This is the submission that Webdiarist Marilyn Shepherd [0] made to the book Human Rights Overboard: Seeking Asylum in Australia [1], by Linda Briskman, Susie Latham, and Chris Goddard, which was launched in October this year. Thank you Marilyn,

Human Rights Overboard - Submission

Over the past five years a great deal has been written about the Bakhtiyari family with a great deal of it being false, sometimes made up and other times misguided without malice aforethought.

David Corlett has dispelled a good many of the myths perpetrated by DIMA with the help of the RRT members who dealt with their cases and Senator Linda Kirk has helped me tirelessly with questions to the senate estimates process and speeches calling for information and release of this family over many years. Penelope Debelle tried but was unsuccessful in publishing a good deal of the truth, the Age spiked the story, and Andra Jackson and Elizabeth Colman both tried extremely hard to have the truth told about Pakistani documents in the Age and the Australian.

Ultimately it was the honourable journalist, Paul McGeough, spurred by the Herald editor Alan Kennedy after reading Following them Home, who found the truth in Afghanistan, a truth which released the family from vilification and lies about their origins and birthright, truths the department had always known.

This story for the public record is the story of how a pregnant Roqia was treated by DIMA during that pregnancy and the theft of the baby boy’s identity and birthright by DIMA.

Roqia only had one court hearing and lost – it is s 134 of the High Court Act which denied her family reunion rights even though Ali had been in Sydney for 28 months as a proven Afghan refugee.

Roqia and Ali were reunited only in Baxter detention centre and Roqia almost immediately became pregnant after nearly four years of separation from Ali. From the beginning the pregnancy was troubled and she was sent to hospital at 11 weeks with a threatened miscarriage.

When she was five months pregnant, June 2003, she asked to be allowed to live in the Woomera housing with the children. Philip Ruddock ordered that this not be allowed because of the “high security risk” of some members of the family. He meant the boys Alamdar and Montezar who had escaped Woomera in June 2002 and Roqia who had escaped months earlier.

Eventually Roqia was allowed into the house but only with the three girls, the boys were considered too much of a flight risk and were “too old”. It was peddled in the family court hearings by Mr Charles Gunst QC that she was in the housing because Ali was beating her. The official DIMA record, given to the committee, shows that he had pleaded to get them out of Baxter and was pleased that at least some of the children were out of restrictive detention.

In June 2003 Roqia was then presented with a letter from DIMA with an offer of $10,000 to return to Afghanistan or nothing to “go home to Pakistan or wherever”, but she was not allowed to go with Ali who still had court proceedings on foot. She refused.

On July 25 2003 her brother Mazhar Ali, the young man who flew off the Woomera fence on Australia Day 2002, was dragged from his cell in Baxter at 1 am, with the boys Alamdar and Montezar as witnesses, handcuffed and forced onto a plane. It was believed he was imprisoned for 2 days at Bangkok airport because he had no real travel documents and was again arrested in Karachi for the same reason. When Jeremy Moore asked at DIMA why the ACM guards were not allowed to enter Pakistan he was given no answer – Senator Kirk has now been told by DIMA at estimates that the ACM guards travelled without visas.

Two days later Roqia collapsed in Baxter and was finally taken to Port Augusta hospital in premature labour. After consultation she was transferred to Adelaide to the Women’s and children’s hospital where she was diagnosed with diabetes and a fragile pregnancy. It was a huge task to allow her to stay in Adelaide rather than be sent back to Port Augusta but her doctors were sickened by her treatment and forcefully lobbied DIMA. As a result Roqia was under 24/7 guard at the Arkaba Motel for the rest of her pregnancy.

The five children were released from Baxter on 25 August 2003 by the Family court after a landmark decision in a case led by Jeremy Moore and Paul Boylan but still Roqia remained in the motel. The reasons given by Senator Vanstone later was that the children were not in detention and Roqia was.

Roqia tried to maintain contact with the children while they lived in a house two miles from the motel unit but DIMA and her ill health made this almost impossible. Records received under FOI after the family were deported show that DIMA would make the children’s visits impossible with arbitrary cancellations and the refusal to let Roqia make even phone calls.

