Australian Immigration Daily News

Should Australia have a more compassionate, more flexible approach towards asylum seekers? 

Or should it stick with its current approach, under which a person who makes an unsuccessful claim for protection, and who exhausts available reviews through the Tribunal and the Federal courts, is “expected to leave”? 

A report that was broadcast on the ABC’s “Australian Story” program last night, “Gone Girl”, puts a human face on these issues. 

The report covered the case of a young Iranian asylum seeker, Mojgan Shamsalipoor. 

As recounted by Ms Shamsalipoor’s lawyer, Kevin Kadirgamar, she suffered horrendous abuse in Iran before coming to Australia.  According to her account, she was beaten and physically abused by her stepfather, and raped by him at the age of 15. Her stepfather then threatened to force her into marriage with a man who was in his late 50s. 

Against this beyond terrible background, Ms Shamsalipoor’s mother encouraged her to flee from Iran. 

So, accompanied by her brother, she travelled from Iran to Indonesia, and then by boat to Christmas Island.  She was detained first on Christmas Island, then in Darwin, and was then placed in community detention in Brisbane, and then ultimately granted a bridging visa while her claim for a protection visa was being processed by the Department. 

There is a very happy and positive side to Ms Shamsalipoor’s story.  While she was out of detention on her bridging visa, she met a young Iranian man, Milad Jafari, who had come to Australia with his family as a refugee – according to the ABC story Mr Jafari’s father was a political activist in Iran.  His family also arrived in Australia after making a hazardous journey by boat.  

Ms Shamsalipoor and Mr Jafari fell in love with each other, and ultimately married. She also enrolled in high school in Brisbane, with ambitions of becoming a midwife. 

But here is where her story takes a tragic and heart-wrenching turn. While she was living with her husband, Mr Jafari, Ms Shamsalipoor’s application for a protection visa was refused by the Department. According to her lawyer, Kevin Kadirgamar, her reticence about being able to speak about the sexual abuse and rape she claimed to have suffered at the hands of her stepfather apparently complicated her ability to persuade the Department that she was owed protection. 

And as a law professor who was interviewed on the ABC program, Andreas Schloenhardt of the University of Queensland said, the system of protection under the Migration Act doesn’t adequately address situations like Ms Shamsalipoor’s, where the person seeking protection has been subjected to “individualized violence” at the hands of family members. 

After her application for a protection visa was refused, Ms Shamsalipoor was taken back into immigration detention.  She was first flown to the Wickham Point Detention Centre in Darwin, and was then taken back to a detention centre near Brisbane. 

The ABC story reports that an application that Ms Shamsalipoor made for Ministerial Intervention under section 417 of the Act was refused in February 2016.

So, as the situation now stands, Ms Shamsalipoor is still (rotting) in immigration detention, with the prospect of remaining there indefinitely.  Her own words describe just how devastating this situation is to her: 

“It’s very upsetting and hurtful because we’re just young and we love each other and all our dream was for living together and make our life and be happy. I will kill myself before I go back to Iran. Dying peacefully is better than die with torture….” 

This is not a case where the Minister is powerless under the legislation to act on behalf of Ms Shamsalipoor. 

For one thing, even though her first application for a protection visa was refused, the Minister could personally exercise powers under section 48B to enable her to make a further application for a protection visa. Perhaps if a further application were allowed, she could successfully establish that she is owed protection obligations by Australia. 

And it is not as if the Minister could not, if he were so inclined, consider a further, or “repeat” request that he exercise his powers to intervene under section 417.  While the current Guidelines concerning the circumstances where Ministerial Intervention state that the Minister “does not wish to consider repeat requests”, the Guidelines also state that the Minister’s powers to intervene are not limited by the Guidelines, and that the Minister may consider intervening even with respect to a repeat request where he finds that it is in the public interest to do so. 

It would certainly appear that this case does indeed present “unique or exceptional circumstances” as envisioned under the Guidelines.  There surely seem to be 

• “strong compassionate circumstances that if not recognized would result in resinous, ongoing and irreversible harms and continuing hardship to an Australian citizen or an Australian family unit”;
• “compassionate circumstances regarding the age and/or psychological state of the person if not recognized would result in serious, ongoing and irreversible harm and continuing hardship to the person”;
• “circumstances not anticipated by relevant legislation”
• “unfair or unreasonable results” arising from the strict application of the legislation;
• that Ms Shamsalipoor cannot be returned to Iran due to circumstances beyond her control (e.g. as indicated in the ABC report, that Iran may well not allow her to return);
• that her particular circumstances are such that there is a sound basis for believing that if Ms Shamsalipoor is returned to Iran, there would be a significant threat to her personal security, human rights and human dignity, and that she would be likely to experience further trauma if returned to Iran. 

The ABC story reports that there has been a significant public campaign on behalf of Ms Shamsalipoor, and that Graham Perrett, ALP Member for Moreton has risen in Parliament to speak on her behalf. 

So we’ll have to wait and see what happens. 

Will this be a case where the power of love conquers all? 

We do know that there have been cases where visa cancellations made on character grounds have been overturned on the basis that there has been a failure to consider that the practical consequence of the cancellation will be that the person will be held in immigration detention indefinitely. 

When viewed through the lens of those cases, is this really a situation where Ms Shamsalipoor should be in detention indefinitely?  It seems obvious as day from the ABC report that she is a wonderful, courageous person who would contribute positively to the Australian community. 

As readers of this blog might imagine, it’s my personal view after seeing the story that Ministerial Intervention should be exercised in Ms Shamsalipoor’s case, and that if I were counseling the Minister I would encourage him to grant intervention, in a heartbeat. 

What do you think?

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