Journalist David Marr meets the man with one of the most famous names in Australia's legal history
"He fell back into the numbing rhythm of Curtin: sleeping till noon, playing cards, learning to smoke, listening to rumours."
"Imagine every day I wake up and I think OK that's my place for ever.
This went on for nearly two years."
1 August 2008: Militant gunman kills asylum seeker: Vale Akram Al Masri - Shot in Gaza yesterday, Akram Al Masri came to Australia to find protection under the UN Convention - he didn't get what he came for. But his 2003 Full Federal Court case became a landmark ruling around the question whether or not Australia could lock an asylum seeker forever (yes, we could, and still can), and if we can do that if that person has asked to be removed from Australia...
4 October 2006: Who Cares? - The impact of detention on the mental health of detainees - Pro bono human rights lawyer and activist Claire O'Connor writes about children in immigration detention, and the implications for failing to deliver adequate Mental Health Services. A paper delivered at the Inaugural Women Lawyers Conference in Sydney (September 2006).
5 July 2005 - Amnesty International: The impact of indefinite detention: the case to change Australia's mandatory detention regime - By implementing the model for change proposed, the government would meet its international legal obligations, protect human rights of asylum-seekers, and go some way towards introducing a humane immigration policy.
7 April 2005: Justice Michael Kirby, International law: the impact on national constitutions - Drawing upon sources found in international law as contextual principles, judges of municipal courts in this century will assume an important function in making the principles of international law a reality throughout the world.
26 March 2005: Indefinite detention, Cornelia Rau and the denial of mental illness - Carmen Lawrence MP: We must ensure that our domestic law fully enshrines the principle that imprisonment should occur only after conviction by a court, not by arbitrary action of government.
25 February 2005 - Julian Burnside QC: Honesty matters: the ethics of daily life - "The essence of democracy is that the elected representatives are chosen because their constituents think this candidate or that will best represent their views in parliament. If a candidate lies about his or her beliefs and values, the democratic process is compromised. The greater the lie, the greater the damage to the true course of democracy."
Sydney Morning Herald
October 27, 2007
Desperate to leave Australia, Ahmed al-Kateb faced indefinite detention because no country would accept him. Now he finally has the chance to build a life here, writes David Marr.
moking a cigarette in the back yard of a Canberra architect's office last Wednesday was a young man with an old face who carries one of the most famous names in the legal history of this country: Ahmed al-Kateb. This week his incredible story reached something like a happy ending when he was issued a card carrying the words, "Permitted to remain in Australia indefinitely."
Nearly seven years after the navy rescued him from a fishing boat washed up on Ashmore Reef; six years after he begged to be deported from the country; and four years after the High Court came to the notorious conclusion that he could be held here for the rest of his life in immigration detention, al-Kateb has his Australian papers.
"My thinking is confusing," he admits. "Wow, I have a country now. I have somewhere to stay. I have a home. But I remember these things that happened to me. These things will not go just because of the paper." He is too relieved to have this card in his hands to be perturbed - as his lawyers are - by the obvious error on its face: "Nationality: Kuwait."
he whole point of this saga is that until a week or so ago, al-Kateb was stateless. And what Australia did to this stateless man was done because, when he wanted to put Australia behind him, no other country would take him. Ahmed al-Kateb made legal history as the man who couldn't get away.
He was born in Kuwait, the son of Palestinian refugees from Gaza. His parents had travel documents. He had no status whatever. When life turned sour for Palestinians in Kuwait after the first Gulf War, his family began to scatter. In late 1998 at the age of 22, posing as a pilgrim on his way to Mecca, he slipped into Jordan and lived there illegally for nearly two years.
The journey to Australia cost $US4000. "The smugglers suggested why not go to Australia, it's a freedom country, a safe place, have a good life there. And I said yes, all right, and left from Jordan for Indonesia on an Iraqi false passport." For the last leg of the trip he was loaded, with 36 others, onto a seven-metre fishing boat.
