Pearls and Irritations

The fate of Amber Rudd offers some hope to Australians who disapprove of Dutton and his methods.

Britain’s home secretary, Amber Rudd, resigned last week over an immigration scandal the unpleasantness of which would have made our Peter Dutton proud.

Ms Rudd was supposed to be implementing a harsh policy of deportations, sending back immigrants to the Caribbean who had arrived in Britain over a period of 20 years from 1948.

Known as the Windrush generation, after the ship that brought them from Jamaica, the immigrants arrived under a program designed to fill labour shortages at cheap rates. Many stayed on in Britain while a large proportion had a tenuous legal status because their documentation was incomplete.

While Rudd was telling her prime minister, Theresa May, that she was aiming at “increased forced removals by more than 10% over the next few years” she was simultaneously telling a Commons committee, “We do not have targets for removals”.

As Rudd shows, saying misleading things can be more catastrophic to a political career than running a deliberately inhumane policy.

On home turf, home affairs minister Dutton, also has responsibly for immigration, refugees and asylum seekers, yet he can revel with impunity in the inhumanity of his dead-end scheme of permanent detention.

He can seek to undermine the rule of law with rabble-rousing attacks on judges, magistrates and members of tribunals handling refugee and immigration cases. He has floated a “quasi election” proposal whereby the public would be invited to approve lawyers for judicial positions. He claims that lawyers who act for asylum seekers are “unAustralian”.

Victoria threatens to pull out of facial recognition scheme citing fears of Dutton power grab

His department can delay or refuse the transfer of critically ill refugees from Manus Island or Nauru to hospitals in Australia. He sends people back to the places of torture from which they have fled. He thinks he should have unchallengeable powers to ban entire nationalities or any “specified class of persons” from either travelling to or staying in Australia on their current visas. He has said that he would prefer to accept refugees who were from persecuted minorities in Syria, most of who happen to be Christians.

He persists in linking terrorism to asylum seekers and dishonestly calls boat arrivals “illegals”. He described the “Armani refugees” on Manus as taking advantage of Australia’s generosity. After the removal of references to the Refugee Convention from the Migration Act Dutton now wants Australia to “rethink” its commitment to the convention while simultaneously abandoning his duty of guardianship towards children held on Nauru.

He has denied claims of a plan to expand the role of the Australian Signals Directorate into domestic spying, nonetheless he thinks it’s a good idea.

Naturally, with this range of qualifications Dutton wants to be prime minister.

Unlike Amber Rudd, Dutton’s regressive values are the foundation of his startling promotion within the ranks of the government. The last minister who gently chided his overreach was the outgoing attorney general George Brandis, who belatedly was critical of ministerial attacks on legal institutions and those who practise in them.

This was met by a snarling response from Dutton on one of his soft soap sessions with the broadcaster Ray Hadley.

Under the prime ministerships of Tony Blair and Gordon Brown there were six home secretaries over a 13-year period

Not only is the home affairs minister in charge of immigration, customs and borders but also a massive and repressive security apparatus, described by Professor George Williams, dean of law at the University of New South Wales, as being on a scale unprecedented in the western world.

In Britain, the width and breadth of functional responsibilities has proved to be beyond the grasp of a succession of home secretaries. The Bagehot columnist in The Economist recently said that the Home Office “is a nightmare to run”:

… being on top of your brief is almost impossible in a department with so many sprawling responsibilities … The department is also littered with land mines: one former home secretary says that at any one time there are 30 people in the Home Office who can destroy the home secretary’s career.

