'Protect this man': so why is he still locked up?

Connie Levett Immigration Reporter
December 3, 2007

Photo caption: Fatah Said with a picture of her son, Ali Al Jenabi.

IT IS 12 months since the Department of Immigration found Australia had a "protection obligation" to Ali Al Jenabi under the United Nations Refugee Convention. Yet he remains detained at Villawood.

The department has since redrafted its decision, made an impossible demand for Iranian documents, and challenged whether international human rights obligations should override Australia's migration law in relation to character.

Mr Al Jenabi, an Iraqi asylum seeker who spent six years in Abu Ghraib prison after refusing to fight for Saddam Hussein, was described as an Oskar Schindler figure when he was on trial in Darwin for people smuggling.

He lodged a protection application on June 16 last year. By law, the minister is required to make a decision on such a visa within 90 days. Mr Al Jenabi has gained access to his departmental files by taking the Minister for Immigration to the Federal Court to force him to make that decision.

During the Darwin trial in 2003, Mr Al Jenabi told the court he became involved in people smuggling to get his mother and six other family members to Australia and that he assisted others, especially women and children who could not pay.

The Northern Territory Supreme Court accepted this was true, although he was found guilty of people smuggling and served four years in jail. His family have since been recognised as refugees and have permanent residency.

The departmental files, seen by the Herald, reveal a detailed 47-page decision record of Mr Al Jenabi's application, signed by his case officer, Kate Watson, on December 5 last year.

In the document she considered the character implications of his previous people-smuggling crime, and rejected it as a basis for refusing him a visa. "I find [he] committed a non-political crime outside Australia," she wrote.

Her decision distinguishes between people trafficking and people smuggling. "[Al Jenabi] was not involved in violence nor people trafficking, nor drugs nor property damage," it states. "He assisted people, especially his own countrymen, to willingly travel to Australia in order to access Australia's protection from the Saddam Hussein regime."

But Ms Watson's decision was incomplete. It required a departmental waiver of the criminal history clearance certificate from Iran, where Mr Al Jenabi stayed briefly after he fled Iraq. Iran does not issue clearances to people who were not legally resident.

In an undated file note after she submitted the decision, Ms Watson urges "it really needs to be finished soon as it has dragged on for weeks", noting that Mr Al Jenabi was in detention.

The department's Character Section was told in an email on December 19 last year "Iranians will not give a foreigner a penal cert [sic]. If they were not legal/registered there is no procedure to get around this so waiver only option". Character Section then asked Interpol in Canberra for the Iranian clearance. It responded by asking why this request was necessary.

Mr Al Jenabi's representatives say they were led to believe the decision was delayed because of ASIO clearances, but ASIO took no issue with Mr Al Jenabi.

In late January, the department got a new minister. Under Kevin Andrews, there was a renewed focus on character as grounds for rejecting applicants. Two weeks after he took the job, the department centralised visa cancellation and refusals on character grounds in Melbourne, where he is based. He would later use Section 501 character provisions to cancel the visa of Dr Mohammed Haneef, a decision overturned in the Federal Court.

Email correspondence after February within the department reveals two new hurdles in the Al Jenabi case. There was disagreement on how a protection visa applicant should be assessed and to what extent the character provisions of Section 501 of the Migration Act outweighed Australia's obligations under the refugee convention. There were also new allegations by the Australian Federal Police of possible criminal activity by Mr Al Jenabi in Australia, despite the fact he has been in jail or immigration detention since he arrived in 2003.

Responding to the redrafting of the Al Jenabi decision, a spokesman for the department said protection obligations was only one of a number of criteria for granting a protection visa. There was also health, security and character.

Today a new minister, Chris Evans, is sworn in. On December 14, in the Federal Court, Mr Al Jenabi will ask him to end his 18 months of uncertainty.


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