People are not a Business

As a service provider under the Department of Immigration and Multicultural Affairs’ (DIMA) Immigration Advice and Application Assistance Scheme (IAAAS), I was recently invited to attend the West Australian launch of DIMA’s Client Service Improvement Programme – ‘People Our Business’. One year ago, the revelations of the Palmer¹ and Comrie² Reports exposed DIMA’s “serious cultural problem”³. The Department now summoned its “key stakeholders” to hear about its much-heralded “cultural-change”.

Proceedings opened with a cursory nod from the State Director to the “recent unpleasantness” which had precipitated a “tumultuous period” for DIMA. As the PowerPoint flashed the question, “Where have we come from?”, the First Assistant Secretary took the microphone to assure us that over the past twelve months the Department had acknowledged and confronted its myriad administrative failings - failings which culminated in the unlawful detention of an Australian permanent resident and the unlawful deportation of an Australian citizen - and had embraced an unprecedented process of self-examination and reflection. The slideshow peremptorily clicked over to a question with which the presenters appeared much more comfortable - “Where are we going?”.

My view of DIMA is inevitably jaundiced given that most of my dealings with the Department are in my capacity as representative of that most contentious and maligned species of Australian visa applicant - the “asylum-seeker”. My clients are variously known as the “illegals”, the “queue jumpers”, the “boat people”. As such I have had to come to terms with the fact that the outcomes I can achieve for those clients are gravely limited by our domestic legislation, as it impacts (or subverts) the operation of the United Nations Refugee Convention, in Australia. I will not endeavour here to add to the already voluminous debate surrounding the ideology of “border protection” which has underlain the progressive amendment of Australia’s Migration Act in recent years. Nor will I attempt to canvass the many high-profile DIMA blunders already so ably catalogued by rolling media headlines. The question I seek to explore is one I ask myself and my colleagues everyday – One year on, is DIMA “cultural-change” more than just a press release? Does it actually exist?

The findings of the Palmer Report⁴ released in July 2005 set in train the DIMA “cultural change” process.  Although ostensibly confined to an investigation of the circumstances of the unlawful detention of Australian permanent resident Cornelia Rau, Mick Palmer drew a wider bow. The “serious cultural problem” he identified was one which necessitated “urgent reform”. The culture of the Department was “overly self-protective and defensive, a culture that was largely unwilling to challenge organisational norms or to engage in genuine self criticism or analysis.”⁵.

New revelations with respect to the unlawful removal of Australian citizen Vivian Alvarez had overtaken Palmer’s investigation mid-stride. Under the auspices of the Commonwealth Ombudsman, Neil Comrie was commissioned to take up where Palmer left off. In his report released in September 2005, Comrie concurred with Palmer’s findings with respect to the systemic problems within DIMA⁶. Comrie expressed dismay with respect to an organisational culture that allowed the mistake which led to Ms Alvarez’s deportation in 2001 to go undetected until 2003 or 2004, and then allowed its consequences to be ignored until its inadvertent exposure in 2005:

It is difficult to form any conclusion other than that the culture of DIMIA was so motivated by imperatives associated with the removal of unlawful non-citizens that officers failed to take into account the basic human rights obligations that characterise a democratic society.

For some DIMA officers, removing suspected unlawful non-citizens had become a dehumanised, mechanical process⁷.

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Where have we come from? I was first exposed to the workings of the Department as a student volunteer at a community legal centre. It was there that I met and heard the stories of the Afghan and Iraqi “boat-people”, the human faces that belied the hysteria of the Tampa and “children overboard” headlines. As “unauthorised arrivals” who were subsequently determined to attract Australia’s protection obligations under the UN Convention, these bona fide refugees faced a thirty month wait on Temporary Protection Visas (TPV) before their claims for permanent protection would be assessed.  Whereas I would steadily harden myself to the implications of the operation of the TPV regime as embodied in law, I remained unprepared to reconcile myself to the further human toll the administrative processes of the Department itself would take. The mistakes, the incompetence, the interminable delays, and the obstructiveness which characterised the Onshore Protection process would ensure that most TPV holders would be granted permanent residency in Australia not in three years, but rather five or even six years after their arrival by boat. While they waited for the opportunity to go through the refugee determination process a second time, their wives and children floundered offshore. Some of my clients lost wives and children to the same enemies they had fled while waiting for the Department to do its job.

