What happened to Akram al Masri
by Marilyn Shepherd
One of the favourite statements made by the [former] Minister is that “people in detention can go home anytime they choose to co-operate with Australian authorities”.
But the cases of Akram al Masri and three other Palestinians gave us an excellent opportunity to claim release on a writ of habeas corpus due to the inability of the Minister to have other countries co-operate with his plans.
“I am Akram Ouda Mohammad al Masri of Palestine, currently of Woomera detention centre.
I am from the Gaza strip in the area under the control of the Palestinian Authority where I worked as a builder’s labourer. My wife Fatin and I were married on 22nd October 1999 and have a small son born on 9th September 2000.
I left Palestine because I was accused of being an Israeli collaborator. The Fatah shot my uncle in 1992 after he was accused of being an Israeli agent. On 3rd March 1994 members of the Fatah shot at our house as we were also being accused of collaborating with the Israelis.
My mother was shot in the chest and killed. I was shot in the head and taken to the Nasser Hospital. In 1999 the Preventative security forces arrested me and I was sentenced to 7 months imprisonment at the Tal Al Hawa prison.
After my release I was unable to obtain a permit from the Palestinian Authority to work in Israel again. I fled from Palestine as I was scared I would be arrested and tortured again.
After leaving Palestine on 7th April 2001, I travelled by boat to Ashmore Reef in June 2001 and was eventually flown here to Woomera.
On 2nd July I applied for a protection visa in Australia claiming refugee status which was refused on a primary decision on 21st September 2001. Subsequently I applied to the refugee review tribunal to have my case reheard, which was also refused.
I was advised on 5th December that the tribunal had rejected my claim by a DIMIA employee named Yvonne in the company of an Arabic interpreter, a psychologist and several ACM guards waiting outside.
When I asked Yvonne my further options she replied that I only had two, the first was to apply to the Federal Court and the second to return to the Gaza Strip. As I believed there was no hope of a favourable decision in the courts I asked to be able to return to Gaza.
My decision was partly based on the fact that the treatment in the Woomera detention centre was so bad, and the process so bad that I would rather return to the Gaza Strip to die with my family.
I signed the form to return that same day, and Yvonne told me I would need a valid passport and they would then be able to make arrangements for me to go home. On request I rang my brother in Palestine to send my passport to my Uncle Solomon Salim who lived in Sydney. Uncle Solomon received the passport and then sent it to an interpreter who works for ACM, who in turn passed it on to DIMA.
It’s my belief that DIMIA had the passport within 10 days of my request to go back to Gaza. When I signed to go back to Palestine no-one ever told me that there would be problems organising my return, no-one told me there might be a very long delay. I was given to understand that if I signed to leave, if I presented my passport on request I could leave very quickly.
At about Christmas time I went to the DIMIA office to find out why I had not been given a date to leave. Yvonne told me that they had not yet received a reply from DIMIA in Canberra. A week later I went back and there was still no reply.
One month after receiving my passport Yvonne told me arrangements had been made for me to leave on 18th February 2002. On the 18th I had packed my bags and was ready to leave, when I was called to the DIMIA office in Woomera.
Yvonne and David Frencham, the DIMIA Manager, told me I could not leave that day as Israel had refused my entry. They said they had also tried to get permission from Jordan, who had also refused my entry.
No reasons were given to me that day as to why I was refused entry, all they said was that arrangements could not be made for me to leave Australia. They said I should be patient when I asked what would happen next, but I became hysterical when they said I had to stay in detention.
I put my hand through a window and sustained injuries serious enough to keep me in the Woomera hospital for weeks.
A copy of the doctor’s report was given to us dated 20th February 2002 which stated:
I saw your patient on 19 February 2002.
He suffered a deep stab wound over the front of his right wrist. Clinical assessment was difficult due to the language problems. There was a complete loss of active flexion of the right index finger and some weakness of flexion of the middle and ring fingers. There also appeared to be some sensory impairment on the radial side of the hand. It was however, difficult to be certain about this. The circulation was not impaired.
Exploration of the wound was carried out under general anaesthesia on the same day. This showed a deep wound with complete cut of the flexor profundus and sublimis tendons to the index finger, and sublimis tendons to the ring and middle fingers. He also completely cut the palmaris longus and partially cut the flexor carpi radialis. Fortunately the median nerve was bruised but not cut.
The distal end of the cut tendons had retracted some distance and there was great difficulty in retrieving all the cut ends. Suturing of the flexor tendon was carried out in a two hour operation.
