A Kashmiri shepherd meets Australian refugee detention policies for 1,792 days
Less than five hundred metres from where Stephen Khan lives there's a constant riot of arrival and departure. Stephen Khan, however, isn't going anywhere. He hasn't been going anywhere for more than three-and-a-half years. He's the fifth-longest serving detainee in Australia, the second-longest in WA, the longest in Perth...
Stephen Khan was released from the Perth detention centre on August 6, 2003. On that day he had been 'inside' for four years, ten months, and twenty-eight days. Here is his story.
Update 20 August 2003 (from Asian Human Rights Commission) - We are pleased to be able to give you good news that Mr. Stephen Khan, a Kashmiri asylum seeker, was released on 6 August 2003 after five years of immigration detention. Federal court judge Malcolm Lee agreed to place an interim injunction against immigration Minister Philip Ruddock enabling 28 year-old Stephen Khan to be released until a Federal Court hearing into whether his indefinite detention is lawful. The hearing could be six to eight months away. Mr. Khan was arrested and tortured by the Indian government before fleeing the disputed territory in 1998. He had been in detention in Australia since 9 September 1998 after failing an asylum claim.
However, the Federal Court released Mr. Stephen Khan on certain conditions and there still exists the possibility of his deportation to India. The conditions include that he has to reside at certain place and shall not live elsewhere; he has to report in person two times and by telephone three times each week to the office of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and he has to leave if the Australian government orders him to leave. Mr. Khan's lawyer, John Cameron, has foreshadowed a constitutional challenge, arguing that the government has been illegally using Mr. Khan's detention as a deterrent and a punishment.
By David Cohen
April 17 2002
This article also appeared in nettime.com under the title 5th longest serving asylum seeker in detention.
Less than five hundred metres from where Stephen Khan lives there's a constant riot of arrival and departure. On an average day at Perth's domestic air terminal, nearly 10,000 people either fly in or out of the city, coming from or going to more than 60 locations. At times the check-in line for flights to Melbourne and Sydney snake out the sliding doors to the pavement. People climb out of taxis, lug suitcases, get into cars - they're on the move.
Stephen Khan, however, isn't going anywhere. He hasn't been going anywhere for more than three-and-a-half years. He's the fifth-longest serving detainee in Australia, the second-longest in WA, the longest in Perth - and is one of about 20 asylum seekers who have been in detention for more than three years.
He lives at the Perth Immigration Detention Centre, a squat anonymous brown 1960s building just across from the terminal. The Centre blends in with the unlovely and utilitarian architecture of the buildings around it - until you notice the razor wire and barbed wire strung around the top of the high brick walls.
The Centre is set on a plot of land little bigger than the typical suburban quarter-acre block. But instead of being home to a family, it holds up to 50 people who aren't welcome in Australia. Khan sleeps with five other men in a bunk bed-filled dormitory about half the size as a family living room. With that many people in the room, sleep can be elusive. If one man is awake, the others usually are as well. The slightest sound rouses those who have managed to drop off to sleep. Since he's been in the Centre, Khan's sleep patterns have changed: he usually nods off at about three o'clock in the morning, and wakes around noon. Two of the dormitories lead out into a small exercise yard. The yard sometimes has up to 40 people in it - if a farmer kept 40 animals in the same-sized space, he'd be pursued by the RSPCA, and his animals would be taken away from him.
There's a recreation room with a pool table, three toilets and four showers. There's a laundry, kitchen and store. Beyond the main security door is the property room and nurses' quarters, the dining room for Australian Correctional Management (ACM) staff, a family room, control area and a new recreational room under construction. The Centre's capacity will soon be 60 - more rooms are being converted to dormitories. There's also a visiting room. It's in this room where Centre detainees can meet people who have come to see them. Inside are plastic chairs, a long table, a Coke machine, three tatty sofas and pictures of a European mountain scene and dolphins on the walls. Getting into the visiting room takes a few minutes. To visit a detainee, you have to be on the official list. You go through the front door and fill out a form, indicating the 100 points of identification you have (a passport scores 100). You divest yourself of metallic objects and store them in a locker. Once ushered past the first security door, you sign the register and are scanned with a metal detector. A plastic strip is attached to your wrist.
