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Tragedy of the Bakhtiyari Family

Tragedy of the Bakhtiyari Family

By Mary Crock

The saga of the Bakhtiyari family’s attempts to gain protection in Australia as refugees has been a long and tortuous one. A great many legal challenges have been made on behalf of the family (20 by some accounts) – all without success. The failures make the task of advocating clemency for the family a difficult one. Mondays’ editorial in The Australian describes the case as a ‘kind of lightning-rod for the politics of asylum-seekers under the Howard Government’.

The very fact that those in government are now referring to the family openly by name underscores the extent to which they have been excluded from the conventions and protections of the refugee system. Whether the family stays or goes, it is my personal view that the family’s story provides a vivid illustration of the very worst aspects of the laws, policies and procedures that govern Australia’s treatment of refugees and asylum seekers.

This is not because the Bakhtiyaris are unusual. On the contrary, their story is archetypical of the stories of many Hazara asylum seekers who have sought protection in Australia in recent years.

Ali Bakhtiyari is in many respects the Australian refugee embodiment of the common man. He left his home (the location of which is disputed) in search of a better, safer life for his young family. Changes to Australia’s laws in 1999 meant that recognition as a refugee no longer brought with it the right to sponsor family through regular migration channels. This is why he took the risky decision to engage people smugglers to have Roqia and their five children follow in his footsteps. It seems doubtful that Roqia knew where she was being taken. She certainly arrived in Australia without knowledge of the fact that Ali had made it to Australia, or that he had been accepted as a refugee.

Woomera Detention Centre

In spite of the length, danger and ardors of their journey, Roqia and the children faced the same reception as their husband and father. They were taken into immigration detention at Woomera Detention Centre in South Australia. Here again, the family received ‘standard’ treatment. Asylum seekers who arrive without visas are questioned to see whether they have a ‘protection claim’ as refugees. This involves detainees being asked a series of questions about their origins and motives for leaving a country.

Access to legal advice is only afforded to those who answer the questions posed in a way that suggests that the respondent might meet the UN Convention definition of refugee. The central problem is that the system assumes that the person interviewed understands the significance of the questions being asked so that they can make out a case for protection. In her ‘screening in’ interview (as this process is known), Roqia clearly had no notion of why she was being asked the questions put to her and had no inkling of the dire consequences of her failure to respond.

Upon her arrival, Mrs Bakhtiyari was not informed of her husband’s presence in the country, and no reference was made to his claims in the assessment of her case. Australia does not recognize the concept of ‘derivative refugee status’ in cases like these: separated families cannot use the claims of family members as a basis for their own refugee status. Roqia’s account of being a fugitive from Afghanistan was disbelieved because of her inability to recognize Afghan currency shown to her, or to describe key aspects of the geography and political structures of the region from which she claimed to have come. Few concessions appear to have been made for the educational and cultural constraints on Afghani women living in the shadow of the Taliban.

It is worth noting at this point that in late 2001 interviews at the Woomera detention centre were conducted in circumstances that can only be described as extremely stressful – both for the detainees and for their interlocutors. Indeed, the physical and psychological conditions in the detention centres during the period in question could scarcely be described as conducive to any form of quality fact-finding or decision-making. One departmental officer involved in the processing of these cases made the allegation to me that Mrs Bakhtiyari’s confusion over Afghan currency stemmed from the fact that she was shown money that would have been unfamiliar to her because it came from a part of Afghanistan controlled by the Northern Alliance.

Roqia Bakhtiyari was interviewed a second time, and was better prepared. However, the damage had been done: her more accurate answers on the second occasion were dismissed as the result of ‘coaching’ from other detainees.

Escape From Wooomera

Roqia and the children were not the only women and children left to languish in detention, their claims rejected in spite of the existence of husbands and fathers in Australia who had been recognized as refugees. If their plight was ‘ordinary’, two events intervened to catapult the family into the public eye. The first was the highly publicized escape of Roqia’s two sons, Almadar and Montazar, from Woomera detention centre and their adoption as a cause célèbre by refugee advocates. The second was the publication by The Australian newspaper of an article by a freelance journalist who had traveled to Afghanistan to ‘check out’ the Bakhtiyari’s claims.

After their escape from Woomera, the Bakhtiyari boys became instant icons for those wishing to protest against the inhumanity of immigration detention in general and the detention of children in particular. The two young boys brought home the reality of mandatory detention. No longer nameless, faceless and hidden away in the Australian desert, Alamdar and Montazer Bakhtyari’s tearful young faces were beamed into every home as they were turned away from the British consulate where they sought asylum. They became a reminder that there are innocent children locked up behind razor wire and that families have been divided by a policy that can allow some members to be recognized as refugees while others languish for years in desert camps.

The Bakhtyaris brought the ordinary injustice of Australia’s laws and policies into Australian homes. The Department of Immigration retaliated by going into damage control mode. The authorities moved to deflect criticism from a cruel system by focusing attention on the faults of the family. Roqia’s failure to persuade the decision makers of her Afghani origins became the focus for discrediting Ali and the family as a whole. Ali’s refugee status was revoked and he was placed back in detention.