At one point Roqia was not even allowed to ring Ali who was still in Baxter and his visits were more often than not cancelled. David Corlett has captured this phase perfectly during long interviews with the carers who also have submissions on the public record during the senate investigation into the Operation of the Migration Act, 2006.

Unknown to Roqia the department secretary had two meetings with the Pakistan embassy in Canberra about deporting her. The first was on August 20, 2003 stating that she had been “proved” to be a Pakistani citizen and visas were required for she and the children. The day before DIMA wrote a letter claiming that Roqia was in hospital with complications of her pregnancy.

The second was on 26 September 2003 stating that she was 32 weeks pregnant and ready for deportation if the embassy would supply visas. No evidence of any Pakistani identity have ever been presented. Indeed DIMA now state to the estimates committee that she was Pakistani only by marriage but was an Afghan citizen.

Mazhar Medhi Bakhtiyari was born on 15 October 2003 so DIMA were always well aware that she was 38 weeks pregnant and that they were legally not allowed to deport her.

The next year of the lives of this family have been well documented and thanks to Jack Smit at Safecom every article ever written is on the safecom.org.au website for public perusal.

What is not known is the use of false Pakistani documents and the so-called confirmation of the family as Pakistani citizens.

Bear in mind that Ali was arrested and incarcerated on 5 December 2002 after being cleared by ASIO as an Afghan citizen on 29 June 2000, and Australian’s were told he had been confirmed as a Pakistani.

The records received after the deportation show that the Pakistan embassy in Canberra confirmed someone named Asghar Ali, DOB 1971 as a Pakistani citizen based on a document in that name with a DOB 1957 and Ali’s visa and actual birthdate is 1961. A further document has the birthdate as 1959.

The RRT decisions supplied explain the discrepancies in the documents and I have supplied all the documents. Suffice to say they are not Ali, as identified by Mr Hassan Ghulam.

I met Roqia and Mazhar properly in the family court on 23 December 2003 when DIMA dragged us into the court to complain that the carers had been changed without notifying the department. What struck me was Roqia’s dignity and grace in the adverse situation she found herself. Mazhar was a fat and beautiful boy whom I later come to love like a grandson.

It was not until the children were returned to detention in April 2004 that it was felt Roqia was allowed to live with them and not until 8 June that they allowed the move. Things changed though, as David Corlett again explains, and life was truly difficult. To see Ali Roqia had to go to the motel with the children instead of Ali coming to the house. Guards were in the house at all times and none of the family could leave the yard even to go to the deli for a litre of milk or a breathe of air.

Roqia was eventually allowed to go to school for a few hours a week and learnt to read and write a little English, Ali was allowed at the house for Mazhar’s first birthday but we had to restrict the guest list to 20 in case we staged a mass abduction of the family. Those who attended were Father Greg O’Kelly from St Ignatius, Magistrate Kim Boxall and his wife and daughter, Dale West and Pauline Frick from Centacare and their children, Jeremy Moore and his wife and son, the carers and their children.

A truly subversive mob you would have to say.

Now to the deportation which was very public and filmed by Channel 7 after I demanded that they stay and see what the years of lies and vilification had wrought on an innocent family. Peter Caldicott had interviewed Roqia on 27 December and she pleaded to stay as she was in fear of her life, she was from Afghanistan and not Pakistan.

The Afghan embassy had confirmed that on 22 December as Paul McGeough learnt from the Afghan ambassador while he was reporting from Kabul, and early this year the department tabled the letter to the senate estimates committee. It is in the public eye on the senate estimates site and states clearly that they reiterated the statements of 22 December.

Shockingly they state that an “investigation” that Russell Skelton claimed to have made debunking the Afghan ambassadors statements was an utter lie. He made it up, as of course he had made up everything else he wrote as the RRT decisions tabled will show.

The family were forced onto a plane at 1 am on 30 December 2004 just 12 hours after it was confirmed that Roqia was pregnant. A new daughter Fatima was born on 7 August in Kabul after Roqia nearly died several times due to lack of medical care.

Three weeks later an FOI request from September was received by Jeremy Moore and given to me for reading. Among four reams of paper, much of it blank, I found baby Mazhar’s birth certificate. It states clearly that both parents are from Afghanistan and were married in Afghanistan.