"What's this for?" "Security," I was told.
Once through another security door, you walk past the staff dining area and are escorted into the visiting room. You stare at the snow-capped mountains in the picture on the wall and wait.
"The strip is in case there's a fire or something like that," Khan explained to me. "That way the guards know not to get you mixed up with the rest of us."
The visiting room can get very crowded, especially on weekends. There have been 25 people in the room at one time: babies, children, adults, detainees and their visitors; perched on sofa arms or milling about. Khan never expected he'd spend so much of his life next to an Australian airport. He was born in Kashmir, the mountainous valley of lakes and rivers subject to a long-term territorial dispute between India and Pakistan. His home village, Pulwama, is south-west of the Kashmiri capital, Srinigar, and not far from the Pakistani-controlled sector. With its houseboats on the lakes, Srinigar used to be an exotic tourist destination, but twelve years of ugly conflict between India and Pakistan over the land have put an end to that. There are many groups in Kashmir either fighting or agitating for independence - like the Islamic Front, the Democratic Freedom Party, the Jamiat-ul-Mujahideen and the Al Umer Mujahideen - and the Khan family was swept up in the slipstream of separatist violence.
"I was 20, and studying for a diploma in mechanical technology at Srinigar Polytechnic," Khan recalls. "One day I was told my father had been killed by Indian security forces. I went back to Pulwama and viewed my father's body. There were visible signs of torture."
Khan says his father's fatal mistake was allowing a separatist group, the Jammu Kashmir Liberation Front (JKLF), to use his printing press to issue anti-government literature.
"My mother was extremely distressed and eventually collapsed into a coma," he says. "She never recovered, and died three months later."
Two years later, Indian security forces arrested Khan and three friends. Since his father's death, he'd become increasingly involved with the JKLF - protesting peacefully, he says, against the Indian government for an independent Kashmir.
"After a search of our home they found some anti-government mujahideen literature," he says. "We were taken to an interrogation centre, separated and tortured. I never saw two of them again. I was stripped and forced to endure the nights in a freezing cell. They regularly threw water on me. Lights were shone in my face and I was woken up at odd hours."
Then, he claims, his captors took a wooden roller and put it on his legs while he was held down. A man stood on the roller and rolled it up and down.
"The pain was enormous," he says. "They kept asking questions about the mujahideen, but I didn't know anything about them. Then they ripped out one of my fingernails and poured chili into the wound. That was very painful and horrible."
After about ten days in captivity, Khan was told he was going to be moved. He presumed this meant he was going to be executed. But he got lucky.
"Our convoy was ambushed by the Pakistani guerilla group, Lashkar-e Tayyaba - a section commander was one of the prisoners," he says. "They freed me and saved my life."
Khan escaped, and spent a year as a fugitive in Kashmir and the Punjab, a northern Indian province below Kashmir. By 1997, he'd had enough, and flew to Singapore on a false passport. He went to the port and stowed away on a container ship, with no idea where it was going. It was a relatively short journey: the ship docked in Port Moresby, Papua New Guinea's capital. While in Papua, Khan acquired the name Stephen. Church workers there couldn't pronounce his real name, and he uses his new name for fear of reprisals from the Indian security forces, should be he returned to India. Khan decided to try and reach Australia. He almost didn't make it - he and five others crammed into a dinghy that had a 40 horsepower engine, and aimed for Queensland. For seven days they battled monster waves, sharks and crocodiles.
"I can't swim, and the waves were huge," he recalls. "At times we were vomiting, crying and just praying we wouldn't die. Eventually we made it to Saibai Island, in the Torres Strait."