His immediate post-operative recovery was uneventful. He will require immobilisation of the wrist and fingers in flexion for about 6 weeks to protect the repair. This should then by followed by active mobilisation. This is likely to be a slow and protracted process.Felix LimOrthopaedic Surgeon
However, on a follow up appointment and reassessment on 21st February Dr Lim reported:
He was taken back to the operating room on 21st February 2002. Exploration of the wound was carried out. This confirmed division of the flexor policis longus tendon. Both ends were retracted for some distance from the laceration, and exploration and retrieval of the cut ends was achieved with some difficulty.
The wound was closed and the right wrist immobilised in a plastic splint with the wrist in flexion. He will require this for about 6 weeks.
In our view this was a classic example of one of the Minister’s other mantras about the refugees as a “self-harm attempt to blackmail the Australian people”, without any regard to the despair felt by Akram when faced with the indefinite detention in Woomera through no fault of his own.
On 21st February four Palestinians sent a letter to the Minister with requests for release from detention:
“We are four Palestinians being held in detention here at the Woomera Immigration Reception and Processing Centre. Each of us has had our application for a protection visa rejected by the refugee review tribunal. We want to go home when it is safe but we have been told that your government, at this time, is unable to return us home in safety or to take us to a third country.
We do not want to be kept in isolated detention here at Woomera indefinitely. We cannot go to any court. We are no longer being detained to assist in processing of any claims nor to assist with our removal or deportation in the foreseeable future.
We understand that we cannot be released from detention unless you issue us with some form of visa. We think it would be very unfair to be kept in prolonged detention as punishment for having come to Australia or as a deterrent to other Palestinians thinking of coming here. After all, we have not been convicted or even charged with any criminal offence.
We can see no reason for our continued detention. Please release us into the Australian community until it is possible for us to go home or to a third country.
If you insist on keeping us in some form of detention, we ask that you provide us now with alternative detention arrangements similar to those being provided for some of the women and children in the Woomera township.
We hope the officers of your department will be able to help us now that we have come to the end of the road in applying for protection from your government.
Akram and the other men received no reply from the Minister about this letter, and a further letter was sent to the Minister on 28th March. This letter was also left unanswered.
“We are three of the Palestinians who wrote to you on February 21st. We are still being held in detention here at Woomera. We have not had any response to our previous letter. So might we repeat that we want to go home when it is safe, but we are told by your government at this time, is unable to return us home or to a third country.
We want to return to Palestine. If that is not possible we want you to return each of us safely to the country in which we previously lived or to some other country where we can live in peace. If you cannot do that in the next month, we ask that we be released from detention here at Woomera so that we can make our own arrangements for our future life in another country.”
On 18th April we sent a fax to the Egyptian Embassy asking them to confirm by 5 pm that day that the border crossings from Egypt to Palestine have been closed.
Please also advise whether it is possible for a person with a Palestinian passport to travel from Egypt to Palestine.
On 19th April we received the following fax from Mr Ashraf M Hamdy at the Egyptian Consulate, 1 Darwin Terrace, Yarralumla.
With reference to your fax dated 18 April 2002 inquiring about the possibility for a person with a Palestinian passport to travel from Egypt to Palestine, we would like to advise the following:
1. In normal circumstances, a holder of a Palestinian passport can travel from Egypt to Palestine either via airplane from Al Arish airport to Gaza Airport, or through the crossing point of Rafah on the Egyptian border to Palestine.
2. However, due to the Israeli occupation and the closure of the border from the Palestinian side the border crossings from Egypt to Palestine is currently closed and the Gaza airport is not accessible.
Hoping this answer could be of help to your client.
By April, when we took the affidavit from Akram no-one from DIMIA had been near him since February when they informed him he could not leave.
“I have requested in writing to see the DIMIA manager David Frencham twice since I was told I could not be returned but he has not seen me. No other person has been to see me from DIMIA.
I filled out the forms and gave them to the ACM guard who assured me he had spoken directly to David Frencham about my situation.
I have not signed any other forms about my situation since I signed to go back to Palestine. I now understand my situation to be that there are not countries that will accept me back, and that Australia will not grant me a protection visa. This means I am left here in the detention centre.
Another joint letter was sent to the Minister on 6th May 2002 and a reply was finally sent to Father Frank Brennan on their behalf on 3rd June.
“The issue with this group is not the question of their right of return to the Palestinian Territories (they either hold valid Palestinian National Authority travel documents or we believe we will be able to obtain them), it is the need for approval for their overland transit through the territories of a third country. We are negotiating with three relevant countries and believe this matter is capable of resolution.
