The case of a Hazara refugee whose Australian citizenship was arbitrarily delayed and vexatiously questioned serves to highlight the Department of Immigration’s continued administrative bungling. By Abdul Karim Hekmat.
Hazara refugee Nabi Zaher’s citizenship fight
For eight months, Nabi Zaher waited for news of his citizenship ceremony. Nabi lives in Wollongong, a 90-minute drive south of Sydney. A Hazara refugee, he had passed the citizenship test on January 24, 2015. Two weeks later, he received an approval letter from the Department of Immigration and Border Protection and was told to wait for his citizenship ceremony, the final stage of becoming an Australian citizen. His wife, who had applied at the same time as he had, received her citizenship in June 2015.
Since then, Nabi has frequently checked his mailbox. On September 16, 2015, Nabi received a letter from the Department of Immigration and Border Protection. On opening the mail, he was excited, thinking it must be good news. But excitement turned into disbelief and shock as he read the letter, which was laced with legal terms such as “court proceeding”, “bogus” and “fraud”. The letter said Nabi had provided false documents as part of his citizenship application and his passport was “fraudulently altered”. He was given 90 days from the date of the notice to “institute proceedings against the Commonwealth in a court of competent jurisdiction” or to “recover the document/s; or seek a declaration that the document is not forfeited”.
At first he thought the department must have made a mistake, sending a letter intended for someone else. “I was very shocked. It was hard to digest the allegation that I had ‘fraudulently altered’ my passport,” Nabi told The Saturday Paper. “This was an original Afghan passport I had obtained from Kabul. I had travelled to a number of countries with this passport and had a US visa on it which was issued after a thorough investigation. If anything was wrong with my passport, they would not have issued a visa.”
Within an hour of opening the letter, Nabi wrote an email to the department. He explained that he did not accept the department’s assessment. But there was no response from the department. He got worried. He consulted Legal Aid, which advised him it was serious. His citizenship application could be rejected and then his permanent visa would be revoked by the department on character grounds. He would then be detained and likely deported. “I was not so concerned about myself,” he said, “but about my two children, whose names had been included in my citizenship application.”
Nabi was not a boat arrival. He arrived by plane as a United Nations High Commissioner for Refugees (UNHCR) accepted refugee about seven years ago. He had all the documents with him, including letters from his former employers. He would not have left Afghanistan if there were no threat to his life. He had a good and well-paid job, working as a senior program manager with the National Democratic Institute (NDI), a US non-profit.
Despite the risk to his life while crossing Taliban-dominated areas, Nabi was enjoying his job, which involved travelling to many provinces, delivering projects on good governance, democracy, citizen participation and capacity building for the locals. But an attack that targeted him in front of his home in Kabul in 2008, that nearly killed him, compelled him to leave the country for Pakistan.
In Pakistan, he applied for asylum through the UNHCR in Islamabad. Within a year, he was recognised as a refugee. He was then accepted by Australia, through a family connection to the country, and after a waiting period of more than two years arrived in August 2010.
He enrolled at university in a business management undergraduate course. Four years later, he became a university medallist and graduated with first-class honours. He was offered a PhD scholarship, which he accepted.
Nabi was eight months into his PhD, and two months into presenting his proposal, when he received the letter from the department. “It was crazy and stressful,” he said. “While I was preparing to present my PhD proposal, this took over everything else. I was basically fighting whether I could remain in the country.”
It was Nabi’s first time dealing with the legal system here, which he found hard to navigate. Nabi could not afford, with his meagre living scholarship, to pay a private solicitor’s fee. He was exhausted and sickened by the whole process, he told me. “Let them deport me, I am tired,” Nabi had told his family and friends.
The legal firm Baker McKenzie agreed to take his case. They had Nabi prepare a detailed story about the granting of his passport.
In an effort to prove he would be a good citizen, Nabi also began writing about his work as an interpreter, about his PhD studies, about his teaching at the university, about his children being top of their classes at school. He backed up his statement with certificates and letters. “He is a role model refugee; he will make a big contribution to Australia,” one said.
His legal team hoped the department would look at the evidence and arguments and change their views. “I and my team of four lawyers collected and sent all the evidence to the department, but they neither accepted nor refused,” Nabi said. “They kept me in suspense so that the time lapses the deadline.”
On the 90th day, the last day before the deadline to respond, Baker McKenzie filed a case to the Federal Court in Sydney, challenging the department’s allegation of fraud. A court hearing was set for April last year. For the subsequent few months, Nabi spent his time gathering evidence and preparing his “passport story”. The threat of deportation loomed over him. It robbed him of sleep. As part of his case, Nabi had to have a forensic examination of the passport prepared, which cost him thousands of dollars. It found the passport was not altered or changed in any way.
A week before the Federal Court hearing, Nabi got a call from his lawyer saying the case had been dropped. “I was so relieved, especially for the fact that I had cleared my name from accusation of fraud which never sat with me from the beginning. I stood to my words to the end.”
People closely involved in Nabi’s case, who did not want to be identified, told The Saturday Paper the department totally disregarded the initial evidence, documentation and explanation that Nabi presented. He would not have had the gruelling experience of preparing for court had the department listened to his story and examined his evidence.
Nabi said he has come across “a high incompetency” in dealing with the department. “There is one thing I learnt, though the hard way: how utterly incompetent they are. There is no doubt about it.”
In the department’s document, names were continually misspelled and questions to which the department already had answers were asked multiple times.
On one occasion, Nabi received an email from the department that shook him. It asked him to check his criminal history in the attachment. But there was no attachment. “I was so shocked. It was Friday afternoon,” he said. “Imagine you receive an email like that and your whole weekend is ruined.”
He had committed no offences, but convinced himself there must be some sort of infraction. “Maybe I have done something wrong which I am not aware of and it’s only the Department of Immigration that knows it.”
He wrote back to say that there was no attachment in the email about his “criminal history”. On Monday, he received an email saying the email was not intended for him.
Refugees, especially those who arrived by boat, have to pass a very vigorous test for citizenship. Some have had their applications cancelled or arbitrarily delayed. Many can’t afford to pay legal fees when complications arise. An Iranian refugee, who was interviewed by this paper, said his citizenship was cancelled and his visa was revoked because the department suspected him of providing a fake driver’s licence document. He had waited three years for his citizenship ceremony.
“I was lucky to have the support of people around me,” Nabi said of his experience. “If I did not have their support, who knows where I would be now.”
There are thousands of refugees on permanent protection visas, most who arrived by boat, who have had their application delayed for no apparent reason. They live in a state of despair but the department is either unresponsive or says it is “under process”. In September 2015, The Saturday Paper wrote about the department’s delay in issuing citizenship to Hazara refugees who had permanent residency. The matter was taken to the Federal Court by two Hazara refugees who had waited 18 months for their citizenship ceremony, supported by the Refugee Council of Australia. The Federal Court ruled in November that the department unreasonably delayed their citizenship. It may provide some hope for those in similar situations now.
Even after the department conceded its error, Nabi’s ordeal continued for several more months. He was interrogated again. This time, he was asked to provide the names and numbers of his siblings and relatives back home. His former employer in Washington was contacted to confirm Nabi’s identity. After two years, Nabi and his two sons, aged 12 and 15, received their citizenship in a ceremony on November 9. His colleagues and the people who supported him attended. “I was so relieved,” he told The Saturday Paper. “It was a nightmare. I am glad it’s over. The whole purpose of this exercise was to torture me.”
This article was first published in the print edition of The Saturday Paper on Feb 25, 2017 as "Citizens oppressed".
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