Khan had arrived in Australia - it was 9 September, 1998. He didn't have any documents on him. It was a long way in both time and distance from Kashmir. He didn't know much about this country, but he had heard it accepted refugees. Unlike many other asylum seekers, he hadn't paid anyone to get to Australia. He considered himself a persecuted person, but expected there would be an initial period of questioning and detention. Nearly three-and-a-half years later, he's still in detention, and has been moved from Queensland to Perth, via Port Hedland. How is it so? How can a person endure torture and fear, uncertain travel, no income and be locked up for so long? Khan's first mistake was during his first interview with Australian authorities in Queensland. He told them who he was, where he was from and how he had got to Australia - but he didn't mention his arrest and torture in Kashmir.
"They wanted to know how I'd arrived, what routes I took, what documents I had," Khan says. "They didn't ask me about torture. They said, 'we'll give you a lawyer and you can apply for a protection visa.' Until the lawyer arrived, I was in isolation. When he came, he said I should tell them everything. I gave him my whole story - so then there was a problem, because I hadn't mentioned the torture."
More than 18 months ago, Amnesty International had become concerned at the length of time Khan had been in detention. In a June 2000 letter to the Minister for Immigration and Multicultural Affairs, Philip Ruddock, they wrote:
"...we note that the Department questioned Khan's credibility because initially he did not mention his arrest and torture. Amnesty would like to point out that often asylum seekers do not disclose all information on arrival, especially after long journeys when the asylum seeker may be tired, disoriented and fearful."
There's also an issue over Khan's identity. He's told officials his name, and where he was born, and other details about his life - but without papers and documents, it's tricky convincing authorities he is who he says he is.
"The Australian Government knows he's from India," says his lawyer, Mary Anne Kenny. "They want him to fill out a passport application form so they can deport him - but he refuses to sign the documents. They have said they're satisfied he's a Kashmiri, and that he was probably a member of a separatist group. But, because he wasn't a prominent member of a separatist group, he should be able to go back to India and live somewhere else instead of Kashmir."
It's ironic - Khan isn't a big enough troublemaker to perhaps warrant a visa. If he was a lawbreaking and prominent separatist identity, he might be able to stay here. As it is, he's not dangerous enough. So the Refugee Review Tribunal (RRT) suggested he return to a 'safer' part of India to live.
In a letter to Immigration Minister Philip Ruddock in April 2000, the Kashmir Council of Australia claimed no Kashmiris are safe in India.
"To be in the fighting age is a crime itself to qualify for death," the Council wrote. "In (our) opinion Khan will certainly face death if he decides to go back to India. He will be safer in Australian jails rather than in the so-called save (sic) havens of India."
Kenny has struggled to obtain information about Khan's circumstances. Most disturbingly, a Freedom of Information application on Khan's behalf submitted more than 18 months ago stills shows no sign of her seeing documents relating to his case.
"I can't get confirmation of what they've done and haven't done," she says. "In July 2000 I submitted an FoI request, seeking documents relating to his removal back to India. In September, I received some documents - but they weren't the right ones. In May 2001, I was told the relevant documents weren't on the file, then they said they couldn't find the file. I've complained to the Ombudsman, who requested the documents urgently."
The Immigration Department says, bureaucratic blunders or not, Khan has exhausted all legal moves to stay in this country.
"He would have been released from the Centre a long time ago," a spokesman for Ruddock says. "As he's refused to provide proof of his nationality, the Government is unable to issue documents. He's not unable to provide the details, he's simply refused."
The spokesman says Immigration officials are going through rolls in India - working their way through villages - in order to try and locate definitive proof of Khan's identity.
"It's going to be long, slow process - if he was more cooperative it could have been established a long time ago. Until the Government of India are satisfied about Khan's identity, we will not issue travel documents to him. "He's certainly one of the longer-serving detainees ... he believes if he holds out long enough, we'll give in. That strategy is not a proper basis on which to allow people to stay in this country."
"I don't believe I'll be allowed to stay," Khan says. I've seen other detainees deported after years in detention. But I do believe that as long as I'm here my life is safe. No human being wants to die."
Khan's RRT application was rejected in January, 1999. Afterwards, he says, he was depressed.
"I was convinced I was going to be sent back to India," he says. "I had no idea about the Federal Court (the appeal process) then. I was put in detention for seven days, in a padded room. I also went on hunger strike, and lost up to 20 kilograms."
