Heads or tails? Are lives so unimportant?
A shorter version of this article by me has previously been published on Independent Australia, titled “Toss a coin, get a visa”
During 2010 – 2011 I fought a mammoth battle against the Department of Immigration and Citizenship (DIAC). My husband, a removed asylum seeker, applied for a partner visa: I was his sponsor.
The visa was denied, I appealed and the decision was remitted back to DIAC. The visa was subsequently granted. I strongly believe the original decision was wrong; wrong due to defective administration. There were factual errors together with strains of both racism and sexism, amongst other issues. I will give one example. One of the reasons given was that my husband had not sent me any money. Let me share the reality. My husband had been kept in Australia for two years with no working rights and was returned to a third world country; he had four children to take care of and was in hiding. I am professionally qualified and employed in a first world country, yet he was supposed to send me money? I am positive had my husband been the wife and I the husband, this “reason” would not have been considered or mentioned. He had been back in his country a whole two months when we lodged the application. A person with NO complications would find it hard to find accommodation, employment and set themselves up within TWO months! We had complications!
I will say once I appealed, thankfully our case was resolved in an acceptable timeframe. This doesn’t mean the original decision wasn’t defective. It doesn’t mean the whole process didn’t cost us thousands of dollars we should not have needed to spend.
When I discovered there is an avenue for claiming minimal compensation, a scheme for Compensation for Detriment due to Defective Administration (CDDA), I lodged a claim. I lodged a claim for about half of what I estimate I should be able to claim. Why only half? Not knowing this process was available, I never kept a detailed record or receipts for every expense. The scheme is limited to financial loss, aimed to place the claimant back in to the financial position they would have been in had the defective administration not occurred. Nothing for pain and suffering, lost sick leave, lost holidays, fear or trauma.
I didn’t claim for the decisions related to my husband’s protection visa, it was just all too hard. I want to make clear the fact I didn’t try to claim for that period is not an indication of how I feel about that decision. Sometimes it just isn’t worth the fight emotionally or psychologically.
I couldn’t afford to engage yet another lawyer to handle this for me; I prepared the submission myself. I really had no choice financially after the expenses already incurred.
I lodged the claim during the first half of May this year. In August I received advice a case officer had been assigned.
In mid-October I received a preliminary findings letter from DIAC. I am not going to publish the correspondence in its entirety but one aspect of the letter made me laugh. It made everyone else I showed the letter to laugh as well, with one exception. The exception was a person who had spent 20 years in law enforcement. His view was “it is what it is”.
The particular part of the letter that stunned me the most was this.
The Department also acknowledges that different decision makers make take a different view of a matter and come to a different, yet equally valid, conclusion. Often the interpretation of facts will be finely balanced and having the position changed on review does not, on its own, ground a claim for compensation under the CDDA scheme.
I scratched my head. I read the paragraph again. I then swore profusely. Wouldn’t you? You suffer immeasurably at the hands of the public service of your country then they blithely tell you if you had been allocated a different decision maker, you had a, what, 50/50 chance of a different decision? There are only TWO options here, YES or NO. There is no “maybe”. I’m not sure what one can say about “interpretation” of facts. So YES and NO are equally valid? Try telling my teenage son that “Yes, you may go to your friend’s place” and “No, you may not go to your friend’s place” are equally valid decisions, all else being equal. I don’t think I could convince a twelve year-old of the “equality”, yet I am supposed to accept that logic as an adult? What about the legal principle of “a reasonable person”?
I would like to think that if I were charged with a serious crime the facts might carry a little more weight. At least there would be a jury of my peers to weigh those facts. Yes, innocent people have been convicted in a court of law and if and when that is proven I do believe they are entitled to compensation.
I’m a systems professional. At the time I was appealing my husband’s partner visa decision 69% of partner visa appeals were remitted back to the Department. That is, the appellant won. In my layperson’s innocence it seemed to me that if the majority of original decisions were sound, I could expect perhaps 10% to win on appeal. 69%? If I had an error rate of 69% in my job, I’d be fired! That is 69% of the denials that actually appeal. What of the ones who can’t afford it, or who wait and reapply a year or two later, or who just find somewhere else to live.
If I have a 50/50 chance of getting a yes or a no based on choice of decision maker, there is a systemic problem. One could even suggest defective administration. The system should be such that in the majority of cases two different decision makers should reach the same decision, based on the facts. If they do not, there should be checks and balances in place to ensure the decision is adequately reviewed.
