The Detention of Thomas Yadegary: Between a Rock and a Hard Place
By David Hall
Thomas Yadegary - A successful Teppan Yaki chef in 2004 - for the last 23 months detained in Auckland Central Remand Prison
The case of Thomas Yadegary, an asylum seeker who has been detained in Auckland Central Remand Prison since November 2004, is a good illustration of just how murky and complex the realm of asylum policy is. As such, there are rarely straightforward solutions to the difficulties that asylum seekers present to the nation they arrive in. There are, however, compromises that are more tolerable than others. By attempting to deport Yadegary and by keeping him in penal detention until this is arranged, the New Zealand government has settled upon a most unpalatable response.
Has Yadegary's Religious Freedom Been Overlooked?
Thomas Yadegary (centre) with Bill Clinton. The Refugee Status Appeals Authority (RSAA) was convinced he was a genuine Catholic convert and noted the penalty for converting from Islam to Christianity was death in Iran – however the RSAA considered this sentence was unlikely to be carried out.
Yadegary arrived in New Zealand from Iran in October 1993 to claim refugee status on political grounds. This claim was unsuccessful and an appeal was rejected in 1997. In the same year, Yadegary converted to Christianity and reapplied for refugee status, this time on religious grounds. By renouncing his Muslim faith, Yadegary had transgressed the sharia, the traditional Islamic law that guides Iranian jurisprudence. The conversion from Islam to another religion, according to the sharia, is an offence punishable by death.
The legal bodies that determine refugee status in New Zealand – the Refugee Status Branch and the Refugee Status Appeals Authority – ruled that Yadegary’s commitment to the Christian faith was genuine. They also ruled that the conversion from Islam to Christianity was indeed a capital offence in Iran. Yet, New Zealand has adopted the conclusions of a 1995 investigation by the Swedish Aliens Appeal Board in which it is claimed that the law in question is never practically implemented.
Iranian Christians, it argues, live and practise their religion with no significant interference by the authorities. The only individuals under any threat are those involved in evangelizing or proselytizing; and, even then, the danger comes from vigilante acts carried out by fundamentalists and radicals, not state persecution. Consequently, it was deemed that Yadegary is under no serious risk if he is returned home and, therefore, he is ineligible for refugee status.
Even if one assumes the situation has not changed in the eleven years since the Swedish Aliens Appeal Board’s investigation (and some organizations, such as the Barnabas Fund and the United States State Department, do claim that state persecution of Christians occurs in Iran), this is a tenuous conclusion.
The possibility of being executed for one’s religious beliefs – however remote – is a powerful constraint on the expression of one’s religious freedom, a restriction that no liberal community would ever consider acceptable. Furthermore, the law’s very existence, even if not adopted by the state as active policy, gives a certain measure of legitimacy to acts of persecution carried out in an unofficial capacity.
Indeed, if it were in the Iranian state’s interests to discourage the spread of Christianity amongst its population (which it arguably is), it might simply turn a blind eye to those who take the law into their own hands and thereby surreptitiously pursue a policy that, if actively enforced, would receive international condemnation.
In this atmosphere of latent hostility, even the threat of denunciation becomes an effective tool of exploitation or revenge for a spiteful official, an envious neighbour, or a grudge-bearing in-law. The fear of punishment, however unlikely, would never be far from any covert Christian’s mind. And, as a Christian living in Iran, one would be perpetually anxious that the government’s stance was about to shift towards further intolerance.
An influx of conservatives, or the ascendancy of one politically powerful hard-liner, could quickly result in the law being put into action. The 1951 United Nations Convention Relating to the Status of Refugees states that a refugee is someone outside their home territory due to a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion...’ Drafted in the wake of the Holocaust, its writers keenly aware of the international community’s failure to assist Jewish refugees, the 1951 United Nations Refugee Convention recognizes the right of a refugee to flee under the threat of persecution: a ‘well-founded fear’.
It acknowledges that people must be able to escape a tyranny before the hammer comes down – the possibility of asylum is of little use to the dead. The existence of a law that prescribes the death penalty for a person’s religious beliefs, it can be argued, is enough to justify a ‘well-founded fear’ of being persecuted.