It was not however until I qualified to go “on the record” for clients that I was confronted by the full brunt of DIMA obstreperousness. Once our clients secured permanent protection and the right to sponsor their wives and children to Australia, the new battlefield became that of family reunion.  Among the many damning findings of the Palmer report is one that particularly resonated with my now day-to-day experience of the Department:

9. DIMIA officers are authorised to exercise exceptional, even extraordinary, powers. That they should be permitted to do so without adequate training, without proper management and oversight, with poor information systems, and with no genuine quality assurance and constraints on the exercise of these powers is of concern. The fact that this situation has been allowed to continue unchecked and unreviewed for several years is difficult to understand⁸.

One of my more jaded colleagues once likened DIMA to a corrupt third world country. DIMA officers do indeed wield extraordinary and largely unchecked power. In the humanitarian and refugee setting, it is not mere hyperbole to suggest that the power to grant or refuse a visa may be power over life or death. Given that appeal avenues in respect of refugee family reunion are in many instances blocked by law and in others wholly impracticable, it is up to the advocate to make sure DIMA gets it right the first time. All too often it falls to the advocate to educate poorly-trained DIMA decision makers as to the law and policy they are charged with administering. Some are more receptive than others to correction. When you find yourself celebrating or bemoaning the name of the DIMA officer assigned to your case, when your advice to clients differs according to the embassy or consulate that will decide the application, you realise the full extent of the farce that is consistent administrative decision making.

When faced with an unreasonable, obstructive decision maker bent on some erroneous wrong, the advocate has little choice but resort to a wheedling strategy of escalation. You attempt first to pander to, then to cajole, then perhaps to shame the decision maker into a decision in line with law and policy. You hope at least to learn their name before they cut you off. When all else fails, you climb your covertly-obtained DIMA organisational chart until someone “further up” responds to your email. You try and make it harder for the Senior Migration Officer, the Principal Migration Officer, the local State Director, the Programme Director in Canberra or the Member of Parliament to ignore you than to pull rank on the recalcitrant officer. You keep a paper trail for the Ombudsman’s complaint you will never have time to write. You keep a record of the reasonable people you stumble across who are willing to “stick their neck out” to correct the mistakes of their colleagues. But you know that in the game of “musical chairs” that is DIMA, the next time you need them they will have been seconded elsewhere. You learn to cultivate decision makers and to ingratiate yourself in order to propel your client’s cases forward. You force yourself to say “Thank-you” when they finally do their job.

Ironically it was during the course of one of the hardest family reunion battles, that I caught my first glimpse of the bright, shiny face of DIMA “cultural-change”. This same case serves as a good example of bad, inflexible administrative decision making which had heinous consequences for a child living in the most vulnerable of circumstances. My client was an Afghan Hazara man who fled the Taliban regime and arrived in Australia by boat in 1999. Just prior to leaving Afghanistan his elder brother had been killed by the Taliban and my client took responsibility, by operation of custom, for his brother’s eight year old son, who he was then forced to leave behind. It was not until five years after his arrival in Australia that my client was granted a Permanent Protection visa, in 2004, and finally had standing to sponsor his orphan nephew for migration to Australia.  By this time the child was living with, and caring for, his elderly grandmother, my client’s mother, in a rented room in the makeshift refugee settlement that is “Hazara Town” in Quetta, Pakistan. My client lodged an application for a Child visa at the Australian High Commission in Islamabad. One month later, the child woke up to find his grandmother dead. He was now completely alone.

The visa application was eventually refused by DIMA Islamabad seven months after it was lodged. The reasons cited for the decision were two fold. Firstly, DIMA Islamabad eschewed outright the evidence of Australia’s foremost expert on Afghanistan, Professor William Maley of the Australian National University, in respect of customary adoption and child custody practices among the Hazara people of Afghanistan. The decision maker chose to rely instead on undisclosed, apparently verbal advice from an unnamed person they had rung up at the Afghan Embassy in Australia. 

Secondly, DIMA Islamabad was not satisfied that the child’s parents were “dead, of unknown whereabouts, or permanently incapacitated” from taking care of him.
The problem was of course that there was no evidence we could provide. It was self evident that no death certificate was available in respect of the child’s natural father. The Taliban did not issue death certificates in respect of the people they executed, and no retrospective acknowledgment was available. The fact and circumstances of the child’s natural father’s death had already been accepted by the DIMA in so far as they formed a substantial part of my client’s claims for protection as a refugee on his arrival in Australia in 1999.