The story by freelance journalist, Alistair McLeod featured on the front page of The Australian in mid August 2002 together with a large photograph of an Hazara man looking quizzically at a picture of Ali Bakhtiyari. The family might have once lived in the village of Charkh, it was alleged, but they had not been seen in the area for about 20 years. Sadly, the journalist was killed a short time after the publication of this article in a car accident. Any chance of cross-examining the author as to the accuracy of his account died with him. Later assertions that the journalist had visited the wrong village or had otherwise erred have been rejected at every level, in spite of the family obtaining a large body of evidence to show that they are from where they claimed. The media focused turned predictably from the fate of children in immigration detention to Ali Bakhtyari’s identity.

Enemies of the State

Once this story broke on the front page of The Australian, any hope of leniency for the Bakhtyari family seems to have evaporated. If it was not possible for the family to sway the Refugee Review Tribunal that there had been a miscarriage of justice, it was never going to be easy to persuade the courts that an ‘error of law’ had been committed. The family were marked as rogues. Their refusal to lie down and submit to their fate only confirmed the views of public and officialdom alike.

The Bakhtyaris assert that they have proof that they are from Afghanistan and strongly contest their vilification as mendacious opportunists. The number and voice of their supporters in the community suggest that while the government (and Labor’s Laurie Fergusson) are unmoved, many ordinary Australians have been touched by the family’s plight.

The Family are Indisputably Hazara

As a refugee lawyer, I am personally mystified by the focus that has been placed on the truth or otherwise of the family’s country of origin. The family are indisputably Hazara. Indeed, when I first saw Alistair MacLeod’s August 2002 article I was struck by the physical resemblance between the man photographed in Charkh and Ali Bakhtiyari. (I even wondered briefly whether the two were related) If the Hazaras have suffered in Afghanistan, they have not received (and are not receiving) brilliant treatment. If the Bakhtyaris did hail from Quetta in Pakistan, there is strong evidence that Pakistan is not safe for Hazaras. Many Hazras have been killed in Quetta in recent years (and months). I would have thought that the Bakhtyari family’s fame could place them in real and present danger. The children could well be at particular risk of being kidnapped or abused. This should be enough to engage a compassionate response even if the authorities are not moved to acknowledge status as refugees.

In point of fact, the family has been able to produce fairly conclusive evidence in recent weeks that they are in fact from Afghanistan. Barrister and advocate for the family, Nick Poynder provides the following commentary on the material now before the Minister for immigration:

In about December 2003/January 2004 Mrs Bakhtiyari's brother, Mazhar Ali, was deported to Pakistan. He and his Australian escorts were initially refused entry into Pakistan, but after some discussion he was allowed to enter Pakistan, from where (surprise surprise) he returned to his home in Afghanistan.Mr Ali collected a number of letters and documents to prove that the Bakhtiyari family was from that village. These included:

- Confirmation from the District Governor that Mrs Bakhtiyari and her family are Afghan citizens.

- Confirmation of the Governor of the Province in relation to Mr Bakhtiyari’s origin.

-Confirmation from the residence of a local mosque that Mr and Mrs Bakhtiyari are from the district.

-Document from the Transitional Islamic Government of Afghanistan containing confirmation from a representative of the village confirming the residency of the relatives of Mazar Ali. The document also contains confirmation from the local high school that Mazar Ali is from the village.

-Confirmation from an Acting District Governor that Mr and Mrs Bakhtiyari are Afghan citizens.

These documents were provided to the Minister's office on 8 June 2004. No substantive response has yet been received.

Then in July/August 2004 Mazar Ali travelled to Kabul and met a guy called Simon Russell, who has been working in Afghanistan with the Norwegian Refugee Council since December 2002. On 17 September 2004 Mr Russell provided a statement confirming that Mazar Ali is without doubt is a Hazara from the central region of Afghanistan. This was apparently provided to the Minister only a few weeks ago; again no response.

From what I understand of Afghanistan, it is not surprising that there has been confusion over the identification of the village. However the fact remains that Mrs Bakhtiyari's brother is from Afghanistan, ergo Mrs Bakhtiyari is from Afghanistan, ergo Mr Bakhtiyari is from Afghanistan. Ergo they have all been wrongly denied protection visas and have spent years in detention for nothing.

The Bakhtyaris’ biggest crime has been that they have embodied the ordinary pain suffered by many asylum seekers separated from family, locked up for long periods and subjected to vilification and abuse. For this they are being punished.

The Bakhtiyaris represent much about our loss of capacity to respond to pain and need with compassion. We prefer instead to characterize asylum seekers as unworthy and as a threat. When Almadar and Montazer cried at the British embassy we recognized their youth and vulnerability. They were part of us. Sitting next to their classmates at St Ignatius in Adelaide, they became a loved and accepted part of the community. Yet in the remoteness of the public discourse, the boys and their family have become literally and figuratively ‘aliens’ who we feel comfortable banishing from our shores to face an uncertain future.

Ali Bakhtiyari sits despondently in Baxter detention centre, depressed and alone. His is truly the tragedy of an ordinary man thrust into the vortex of a life of confusing and seemingly unrelenting harshness.

ENDS

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