Yet another letter was sent on 10th July:
How much longer must we wait here in the middle to the Australian desert while your public servants seek a resolution to our situation? Surely we have waited long enough. If we have to wait any longer, why cannot we wait in the Australian community until it is safe for us to return home?
Why can’t we have a regular review of our detention by a judge? Because it seems to us you are simply punishing us, using us as an example for other people who might want to come to Australia by boat. As you well know, we are no security risk or health risk to the Australian community.
You know well who we are. We are not being held in detention for processing. We are not being held in detention for any health and security reasons. Our health is now suffering badly.
On 15th August 2002, Justice Ronald Merkel in the Federal Court ruled Akram should be released from Woomera as the continued detention was unlawful.
The minister was ordered to release Akram immediately. Akram was ordered to give his address to his own solicitor on our behalf and the Government Solicitor and any change of address or contact details had to be given to both immediately.
The minister was further ordered to give notice in writing from the Australian Government Solicitor or an officer of the Department of Immigration as to the arrangements made for his removal from Australia.
In article 11 of the decision the applicant is required to be removed from Australia under s 198(1) which provides:
An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the minister, in writing to be removed.
In article 15 the minister claims that the applicant’s detention is, and remains, lawful for so long as it is for the purpose of his removal from Australia. The minister accepts that under s 196(1)(a) he is only entitled to detain the applicant pending the applicant’ removal but contends:
“In the circumstances of the applicant, the obligation is to detain until it is reasonably practicable to remove as requested. The scheme of the provisions in section 198, 196 and 198 of the act does not admit of he possibility that the applicant can be released otherwise. The reference to reasonable practicability in section 198 denies any implication that the length of detention must be reasonable, assessed independently of considerations of whether it is practicable to remove.”
The minister was arguing that he was allowed to keep imprisoned anyone without a visa for the length of his natural life if he wanted to.
In article 39 Justice Merkel stated that if the court is not satisfied that the minister is not taking “all reasonable steps”, or that removal is “not reasonably practicable” the implicit limitations on the detention power will not have been complied with or met and continued detention of the removee will no longer be authorised by the act.
The court has to be satisfied that the removal from Australia is reasonably practicable, in the sense that there must be a real likelihood or prospect of removal in the foreseeable future.
Justice Merkel, in article 51, stated:
“I regarded the failure of the minister to place the most recently available information before the court to enable a view to be formed as to the prospects for the applicant’s removal in the foreseeable future as significant.
It is some 8 months since the minister was first obliged to procure the applicant’s removal from Australia as soon as reasonably practicable. The final affidavit of the solicitor acting for the minister suggested that revealing to the court of the full details of factual information as to the prospects for the applicant’s removal would be likely to prejudice his removal to Gaza.I do not regard the minister as having provided a sufficient explanation for the absence of evidence as to the present prospects of the applicant’s removal.
Article 53 states:
“the situation is that each of the countries to which the minister seeks to remove the applicant: Israel, Jordan, Egypt and Syria have refused to accede to the Department’s requests for permission for the applicant’s entry.
Further to the order for Akram’s release from detention Justice Merkel said that the minister still had find a way to have him safely removed to the Gaza strip.
The most compelling of the articles of the judgement were articles 60 to 63 which affirmed the right of people to claim asylum in Australia under Australian and International law. In verbatim the report stated:
In any event while it is literally correct to describe the applicant as an “unlawful” entrant and an “unlawful non-citizen” that is not a complete description of his position. The nomenclature adopted under the act provides for the description of persons as “unlawful non-citizens” because they arrived in Australia without a visa. This does not fully explain their status in Australian law as such persons are on-shore applicants for protection visas on the basis they are refugees under the Refugee convention.
The Refugees convention is a part of conventional international law that has been given legislative effect in Australia: see ss36 and 65 of the act. It has always been fundamental to the operation of the Refugees convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully.
Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban and many others, may also be called “unlawful non-citizens” in the countries in which they seek asylum. Such a description however, conceals rather than reveals their lawful entitlement under conventional international law since the early 1950’s (which has been enacted into Australian law) to claim refugee status as persons who are “unlawfully” in the country in which the asylum application is made.