There were no means available by which my client could contact the child’s natural mother, or even ascertain whether she was still living. As was customary, the child’s natural mother returned to her own family when her marriage ended, leaving the child in the care of her husband’s family. However unpalatable it may be to our western sensibilities, her survival in that society depended on her remarriage. The child of a previous marriage would not be acceptable to - would simply not be fed by - a new husband and his family. In normal circumstances, searches of government registries, telephone directories, electoral roles, and advertisements in newspapers, may be undertaken in support of an assertion that a person is of unknown and unascertainable whereabouts.  There were no such mechanisms available in respect of rural Afghanistan in 2004 and 2005 and 2006. The child was denied a visa simply because we could not provide particular evidence in circumstances in which that particular evidence would be unattainable regardless.

When the Migration Review Tribunal (MRT) affirmed the DIMA decision on the same basis another seven months later, we secured the assistance of pro bono counsel and took the matter to the Federal Court. Although we remained confident of ultimate success, the clock was ticking. Like most Afghan refugees, the child had no lawful status in Pakistan and remained in constant fear of the Pakistani authorities. He had already spent over twelve months fending for himself. On this basis, counsel for DIMA agreed to an expedited timeline to hearing. Nonetheless, given an impending court recess and substantial decision backlog, we anticipated at best a further six month wait for the Federal Court decision.

Then, just two days before the hearing, DIMA made a virtually unprecedented decision. DIMA chose not to contest the Federal Court application. Consent orders were drawn up to remit the matter back to the MRT for its reconsideration. After a now one and a half year battle in respect of this one child, I saw the first glimmer of “cultural-change”. Three months later, we had the right MRT decision on exactly the same evidence. Having waded through a further three more months of red tape back at DIMA Islamabad, the child was granted his Australian visa. Two years after we started the process, and seven years after my client’s arrival in Australia, his orphan nephew came through the gate at Perth airport.

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Where are we going? The glossy DIMA pamphlet distributed at the launch tells us that there are three prongs to DIMA’s post-Palmer “client-focused culture-change agenda”:

• Developing and maintaining an open and accountable culture;
• Promoting fair and reasonable dealings with clients; and
• Ensuring well trained and supported staff.

These modest principles are said to be encapsulated by the new DIMA ‘tag-line’ ‘People Our Business’. The words “People our Business” now feature on DIMA stationary and all manner of other corporate-issue paraphernalia – from badges to pens to drink coasters to screen savers. On its face, DIMA’s chosen moniker appears to reflect the economic imperative which underlies the grant of most permanent Australian visas. The “Economic Entry” migrant classes – comprising Australia’s skilled and employer sponsored and business investment migration programmes – account for the vast bulk of Australian migrants. In a time of chronic skill shortages, facilitating the entry of skilled people into Australia is indeed a matter of good business. But what acknowledgment does the new DIMA catch-cry make of family or humanitarian entrants to Australia? At the risk of glibness, I think it is unfortunate that “People Our Business” could equally well befit any self-respecting concentration camp or people-smuggling operation.

Semantics aside, what does “cultural change” actually look like? However grateful I am for an ever increasing willingness on the part of the DIMA hierarchy to mop up the mistakes of its officers, I remain hopeful that “cultural change” will eventually actually prevent those mistakes in the first instance. There are positive signs. Over the last few months, advocates have enjoyed unprecedented access to the DIMA hierarchy. The policy makers now want to know what we think about their processes, and to understand their implications. On the coal face of decision making, there has been a massive personnel turnover. Many of the names I bemoaned, once so entrenched, have disappeared. Relatively cheery decision makers now answer my telephone calls and emails. They identify themselves. The decision makers themselves express relief that, “We are not like that anymore”. My own day to day experience of the DIMA is of course an imperfect gauge of the extent of “cultural-change”. I look forward to having my cynicism further challenged.

* The views expressed are the writer's own and do not necessarily reflect those of The Catholic Migrant Centre or C.A.S.E for Refugees.

1. M. Palmer, Inquiry into the Circumstances of the Immigration detention of Cornelia Rau: Report.  Commonwealth of Australia, Canberra, July 2005.
2. Commonwealth Ombudsman, Inquiry into the Circumstances of the Vivian Alvarez Matter Report by the Commonwealth Ombudsman of an inquiry undertaken by Mr Neil Comrie, AO, APM (Report no. 3 of 2005), Canberra, October 2005.
3. Palmer, p ix.
4. Palmer.
5. Palmer, p ix.
6. Comrie, p 31.
7. Ibid.
8. Palmer, p ix.