Archive for the ‘Humayun’ Category

Humayun revisited further

September 3, 2007

I have written previously about Mr Humayun.

The latest development is that his appeal to the Federal Court (or, more properly, his application for an extension of time in which to make his appeal) against the decision of the Federal Magistrate’s Court rejecting his appeal from the Refugee Review Tribunal has been rejected.

The judgment indicates that the matter which has excited Humayun’s advocates in the arena of public opinion, namely the suggestion by the tribunal member, Giles Short, that Humayun’s relationship formed in Villawood was merely a kind of “opportunistic” homosexuality, does not form any part of the specified grounds of appeal, all of which are fairly narrowly procedural. One can assume that, if Humayun’s advisers thought they had any prospect of succeeding on such a ground, it would have been advanced. This is salutary: the bases on which such decisions can be appealed are extremely limited. Findings of fact themselves cannot be appealed.

Humayun revisited

August 12, 2007

Humayun 

Ali Humayun (pictured right), 26, a Pakistani detainee at Villawood whose application to stay in Australia as a refugee on the basis of either his conversion to Christianity or his homosexuality (/bisexuality) has been rejected,  is suing the Department of Immigration and Citizenship and the company which runs Villawood, variously described in reports as Australasian Correctional Services Pty Ltd and Global Solutions Limited, for breaching their duty of care towards him. (You can find other references here, here, here and, more generally, here.)

As reported, his claim appears to be that, on the basis of an anonymous tip-off (Humayun says it was a letter from a staff-member) that he was planning to escape, Humayun was transferred to the high-security division of Villawood and put into a cell with a known heroin user, whom he witnessed shooting up on a daily basis.  Humayun says that medication which he had been prescribed for depression was withheld from him and he was unable to see a psychiatrist. Heroin was offered to him, including, Humayun says, by Villawood staff.  To the knowledge of the staff (he says) he started using it, ultimately becoming addicted.  He is now on a methadone program. 

Humayun subsequently formed a relationship with a fellow-detainee (since released, pictured above at left), 41. Humayun also says that he has been subjected to bullying and harrassment from which the centre administration has failed to protect him.  This may also form part of his claim, though that is less clear.

Humayun is presently also appealing against the Refugee Review Tribunal’s decision refusing him refugee status.  I have written about his case previously here and also about refugee applications based on homosexuality here. There has been quite a lot of coverage of this issue, although advocates of Mr Humayun and critics of the Refugee Review Tribunal are inclined to pass over the less credible parts of his claims in silence, and to make exaggerated and simplistic accusations about some statements made by the tribunal in this and other cases, as well as comparisions with the Canadian system which only tell part of the story and may make the grass look a little greener than it is.

Humayun has made some claims as part of his application for refugee status which may well appear questionable, or which do not particularly excite my own personal sympathy (specifically, his claim to have converted to Hillsong-brand Christianity because of “9/11”). This sort of thing makes his claim difficult for him, but should not be determinative. As Jenni Millbank (with whom I was at law school: she was reputedly the notorious library lesbian graffitiist) pointed out: “I think there are a number of issues in this case, and it’s very common in refugee cases for there to be issues of credibility. Not all of the claim is always believed, even in successful claims.”

The Refugee Tribunal has come under criticism for rejecting applicants who couldn’t answer questions about Oscar Wilde or Madonna. What the member in question said in the case which I take to be the basis of this charge was:

“The Tribunal thus well understands that it should not expect all or any homosexual men in Iran to take an interest, for example, in Oscar Wilde, or in Alexander the Great, or in Naguib Mahfooz, or in Greco-Roman wrestling, or in the songs of Egypt’s tragic muse Oum Khalsoum, let alone, say, in the alleged mystique of Bette Midler or Madonna. There are always political, social and potentially intangible cultural considerations to take into account. However, the Tribunal was surprised to observe such a comprehensive inability on the Applicant’s part to identify any kind of emotion-stirring or dignity-arousing phenomena in the world around him.”

which is far from the same thing. (If that is the basis of Professor Millbank’s comments in the program linked above I am disappointed in her.)

Canada has had its own problems with Pakistani gay refugee applications in recent years, particularly after tightening of US laws in the wake of 9/11 led to a wave of Pakistani immigration from the United States. I don’t know how we will ever be able to say with certainty that its determination procedure is more accurate than Australia’s. It is certainly more liberal.  It does not, I think, include mandatory detention as here. Human rights culture in Canada is constitutionally entrenched in a way which ours is not.

Many may baulk at a claim which, cursorily read, seems to be “you turned me into a heroin addict.” Plenty of prisoners could probably make the same claim, but I don’t see them lining up in the courts to sue for it (though these days other cases about treatment of prisoners have met with success).  I’m not sure that the distinction between prisoners, who if not on remand are at least imprisoned as some kind of punishment, and refugee detainees (who are not) can really make a difference here. 

