Robyn Oyeniyi is an Australian and has lived here most of her life ― but getting her husband and family home was a bureaucratic nightmare.
During 2010 to 2011, I fought a mammoth battle against the Department of Immigration and Citizenship (DIAC).
My husband, a removed asylum seeker, had 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, 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.
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 all just 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, so I prepared the submission myself. I really had no choice, financially, after all the expenses I 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.
Indeed, it made everyone else I showed the letter to laugh as well ― with one exception.
[caption id="" align="alignright" width="364"] Mr & Mrs Oyeniyi[/caption]
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 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 that, if you had been allocated a different decision maker, the decision may have been the opposite.
No, 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, which I may make on a whim, all else being equal. I don’t think I could convince a twelve year-old of such “equality” ― yet I am supposed to accept it as an adult?
Please…
I would like to think that, if I were charged with a serious crime, the facts might carry a little more weight that the toss of a coin. That there might 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 system’s professional. At the time I was appealing my husband’s partner visa decision, 69 per cent 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 per cent to win on appeal. 69 per cent? If I had an error rate of 69 per cent in my job, I’d be fired!
If I have a 50/50 chance of getting a ‘yes’ or a ‘no’ based, not on the factors in question, but merely because of the choice of the decision maker ― there is a fundamental, 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 that 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, oh, that’s right — the public service!
Had a New Australian read this letter, they would probably have just felt defeated. I was just stunned that DIAC had the temerity to put this in writing ― and so I responded accordingly.
At the end of the letter, in capital letters (the equivalent of shouting these days, I understand), I was warned that, 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, there was an acknowledgement that my response had been received.
Of course, I can fight back ― I’m an “old” Australian. But what of 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 that 0.0578 per cent has been deported ― a mere 220 out of 38,000.
(This is an estimate from available data ― my full analysis can be found at http://teamoyeniyi.com/2011/03/29/emotive-reporting-perhaps/.)
I recognise DIAC have probably the toughest job in Australia out of all the public service departments. With the asylum seeker/refugee debate a constant politic football, they really can’t win. And, yes, I recognise they have limited resources ― but none of this is any reason to toss a coin and play with peoples’ lives.
I recognise that, in a large bureaucracy, mistakes can, and will, 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.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
Creative Commons
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