Here are a few lessons that Peter Dutton might bear in mind:

• In 2004 Beverley Hughes, a junior home secretary, resigned because she said she was unaware of a visa fraud, when she had known about it for at least a year.
• In 2006, home secretary John Reid admitted his immigration systems were not “fit for purpose” after it was revealed that applications were not being checked. In 2006, it emerged there was a backlog of 502,000 claims for asylum that the department hadn’t processed.
• In 2011, the head of the UK Border Force resigned after claims that he had relaxed visa processing rules without telling Home Secretary Theresa May.
• In 2013 the Home Office was accused of having lost track of 174,000 people who remained in Britain on expired visas.
• In 2016, it also emerged that the whereabouts in the country was unknown of a further 71,000 international students who had finished their studies.
• Quite apart from that, in 2004 home secretary David Blunkett resigned after being accused of fast-tracking a visa application for his ex-lover’s nanny, and this was at a time when he had been tightening the visa process.
• Under the prime ministerships of Tony Blair and Gordon Brown there were six home secretaries over a 13-year period.

For the committed band of citizens who disapprove of Dutton and his methods, this potted history shows there is hope yet.

Underneath the home affairs minister is a vast machinery of functionaries exercising delegated powers on the basis of “reasonable suspicion”.

Here’s an example of how reasonable suspicion works: Livinus Okwume, a Nigerian national arrived at Brisbane airport in July 2005 on a business (short-stay) visa, hoping to attend a nursing conference. He was apprehended in the baggage area on an “intuitive basis”, maybe because of his skin colour.

He was interviewed by officers of the commonwealth, including Kay O’Connell and Benjamin Kriss. O’Connell thought all his paperwork was in order and that he was a genuine nurse, however Kriss formed a “reasonable suspicion” that Okwume’s passport was bogus.

At some point of the interviews he said he wanted to apply for asylum in Australia, whereupon his visa was cancelled, he was taken under guard to a motel for the night, and then removed to the Baxter Immigration Reception and Processing Centre near Port Augusta, South Australia, where he spent the next eight months as an unlawful non-citizen.

In Okwume v Minister for Immigration and Border Protection, Justice Natalie Charlesworth of the federal court found that Kriss and two other officers had not formed their reasonable suspicions reasonably, so the first 18 hours of detention had been unlawful. Okwume was awarded a total of $1,600 in damages and $400 in lieu of interest.

The judge went on to find that the remaining eight months in detention were lawful.

Okwume’s file had come into the hands of another officer, Michelle Grau in Brisbane. She received a report from a forensic document examiner in Canberra, Trevor Alt, who said he could see nothing untoward with the passport.

Nonetheless, Grau had ongoing concerns about Okwume’s identity and asked for legal advice from Miriam Moore, the director of legal opinions within the department. Her advice was:

Given the visa remains cancelled the detention would remain valid. I also note you are correct in pointing out that the visa would have ceased by now anyway, so unless he holds some other kind of visa he would not be lawful and would need to be detained.

It doesn’t get more Kafkaesque than that. The forensic people say his passport is valid despite the reasonable suspicion people thinking it is bogus. But because while in detention his visa has lapsed it is lawful to continue to detain him.

Is Peter Dutton a fit and proper person to wield such awesome powers?

Both Okwume and the commonwealth appealed and a decision arrived on Friday 4 May, nearly 13 years after he was detained at Brisbane airport. The full federal court dismissed both appeals. Justice Richard White was the only judge who found for Okwume and against the commonwealth.

The outcome means that Justice Charlesworth must have been right. The commonwealth successfully applied for a nondisclosure order in relation to reports on the incident prepared by Kriss, whose original “reasonable suspicion” started this cavalcade of misfortune.

Okwume applied for refugee status while he was held at Baxter, and after an appeal was successful. He got a protection visa and was able to get out of detention – otherwise he might still be there.

Grau has been elevated to the Administrative Appeals Tribunal (migration and refugee division) while Okwume is now an Australian citizen.

Australians used to understand that if someone is to be locked up for an extended period a judge should be the one doing the locking up. Yet, here there was not so much as a sniff of a judge anywhere near the process that incarcerated Livinus Okwume.

All that it took was one of the minister’s functionaries to have a suspicion – reasonable or otherwise.

Richard Ackland is a Guardian Australia columnist

This article first appeared in the Guardian Newspaper on 8 May 2018

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