"Every night we stayed in the ocean it was storms, rain and terrible waves. We stayed about 11 nights. The boat was bad ... and the Indonesian sailors lost the way and didn't know where we were going. It was a terrible experience. I stayed about three days sleeping, dizzy and sick and really about to die. We had little bit of food. We had been eating rice, water. The motor was broken."
The navy found them stuck on Ashmore Reef a few days before Christmas 2000. So many boat people had arrived that year - nearly 3000 - that all sides of politics were talking of a national emergency. Australia's unique system of mandatory detention was proving no deterrent to asylum seekers. Al-Kateb was one of about 200 taken from Ashmore that day and delivered to Curtin, the grim - now mothballed - immigration detention centre in the desert outside Derby in Western Australia.
he system sorted him out swiftly. He was refused refugee status and almost at once began to ask to be sent home. Nothing came of those requests so he ploughed on, appealing first to the Refugee Review Tribunal and then to the Federal Court, "to show I am alive". He lost, and his renewed requests to be sent home yielded nothing.
He fell back into the numbing rhythm of Curtin: sleeping till noon, playing cards, learning to smoke, listening to rumours. "Imagine every day I wake up and I think OK that's my place for ever." This went on for nearly two years. As his spirits sank he became ill. "I am just waiting to die. That's my future. I just wait for death. All sorts of people were trying to kill themselves. I wasn't strong enough to do it."
On the camp grapevine he heard of an Adelaide lawyer of Palestinian background, Abby Hamdan. She advised him to make a formal application to be "removed" from Australia. Instead, he was taken to Baxter detention centre on the outskirts of Port Augusta in South Australia. There he learnt that Kuwait had refused to have him back and Israel would not allow him to enter Gaza.
Al-Kateb remembers the Immigration Department asking: "Can you go to Syria or Jordan or Egypt, can you sign a paper for this?" He says he replied: "Anywhere in the world you want to send me, send me. I cannot live in this place ... After a while they told me we cannot find anywhere in the Middle East and suggested, what about Asia: Malaysia, Vietnam or Thailand. I told them, wherever you want."
n December 2002, Hamdan asked the Federal Court to allow al-Kateb to be released until this hopeless diplomatic impasse was resolved. His case was in a queue. On April 15, 2003, the full Federal Court ruled that Akram al Masri, another Palestinian trapped in the detention system, should be released until there was a reasonable prospect that he could be deported.
As a result, al-Kateb was one of about a dozen detainees released a few nights later. With empty pockets and a handful of belongings, he was driven by an immigration officer into Port Augusta and dumped in the town square. "He took our bags and told us to leave the car, turned the car round. And he gone. We did not know anything. We had no money." Hamdan found him after a few hours and brought him to Adelaide. The department presented him with the bill for his detention: $83,000.
By various shifts and complications that have no bearing here, al-Kateb found himself a few months later sitting in the High Court in Canberra. His case had jumped the queue to allow an appeal against the humane outcome in the al Masri case as speedily as possible. The Immigration Department was determined to assert the right to hold failed asylum seekers for ever, if necessary, rather than release them.
l-Kateb recalls the surprise he felt as he sat in that vast court - surprise that his barrister, Claire O'Connor, stood up to the judges as she did, but most of all surprise that these people were talking about him. "I am tiny. I am just a refugee come to find somewhere to live. I don't want anything more. The High Court! I mean, I was worried. I wasn't sure they think there is a human sitting here. It's his life."
While the judges cogitated - and brawled - for the best part of a year, al-Kateb got on with the little life Australia allowed him on a series of bridging visas. "The first time was for three months. Then it was like three months, two months, two months, three months, one month, two months, four weeks." He was forbidden to work, denied social security and Medicare, and locked out of free education.
