BY PAMELA CURR
Immigration law and family law have collided. In a landmark ruling on June 19, the Family Court found that it had jurisdiction over children held in immigration detention, and could make a ruling to release them if it was deemed harmful to their psychological well-being.
Immigration minister Philip Ruddock has tried to deny the right of the Family Court to act in the interests of children in detention centres on the grounds that the Migration Act overrides the Family Court in these matters. Ruddock will challenge the finding in the High Court on September 30.
This case, involving the Afghan family Ali and Roqia Baktiyari and their five children, has enormous significance because it could challenge the right of the government to hold children (and their families) in long-term detention.
With such high stakes, the government that gave us the "children overboard" scandal has resorted to similar tactics to stop the Family Court ruling. In an interim hearing on August 6, lawyers for Ruddock claimed that Roqia Baktiyari had asked to be moved to the Woomera housing project because of domestic violence. Under immigration department rules, husbands and sons more than 12 years old are excluded from the family housing at Woomera.
Roqia denied this lie vehemently. She said that Ali Baktiyari is a loving husband and described how he helped her as the pregnancy was becoming more difficult. She calmed supporters who were distressed at these allegations by saying that she and her husband know and expect lies from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and Australasian Correctional Management (ACM) but that the "Earth will still turn around no matter what they say".
Roqia explained that Ali requested that she be allowed to move to the Woomera housing project so that she could choose her food and cook for herself because she suffers from morning sickness. She is unable to eat the food at Baxter detention centre and was eating only oranges. He was worried for her and the baby. A friend explained that Ali, who never asks anything from ACM or DIMIA, requested that Roqia be allowed to go Woomera for her comfort.
Concerns for this baby follow the premature birth of Amina, the youngest child, who was born two months early. When Amina was born in the village in Afghanistan, there were no incubators or modern medical equipment. The baby was placed in the warmest room in the house surrounded by high pillows to keep a constant temperature and moved as little as possible. Because she was too weak to breast-feed, she was fed by dripping milk into her mouth. She survived despite her prematurity through the love and constant care of her mother, father and step-mother.
During the court proceedings, Ali and the children were woken at 5am and then made to wait until 7am before being taken by car to Adelaide. They were told that they were going to visit Roqia. They were then taken to the office of a psychologist where the children were "examined".
They spent three hours locked up in a small waiting room. Roqia asked if the door could be closed to give them some privacy but this was refused. They were not allowed outside and the blinds were drawn so that the room was dim. The children were angry at the deception and confinement and told the psychologist to come and see them in Baxter.
This family is being demonised by the minister to support his hard line on refugees and to promote a view in the community that asylum seekers are "illegal queue-jumpers" not worthy of human rights. Ruddock is afraid to release the Baktiyaris because these beautiful, articulate children will remind Australians about a cruel and brutal policy being enacted in their name.
The minister has been unable to deport the family because it is too dangerous for Australian consular officials to go to Quetta to fix the travel documents. Too dangerous for officials but not too dangerous for a mother, five children and a new baby!
[Pamela Curr is the national refugee spokesperson for the Greens]
From Green Left Weekly, August 13, 2003.
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