The records, tabled to the committee, show that DIMA initially made a “Certificate of Identity” for the baby and sent it to the Pakistan embassy claiming he was a Pakistani citizen. This was ignored until the Friday before Jeremy went to the High Court in “Singh” to declare the baby stateless or Australian when DIMA again wrote to the Pakistan embassy.

This time they sent Mazhar’s birth certificate and bizarrely got a letter claiming that Mazhar Medhi, son of Asghar Ali Bakhtiyari, was a Pakistani citizen due to birth, even though there was no evidence anywhere suggesting that Ali was from Pakistan.

Early this year I received from Senator Kirk a copy of the travel documents for the family and was shocked even further to discover that DFAT had made them claiming that the family were all born in Quetta, including this baby boy.

Phoney Pakistani documents seem to have been used in about 20 cases by DIMA with all of them rejected by the RRT except those used against Ali.

In this case we have been presented with the information that DIMA received these documents on 2 December 2002, yet Ali had been presented with them on 30 August 2002 and Alan Ramsey in the Sydney Morning Herald had mentioned them on 3 August while Matthew Benns of the Herald Sun seems to have been aware of them on 26 July 2002.

Ali responded to those documents on several occasions denying the Asghar Ali person was him so it would be mystifying to most to discover that DIMA didn’t receive them until three months after his responses.

Except that the version on 2 December 2002 has a different translation to the others which were translated by a NAATI member in Melbourne and the education standards were omitted. I believe this was done because the department knew Ali was illiterate and this translation claimed he had matriculated. All versions of this have been given to the committee and Paul McGeough received the original from Pakistan and that has been given to the committee.

For this family there is no explanation for the cruelty. DIMA always knew that Ali was an Afghan refugee and we know now that on 22 March 2001 the circulated a memo stating clearly that Roqia and the children were from Afghanistan. It was revealed in s134 that they knew Ali was in Sydney but were under no obligation to tell her.

Their personal details were leaked to the media by DIMA, they were deemed to be terrible trouble makers yet the ACM reports show otherwise. They had their identities stolen and DIMA even manipulated a newborn baby's birth certificate to say he was from a different country.

They are the only Afghan family ever deported by force, they were the only Afghan children from 840 who made it to Australia who were ever deported and then to the wrong country.

The government spent $600,000 on court proceedings which all stemmed from DIMA’s own fraudulent use of Pakistani ID papers that had been obsolete since 2000 and kept an innocent woman in detention for four years without even being able to walk her baby alone or give birth without guards.

The detention costs were $750,000 alone for Roqia in the motel room and about $2 million for the children with Ali’s cost being about $250,000. The deportation was $250,000 and Vanstone reported that the bill would be $3.4 million if they wanted to come back to Australia.

Perhaps it can be summed up by question 114 on notice from November 2005 “we never denied that Mrs Bakhtiyari was from Afghanistan,”

Mazhar Ali was the young man who flew off the fence in January 2002 and features in the “unacceptable protest” photo with the arm wounds. He did this to bring attention to the fact that his sister and the children were in Woomera while Ali was in Sydney. It took over 100 stitches and to this day he cannot use his arm.

It has recently been revealed that DIMA used a set of Pakistani documents against him but didn’t tell him. He was out of process in November 2001 after being declared an Afghan but not a refugee. Strange that everyone in this family were really deemed to be Afghans by DIMA and ASIO yet they were sent to Pakistan.

The documents are on the Senate estimates website from the Budget session questions on notice. They are in the name of Nasser Ali with another one for his father. The problem here is that his father died in 2000, never came to Australia and was called Yusuf Ali while this “document” has been translated as being in the name of Teimoor Ali.

In Mazhar’s case they stole his ability to work because he cannot use the right arm, they ignored documents he collected proving his sister’s nationality as Afghan and sent him without legal documents to Karachi wher he was denied entry, had to pay bribes and was then tortured in Quetta and nearly killed in Afghanistan.

After the family were deported he walked for three days in the Afghan snow to reach them in Kabul.

For all those who want an explanation for this cruelty it seems to come down to a statement made by Philip Ruddock to the Los Angeles Times in April 2002 “if you come separately, you are not entitled to family reunion”.

The result is there for all the world to see.