Thinking he was going to be returned to India, Khan decided to escape from detention as soon as he had recovered from his hunger strike - which was about three months later. The spark for the resolution was a detainee from the Punjab telling him he had some money, and they should escape together.
"Myself, another Kashmiri and two Punjabis decided to escape," Khan says. "The Punjabis had been students, and were caught in South Australia before being sent to Port Hedland. One of them had $2000 hidden in the heel of one of his shoes. They knew what was happening in Kashmir, said they had this money, and that they would help."
So, early one morning in April 1999, Khan and three other detainees made their big break. They went over four fences of wire (one 10 metres high) in sixty seconds and escaped. As they did, an Iranian detainee saw them and shouted she'd tell authorities.
After escaping they went to the beach and washed the blood from their hands (caused by cuts from the wire), but didn't know what to do next.
"One of the Punjabis had trouble walking - I think after he jumped from the fence he twisted his ankle," Khan remembers. "We went back into town, to the post office, and rang a taxi from there. But we didn't know where to go. We thought maybe we should catch a bus to Perth or Melbourne."
When the taxi arrived, the driver took one look at them and said it would be a payment-up-front fare. The four escapees told him they wanted to go to Karratha, 245 kilometres away. The driver said it would be about $350.
"We thought we could catch a bus from Karratha - the driver suggested he drop us at the McDonalds," Khan says. "We arrived there and we got out of the taxi. The staff inside told us they'd be open in 15 minutes."
Khan and his fellow escapees couldn't wait. The Golden Arches! Fast food! They were hungry, and were keenly anticipating the McMuffins and hash browns. With the Punjabi's cash, they could've bought hundred of McBreakfasts! Things were starting to look much better - after a feed, they'd be on the move again. The two Punjabis decided to sit out the wait at the rear of the building, and walked around the wall, out of sight of Khan and the other Kashmiri.
"After about five minutes of waiting, the taxi came back," Khan says. "We thought he wanted breakfast, too. He drove in a circle in the car park, and then drove off."
A short time later, vehicles pulled up in the car park and disgorged Federal and local police. Khan had a sinking feeling he wasn't going to be able to buy his egg and sausage McMuffin, but tried to bluff his way out of trouble.
"We didn't think they'd come for us - how could they know we were there?" he recalls. "They said, 'What's your name? Where are you from?' I said I was a student, and I was here for a wedding. They said, 'Where are the other two guys?' I said, what other two guys? But they said, 'Yes, the other two who escaped with you.' They told us to put up our hands and spread our legs. By the time we got in the van, the two Punjabis were already in there, and they took us to the Karratha lockup."
In his subsequent court appearance, after he'd spent a week in the South Hedland lockup, Khan was made to serve as an example. He pleaded guilty to escaping from custody, and was hoping for a six-month good behaviour bond. But the prosecutor argued a custodial sentence was needed as a deterrent: there were 350 detainees at the Port Hedland Detention Centre, and letting Khan off scot-free would send the wrong message to those people.
"I served three months in prison," Khan says. "Afterwards I was transferred to Perth. Conditions in prison are better than those in detention centres, so this could hardly be considered punishment. While I was in prison I was allowed to study: I was admitted to TAFE for a course in Small Business Management, but when I was transferred here I had to stop."
Since his arrival in Australia, Khan has spent 1,273 days in detention. 956 of those days have been in Perth. He's kept himself occupied: his spoken English is excellent, whereas before he came here it was rudimentary. He takes a keen interest in current affairs - the detainees get a copy of The West Australian and The Australian every day to read - and is especially interested in reporting on the asylum seeker issue. An article on a possible plan by the Federal Government to deal with long-term detainees, for example, prompts hours of discussion in the Centre. Khan is also responsible for bringing Foxtel to the Centre. ACM used to hire videos for detainees: it was appreciated, but they soon got sick of watching the same movie several times per week, before the new batch arrived. Khan crunched the numbers and showed ACM it would save them money if they stopped the videos and got Foxtel. Now they watch news, sports and music.
"We also really like the animal and nature documentaries," Khan says.