Lawyers, friends, refugee advocates and Christian charities supported him; TAFE colleges allowed him to study English on the quiet; and he was sustained by contact with Dr Jocelyn Chey, a China expert and former Australian consul-general in Hong Kong. He said: "She is my angel."
hey had met in Sydney after corresponding for 18 months. On the morning in August 2004 that the High Court was to deliver its verdict, Chey suggested he come to her house on the North Shore to hear the result. It was terrible.
The judges had split acrimoniously. The Chief Justice, Murray Gleeson, Bill Gummow and Michael Kirby said it was impossible - on the ground of fundamental principle - to give a minister the power to imprison people indefinitely simply because they couldn't be deported.
But a majority - Michael McHugh, Dyson Heydon, Ian Callinan and Ken Hayne - ruled against al-Kateb. McHugh remarked that this was both a "tragedy" for the man and proof that Australia needed a bill of rights. Even so, his negative verdict came to haunt his reputation in his last months on the court.
The most gung-ho of the judges was Melbourne's Hayne, who argued eloquently that detention must not be confused with punishment. Why? Because al-Kateb had broken no law. All he faced was non-punitive "segregation" - if need be, for life.
l-Kateb absorbed nothing that morning except the verdict. "He was absolutely distraught," recalls Chey. "I have never seen anybody reduced to such a state - unable to move or speak, and dreadfully frightened of being taken back into detention."
That didn't happen. The notion that the Minister for Immigration was a turnkey, with the sole power to imprison for life, caused a flurry in the press for a few days and a controversy in legal circles that has never died. But only one of the dozen men affected by the decision returned - very briefly - to detention. Everyone else remained at liberty, but under the crushing restrictions of their bridging visas.
Al-Kateb kept quiet. His name had entered political discourse but his face was unknown. There were no interviews and no press flurry. He moved into Chey's house for 18 months and did volunteer work, much of the time for Willoughby Council. "I was doing bush regeneration and I was working in the office of civil engineering doing some surveying for the roads and things. Very nice people there. Very helpful people. Very sympathetic."
ate in 2005, after years of campaigning by refugee advocates, the Government relaxed the brutal conditions of bridging visas. Al-Kateb was able to get a real job with a Canberra architect - Strine Design, Australian Environmental Designers - using the computer drafting skills he had acquired in Kuwait. "Very sympathetic and helpful," he calls his employers. "They understand what I am going through."
He goes "up and down", they say. Al-Kateb says it of himself: "I am always up, down, up, down. When you are up you have a good time. Then something remind you of all this pain, take you down." He is clearly not in great shape. He works, studies civil engineering at the Canberra Institute of Technology and fills his time playing the architects' obsession, petanque. His trophies sit above his desk.
Hamdan kept petitioning immigration ministers - first Amanda Vanstone and then Kevin Andrews - to recognise the impossibility of her client's position and grant him a humanitarian visa. The case has been supported lately by Kevin Rudd and Chey's local member, Joe Hockey. But the intervention that clinched the matter came in late September from the commentator and former Howard staffer Gerard Henderson.
With his wife, Anne, Henderson has been quietly and effectively intervening on behalf of detainees for some years. Al-Kateb's case he found "the easiest they'd dealt with". Andrews was on top of the case and handled it personally. On October 11 the minister granted the visa. "May I take this opportunity," he wrote that day to al-Kateb, "to wish you well in the future."
l-Kateb has no clear idea what that future will be. Surviving, he explains, has meant killing his dreams. Now they must grow all over again. He has found a counsellor, a good doctor and "very nice people" everywhere. But it's still up and down. He holds his papers in his huge hands and admits having them at last has caused him considerable pain.
"I paid lots of my life for these papers. I had gone through all this pain here, this worry, all this situation, all this scare - all because this papers." He brushes aside the suggestion that this is the end of a seven-year ordeal. "No. Thirty-one years. I was born a refugee. I go here, I'm a refugee. I go there, I'm a refugee. Now I have a home."