The Refugees convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence in that country: see Article 31. That right is not only conferred upon them under international law but is also recognised by the act (see 3 36) and the Migration regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees convention, including Australia, would be undermined and ultimately rendered nugatory.(not valid)
Notwithstanding that the applicant is an “unlawful non-citizen” under the act who entered Australia unlawfully and has had his application for a protection visa refused, in making that application he was exercising a right conferred upon him under Australian law. As he is entitled to under the act the applicant has requested his removal and the minister is obliged to remove him but, in the circumstances of the present case, the Minister is no longer entitled to detain the applicant pending his removal.
In his summary before Akram was released to the custody of his uncle Justice Merkel further added that Akram was not an outlaw and that no-one had the right to detain him again.
He was released into the care of our lawyer, Kate Chisholm, and in a report in the AGE on Saturday 17th August 2002 thanked us for taking the case to the Federal Court for him and claimed he had been dumped at the gate of the centre.
I had a welcome for him at my home on his arrival in Adelaide, he could hardly stop beaming. However, he remained distressed for those left behind in terrible conditions. Finally in Australia he was free to walk on the beach, to visit the shops, to be with his family and see something beside red dust and desert.
Unfortunately though, his time in Australia didn’t end just then. The minister had appealed against the court decision and on Friday 30th August on the way back from the Woomera hospital with Paul Boylan, Akram was arbitrarily arrested and taken to prison in Port Augusta.
When Paul questioned the police he was told it was under orders from the minister under the migration act. On Saturday 31st August we were lucky enough to have an emergency session in the court which ordered his release from prison and back into our custody. The day was strange and surreal for a good many people on that day.
My great friend and cousin, Paul Moran, was at a picnic for refugees. He spent the day enjoying the sun and interviewing Afghani refugees to show on Al-Jazeera TV on his return to the middle east. While he was in the sun, I was racing to the airport to rescue Akram from a mad attempt by the minister to send him to the Perth detention centre away from the courts, and away from all legal representation.
Akram’s crime was to seek asylum, to fail, and to ask to go home.
Following this trauma we were back in the court on Monday 2nd September and Akram was so depressed by events we ordered a psychiatric assessment on the day before.
Dr Paul Cummins, psychologist, interviewed and questioned Akram for about two hours as regards to his situation.
Dr Cummins stated:
“There are difficulties in diagnosis and attribution in a case such as this and without medical records I relied on Mr al-Masri’s stated history. After two hours of questioning I had to stop because Mr al-Masri was too distressed and exhausted to continue. I would ideally like further time but time makes this impossible.
However, in psychological terms, Mr al-Masri currently suffers from a severe Major Depressive Disorder and a panic disorder under the DSM-IV criteria. Mr al-Masri is experiencing serious psychological distress and I recommend immediate psychiatric referral for appropriate examination, treatment and possible medication.
It seemed clear that Mr al-Masri had suffered from post traumatic stress disorder prior to his arrival in Australia, the cause for this was the witnessing the murder of his mother and his uncle in Gaza. However, on his arrival his psychological condition appears to have been normal and has seriously deteriorated since his detention in Woomera.This appears to be, to a significant degree, a result of the conditions he has experienced at the Woomera detention facility, as well as fears for his life and safety is his visa applications are refused and he must return to Gaza.
A panic disorder is arguably one of the most distressing of psychological conditions. Anti-anxiety medication at a minimum should be offered, self-managing psychological treatment strategies would also, ideally, be offered. Must crucially in my opinion, it is my opinion that Mr al-Masri should not be detained again. I believe that such a move, to a person with a Panic disorder is so distressing to be beyond the level of an ordinary person’s experience to imagine. It could result in further attempts at self-harm.
In court on 2nd September the minister was ordered to leave Akram out of detention, but the minister also had arranged to have him “removed” from Australia fairly quickly.
On 7th September, after a few days in a motel room with two other Palestinians Akram was allowed to leave the country, cross into Gaza and be with his family.
The decision was appealed by the Minister and the decision was passed down on 15th April 2003 upholding the Justice Merkel’s earlier decision that the detention was unlawful.
It was too late to keep Akram from suffering the most terrible pain and deprivation, but will help many other asylum seekers in the detention centres still.
Again the minister is considering an appeal.
However, an immediate effect of the decision in the Federal Court was to have a further eight asylum seekers released. One man from Iraq has been imprisoned for 3 years and 9 months while everyone else on his boat was released long ago.
Dr Amir was on the same boat as the man Ali, so why was Amir released and not Ali? Apparently because the minister wanted Ali to go back to Syria, even though is it not his country of origin.
None of us has the first idea why the minister is so determined to keep out asylum seekers no matter what the cost. They have broken no laws, committed no crimes, yet have fewer rights than the most hardened of criminals.