And study is a possibility this year: some people at Murdoch University in Perth are seeing if Khan can begin some type of external course with the institution. Khan is aware the Perth Detention Centre is preferable in many respects to the other ACM facilities in WA, Curtin (at Derby) and Port Hedland. He's more accessible to visitors, and the relatively-small number of detainees make for a more human relationship with the ACM staff. But living in a small space with other desperate people takes its toll. There have been suicide attempts and mental breakdowns as other detainees crack under the uncertainty and sense of hopelessness.
And the Perth detainees have had to bunk down with some decidedly unsavoury types. On a recent visit to the Centre, I was waiting in the visiting room for Khan to arrive. Also present was an overweight man in his 50s, talking with two visitors. He was discussing with his guests on how best to avoid the media when he returned to New Zealand the next day. The man was Rodney James McCormick, described by WA Attorney-General Jim McGinty as a "very serious sex offender." McCormick had been imprisoned for 12 years, after being convicted of sexual assault and deprivation of liberty. Once he had served his sentence, the WA Department of Justice handed him over to the Federal Department of Immigration, who deported him to his native New Zealand. (McCormick failed to give the media the slip. Hounded by reporters and TV cameras at Auckland airport, he eventually tried to take refuge in a prison.) Another recent deportee from the Perth Detention Centre was David Little, who was put on a plane to London last month. He killed his wife and allegedly raped her daughter. What can it be like for asylum seekers, sharing living quarters with murderers and rapists?
What would Khan do if he was given a visa?
"I just want to live a normal life," he says. "I'd like to study, probably, and finish my diploma. I don't want to be a burden on the taxpayer. I'd try to be a good citizen."
Would he stay in Australia?
"I don't know," he says. "I want to live wherever my life is safe. I didn't choose to come here - I just ended up here. I want to live a normal life."
He says his present existence, in a legal limbo, is frustrating and senseless.
"Three years behind razor wire is too much," he says. "It doesn't make sense: if I didn't have problems in Kashmir, would I choose to stay this long in detention? Surely three years is enough to check my character and health? Do I have to stay in detention forever? Sometimes I feel like I'm in a grave with four walls. My morning starts with fear, the days are spent in limbo, and the evenings in defeat."
From The Australian
By Belinda Hickman
August 07, 2003
A KASHMIRI asylum-seeker was released yesterday after five years of immigration detention.
Federal Court judge Malcolm Lee yesterday agreed to place an interim injunction against Immigration Minister Philip Ruddock enabling 28-year-old Stephen Khan to be released until a Federal Court hearing into whether his indefinite detention is lawful. The hearing could be six to eight months away.
Mr Khan's lawyer, John Cameron, has also foreshadowed a constitutional challenge, arguing that the Howard Government has been illegally using Mr Khan's detention as a deterrent and a punishment.
Mr Khan has said he was a Kashmiri separatist who was arrested and tortured by the Indian Government, before fleeing the disputed territory in 1998.
His application for refugee status in Australia has been refused. While he has agreed to be deported to India, authorities there have moved slowly to approve the process, claiming they are not assured of his identity.
A palpably relieved Mr Khan emerged from the detention centre at Perth's domestic airport, where he has been kept for the past four years, just before 5pm yesterday after refugee advocates posted a $3000 bond.
"I can't believe I am free," he said as he wiped away tears.
"It has been a nightmare for me. It is just great to be out and to be free after such a long time. I want to walk on natural grass, and there are no more locks and things like that."
Mr Khan's release follows a ruling of the full bench of the Federal Court in April that a Palestinian detainee, Akram al Masri, be released from detention while waiting to be deported, after his refugee status was denied.
The Howard Government is appealing against that decision in the High Court, concerned it will set a precedent that could affect the detention of hundreds of other detainees in Australia.
A spokesman for Mr Ruddock said yesterday that Mr Khan was one of up to 20 people who had been released by Australian courts without visas while they waited for deportation.
He said Mr Khan had not co-operated with authorities in establishing his identity.
"We are now in the position of the court ordering the release of someone whose identity is unknown to us. It is always a concern if we do not know someone's true identity."