The fundamental injustice of immigration law is its very existence: what is the fair reason why some people can enter or stay in a country and others cannot?  The hard men (and women) of Immigration will shrug their shoulders and say that this is just the way it is, and that sympathy for the few who get here, and to whose sorrow we can put a face, is a form of sentimentalism and (and here they sometimes talk about a “queue”) unfair to others we have not seen.  

That may be an unpalatable truth, but that doesn’t endear any more to me those who volunteer to implement it at the pointy end. Sadly, even allowing for the possibility that he may have exaggerated some of the details, I find Mr Humayun’s claims of arbitrary mistreatment at Villawood all too believable.

Humayun

May 18, 2007

 

Mr Humayun is a Pakistani national who overstayed his student visa, on which he came to Australia in 2000.  He was detained because he was caught working in contravention of the bridging visa which he was granted pending determination of his appeal against revocation of his student visa.  He has applied for refugee status, and in particular because, as a bisexual man, he will face persecution on account of his bisexuality if he returns to Pakistan.  This application was rejected by the immigration department, and the decision of the department was upheld by the Refugee Refugee Tribunal.  He appealed to the Federal Magistrates Court.  The magistrate’s court only has power to overturn a decision of the tribunal if that decision has been affected by an “error of law.”  What that means is that, unless an error of law can be shown, the magistrate cannot disturb the findings of fact made by the tribunal.  It is a very limited type of appeal.  The appeal was unsuccessful because the magistrate found that the findings of fact which the tribunal made were open to it and not affected by error of law. 

 

A key part of the tribunal’s finding of fact was that some of the reasons that Mr Humayun gave for why he would face persecution arose as a result of conduct by him which it characterised as being conduct undertaken for the purpose of strengthening his claim to refugee status.  In a devilish twist, the law requires the tribunal, if it finds that there has been such conduct, to ignore it.  This means in effect that it is possible that Mr Humayun will be persecuted, but the tribunal has ignored this on the basis that, even if that is so, this is of Mr Humayun’s own doing.

 

Whilst in detention, Mr Humayun had a relationship with another male detainee (who also identifies as bisexual), since released.  That man now visits him regularly.  On the basis of an anonymous tip-off that Mr Humayan was planning to escape, Mr Humayan is now in detention in a high-security part of the detention centre, populated largely by criminal or allegedly criminal detainees.  However harsh conditions are in detention, conditions in this part of the centre are indubitably harsher.

 

The tribunal did not consider that the fact that Mr Humayun had a relationship with a fellow detainee established that he was in fact bisexual or would lead a bisexual life in Pakistan which would lead to him being persecuted there.  In other words, just because you have sex with a man in a prison or similar single-sex institution doesn’t mean that you are gay or (as Mr Humayun claimed) bisexual.  The conduct which was disregarded included Mr Humayun’s telling his family in Pakistan about this relationship, so that his claims that his family would persecute him for this were simply disregarded.  This has received some publicity as a result of Mr Humayun’s appeal to the “gay community” for help, and has caused quite a lot of outrage.

 

Senator Kerry Nettle of the Greens has gone in to bat for this man. 

 

It is a complicated story.  You can see different aspects of it at:

http://villawood-refugees.blogspot.com/

(includes stories from the Sydney Star Observer, Sydney Morning Herald and a letter from Mr Humayun himself)

and some more background at:

http://www.austlii.edu.au/au/cases/cth/FMCA/2007/313.html

(Federal Magistrate’s court decision which includes references to the Refugee Review Tribunal Decision)

http://www.austlii.edu.au//cgi-bin/disp.pl/au/cases/cth/FCAFC/2006/35.html?query=HUMAYUN 

(Full Federal Court decision in relation to revocation of student visa)

http://www.austlii.edu.au//cgi-bin/disp.pl/au/cases/cth/FMCA/2005/1247.html?query=HUMAYUN 

(Federal Magistrate’s court decision on appeal from the Migration Review Tribunal Decision in relation to revocation of student visa)

All migration law is fundamentally unfair.  Provisions for detention are draconian.  Mr Humayun has made some pretty florid claims, and some of those have not been believed.  In the face of such an unfair legal regime, the temptation to do or say whatever you think you can which might get some kind of sympathetic treatment (and God knows, you need sympathy because you can’t count on much else, such as, for example, justice other than “justice according to law”) is understandable. However, this becomes a problem when, as in this case, the claim (to be facing persecution on account of sexual orientation) is one which ultimately depends on the credibility of the applicant.

Postscript:The Sydney Star Observer story I have referred to above has also attracted a range of comments.  See:http://www.ssonet.com.au/display.asp?ArticleID=6505 

These comments (as comments do) fly off in all directions.  There is a lot of sympathy for Mr Humayun’s plight.  There are also some rather off-the-wall comments about Islam and homosexuality.  I should just add that these days (this was not always the case), if a claim is accepted that a person is gay, the tribunal is generally ready to accept that, in a range of countries, including Pakistan, that person will face persecution for a convention-related reason and is therefore eligible for refugee status in Australia.  By extension, I assume the same would apply to claims based on bisexuality.