Visa decisions impact on peoples’ lives dramatically. While I grant ours was an unusual case for a partner visa, I lived every day not knowing if a member of my family would be killed before I got them to Australia. I know of another couple in England (again the woman was the Australian) who was forced to remain in England another 12 months when her partner’s visa was denied. She desperately wanted to come home but would not leave her partner. A close family member in Australia was desperately ill at the time. Dicing with citizens’ health and wellbeing is not what I pay my taxes for.
I have been told one of the problems is DIAC are not used to dealing with citizens. Not with citizens who have five generations of family that have made Australia home. We are not “new Australians”, we expect respect and proper service from the, oh, that’s right, the public service! Had a New Australian read this letter, they would have probably felt defeated. I was just stunned that DIAC had the temerity to put this in writing and I responded accordingly.
At the end of the letter, in capital letters (the equivalent of shouting these days, I understand), I was warned if I did not respond in 28 days a decision on my claim would be made without my comment.
I was tempted to put the same warning on the bottom of my letter, but refrained.
As I was in the USA on a business trip when I received this communication, I responded on November 1, specifically requesting a response from DIAC. As I received nothing, towards the end of November I sent an email asking for confirmation of receipt of my letter. Finally, it was acknowledged my response had been received.
I can fight back. I’m an “old” Australian. What of the asylum seekers? Are they being bamboozled by similar “communications” with inadequate defences? The thought horrifies me.
The mainstream media don’t help. I once found an article about partner visas. The headline screamed “Surge in spouse visa applications ‘intimacy test’ exposes sham lovers. Hundreds deported“. Pretty emotive headline, isn’t it? WOW, I thought. An analysis of the facts revealed? 0.0578% or a massive 220 out of 38,000 (estimated from available data). My full analysis can be found at http://teamoyeniyi.com/2011/03/29/emotive-reporting-perhaps/.
I recognise DIAC has probably the toughest job in Australia of the public service departments. With the asylum seeker/refugee debate a constant politic football, they really can’t win. I recognise they have limited resources. None of this is any reason to toss a coin and play with peoples’ lives.
I recognise that in a large bureaucracy mistakes will and do happen. Systems fail.
Just don’t tell me all our pain and suffering and financial loss was the result of the toss of a coin.
I received no acknowledgement from the department to my response. In fact I had to email them to ask had they in fact received my letter. I received a one line response confirming my letter had been received. I replied on November 1. I had cc’d the Ombudsman’s office. That office responded as follows:
As you have sent us a courtesy copy of your facsimile to DIAC we will not investigate your complaint at present. If you are not able to resolve your concerns, you are welcome to contact us again.
I was actually quite encouraged by this. It read, to me, as if someone had actually taken a professional interest in the matter. After waiting 28 days for a response to my response, I wrote to the Ombudsman’s office in line with their advice, asking them to please commence an investigation and asking if they needed anything else from me. After all, DIAC probably have about 20 kilograms of paper on us. Surely they don’t need me to send them anything else!
They responded with:
We usually do not consider investigating a complaint until it has been raised with the agency involved. This gives the agency an opportunity to address the matter first. We find that this is usually a more efficient way of resolving a complaint. It appears from your email that you have not lodged your complaint directly with the Global Feedback Unit located within DIAC. We ask that you do this in the first instance before we will become involved. The contact details are:
I really have no problem with the reasoning, but why not tell me this in the first email?
Paper warfare. It becomes paper warfare and I understand why people just give up. Let Goliath win. The battle for fairness, respect and recompense is just too hard, takes too much time, too much effort. We poor taxpayers have jobs to go to, children to raise, homes to run. Battling Goliath just becomes another problem we don’t need, so we give up and they win. So it continues and nothing changes.
I know that by publishing this I may risk the claim not being found in my favour. Against that I balance my love of Australia. As a nation we should not, we MUST not, live in fear of the public service. They work for us, they should not rule us. We certainly need the money. We haven’t even bought proper wedding rings yet because the children’s education comes first and four teenagers are expensive!
I have subsequently received an update on progress, but still no decision. Today my husband started work at 6:30 am. He worked a full day and will work again tonight for another 5 hours and start again at 6 am tomorrow, New Year’s Day for a 10 hour shift.
So ends our 2012.