourself here. Therefore, I think that there's no problem for you to move to this other place in Afghanistan where you've never been. And although unemployment's high and there's lots of problems in that area, you're not going to be persecuted. And we don't think it's unreasonable for you to go there.” 

‘That's a problem,’ Ryan says. ‘So [when someone tries to give] me documents that show success in Australia, I will always tell them that that is not relevant to your case and not to include them.’

Arman also can’t include the news, the targeted killings, the Afghanistan footage from social media that keeps him up at night. It’s irrelevant, because, for a brief period years ago, some parts of the country were considered safe, and that is the time when his case was considered. Lawyer Sarah Dale says that if Arman were assessed today, the decision would be different because the DFAT country information has changed. It now acknowledges the attacks on Shia people and that Kabul is not this safe place that it was in, say, 2016

Dale explains the issue with cases like Arman’s:

“He was assessed at a time that an area was considered safe, but he would be returned at a time that that area is not considered safe — and there is no way, no mechanism to reassess that.”

In the hands of the ‘god powers’

Once, someone like Arman could have asked for a review and put his case to a second decision-maker, at the Administrative Appeals Tribunal (AAT). That is still how it works for people who arrive by plane with a visa – as a tourist, or student – and later claim asylum.

But since 2015, people who arrived by boat who are found not to be refugees are referred to a new body, the Immigration Assessment Authority (IAA). This is called the ‘fast-track’ review. There is no hearing. Lawyers call it a review ‘on the papers’, because the applicant does not appear in person and, unless there are ‘exceptional circumstances’, the IAA doesn’t consider any new information. Under the old system, where the merits of the case were reviewed, the rate of refusals overturned was much higher.

The IAA can’t grant anyone a protection visa, but it can send the decision back to be re-decided with a finding that a person ought to be considered in need of protection. In most cases, though, it affirms the negative decisions made by the initial officer. And so it was with Arman.

AAT vs IAA review

For more on this, see this article in the UNSW Law Journal, by Emily McDonald and Maria O'Sullivan.

He has a right to appeal the IAA decision. The Federal Court also hears appeals on protection visa decisions, and Arman can appeal the IAA’s decision there. 

When we first spoke, Arman said, ‘I am trying to put my appeal together by myself, I went to the court to get the documents all by myself, and, you know, sometimes they they email me, and I don’t understand what they are asking for, and it’s just…’ He puts up his hands.

There is no legal aid available at this stage of appeal, and the cost of a barrister is prohibitive – Arman estimates AUD$10,000 to $15,000 – plus, the court reviews no facts of the case, only the correctness of the process. 

In the end, the facts that Arman would want considered, about the updated situation in Afghanistan, would not be under review; it is just a check that the information available at the time was properly considered. So, the outcome would likely be the same.

Judicial review options for the legacy caseload

If an asylum seeker is denied a protection visa by the department and this decision is affirmed by the IAA, they may seek judicial review of the decision. This involves going to court to argue that the decision-maker was not acting within the scope of their power when they denied the visa.

When conducting judicial review, the court will not look at whether the decision was the most fair in the circumstances, or whether the decision-maker got all the facts correct. It will only look at whether the decision-maker made a legal error – for example, by applying the wrong criteria when deciding that the visa should not be granted.

  • Arman: On his options

    ‘You know, I have a right to go to the court. But even if I go to the court, they're not looking at what is going on [in Afghanistan], they don't do any background check, they don't do any anything. They don't check anything except, what is the error by law.’

Arman is indistinguishable from other students on campus, until, up in an airless room, he’s talking about his visa and precarious circumstances, which otherwise he tries not to think about. Emotion, tightly but barely contained, surges into his voice. ‘Because I'm a full-time student at university, I can't obviously afford to pay’ for the Federal Court appeal, Arman says. His family has long since had to abandon their comforts under the Taliban. ‘I'm struggling just to pay my rent and bills. And [at the court] they're not taking a look at what is actually going on Afghanistan.’

The only option left to him, then, seven years after he arrived, is applying to the Minister to review his application. A past Immigration Minister lamented the powers vested in the office ‘to play god’. No one can compel the Minister to use these so-called ‘god powers’, and decisions made under them are not reviewable.

‘So he would need the Minister to personally intervene and say, ‘Okay, given this change of information, and given that the area that we previously assessed as safe is now no longer safe, I will let you begin the process again. That's best-case scenario for him,’ says Sarah Dale of RACS.

‘And that feels like a particularly heinous oversight.’

Ministerial intervention

The only remaining option for an asylum-seeker who has been denied a protection visa and who has not had this overturned through merits or judicial review is to appeal to the Minister to have a visa granted to them in the public interest.

The chances of being granted a visa through ministerial intervention are slim. Department of Home Affairs advice stresses that ministerial intervention is not part of the visa process, that very few requests for intervention are successful, and that most requests are not referred to the Minister by department staff, as they do not meet the guidelines for consideration.

Current information about ministerial interventions can be found here. Typically, cases will only be referred to the Minister in unique and exceptional circumstances. However, even if such circumstances exist, intervention is not guaranteed.

Current data on ministerial interventions in protection claims is difficult to find. Since 2013, the government has stopped providing detailed statistics about how ministerial intervention request are handled.

Arman admits he is exhausted when he thinks about it. Others with his background, on his boat, had a different decision-maker, a different life. In many ways his story is like that of Zaki, who struggles with the limbo, the uncertainty of his temporary SHEV protection visa. But that one negative decision received after his first interview years ago put Arman in even more precarious circumstances.

Arman has grown up in Australia. His accent sounds Australian, but he can’t make a future with his Australian girlfriend of several years. The instability, the inability to build any life foundation, plays on his mental health. He thinks like an engineer but he can’t build anything of his life. The best he can do is keep his pain compartmentalised. He can’t focus on it, or the despair could take hold. He says he focuses on ‘doing the right thing in the community’. 

About his Ministerial application, now with Peter Dutton, Arman says, ‘hopefully there's someone who's reviewing who is a fair person’.

As he heads up the footpath, backpack full of study materials, he’s already turning his mind to something more solid than his unstable status. None of the people in Temporary has any certainty about their future, but Arman is on a knife’s edge. 

People like Arman have no choice but to be resilient, Dale says. 

‘If you think about what they've lived through versus what the government is throwing at them now – this is really nothing in comparison to escaping the Taliban. I guess that's why I get even more enraged about how Australia treats people like [Arman]. Because I see the impact of these visas and these policies and I see how it breaks people. 

‘And I think, my goodness, they didn't break under ISIS. But they are breaking in our country now.’

Podcast episode 5: When the answer is no

Listen to Arman share with Sisonke Msimang how he learned that, when you’re seeking asylum in Australia, there are no safety nets.

Hear Arman's story