However, New Zealand’s legal bodies have chosen not to interpret the situation in this way. They have rejected his claim of refugee status which means that Yadegary, lacking any other sort of permit, is in New Zealand illegally. So, the government wants him expelled. It wants him expelled to demonstrate its bureaucratic efficacy and its will to regulate immigration, to prove to a suspicious electorate that it is not a soft touch, and to discourage other would-be asylum seekers from trying their luck.
Reducing The Government's Culpability In Yadegary's Fate
The sunless Auckland Central Remand Prison – a place where Mr Yadegary has chosen to spend the last 23 months rather than sign papers which would return him to Mahmoud Ahmadinejad's Iran
Unfortunately for the government, no other country in the world wants yet another stateless person on their territory so Yadegary cannot be simply tossed onto the next departing plane. Instead, the New Zealand government has arranged to return him to Iran. All Yadegary needs to do is sign an application for an Iranian passport and he can be deported.
Apart from facilitating his deportation, Yadegary’s signature is important for another reason. By signing the agreement, by showing he is – to an extent – a master of his own destiny, Yadegary will reduce the government’s culpability if he is persecuted on his return to Iran. While denying Yadegary’s claim of persecution, the government will want to free itself from any responsibility in case it is wrong. This is important because no Western government wants to breach the principle of non-refoulement. This rule, embodied in Article 33 of the 1951 United Nations Refugee Convention, prohibits any state from returning a refugee to a territory where they might be in danger of being persecuted.
While Western governments do sometimes try to stretch its definition (Australia’s very prompt return of Iraqi refugees following the 2003 invasion of Iraq comes to my mind), the norm of non-refoulement is generally adhered to and it forms the basis of the international asylum regime. Indeed, the growth of border control in the West is, in part, a recognition that it is far easier to stop asylum seekers from entering a country than it is to expel them without risking refoulement.
Understandably, Yadegary has refrained from signing the application, making it difficult for the government to deport him. While the government waits for him to offer his consent, it has detained him in Auckland Central Remand Prison. As with all other illegal aliens, the law allows detention for those awaiting deportation, ostensibly to ensure they do not abscond. At the time of writing, Yadegary has been detained for over 23 months and will not be released unless it is onto a one-way ride to Iran.
Is Ongoing Detention Unnecessarily Harsh?
Given his good record in New Zealand, this seems unnecessarily harsh. Certainly, there have been no charges of him being a threat to national security or to the safety of the community. And, until his situation is properly established, there are other alternatives available. He could, for instance, be held in non-penal detention at Mangere Refugee Resettlement Centre; or bound by residential requirements and made to report regularly to police or immigration officers.
Muslim Scholar Ahmed Zaoui who was adjudged a genuine refugee by one government body and a national security risk by another spent nearly two years in jail. While Yadegary and Zaoui's circumstances are different – bith their supporters would argue penal detention was/is being used as a weapon to break their resolve to stay in New Zealand.
From an administrative perspective, his incarceration in a high-security prison goes well beyond what is necessary. Instead, the government’s response recalls the prolonged detention of Ahmed Zaoui. While their cases are different in significant ways, in both situations it appears that the New Zealand government is attempting to use penal detention as a means of forcing favourable results out of intractable situations.
While the government and its officials can afford to sit the legal stalemate out, the refugee claimant must endure this state of limbo in prison. Eventually, one might presume, the detainee’s resolve will fold and he will take the fire over the frying pan, scuttling back from whence he came. The government will thus be saved from having to make any embarrassing concessions, admissions, or apologies. This strategy is difficult to justify by any assessment of the situation. If Yadegary’s fears as a refugee claimant are genuine, he will not capitulate easily.
After all, it is not unreasonable for Yadegary to decide that life in a New Zealand prison is preferable to no life at all, or a life lived in the fear of it being taken away. In that case, he will be serving prison time for no crime committed; and, if he gives in and returns to Iran, not only is he putting his life at risk, he is essentially conceding that the government was right all along.
If Yadegary’s fears are not genuine, if he has innocently overestimated the risk in Iran, his incarceration is hardly any less cruel. There is, of course, the possibility that Yadegary is a con. One cannot help but notice the quick succession of three significant events: the failure of his appeal for his initial refugee status claim on political grounds, his conversion to Christianity, and the application of a new refugee status claim on religious grounds. By all accounts, including the Refugee Status Appeals Authority’s, it appears that his religious conversion was authentic. But anyone with a familiarity of immigration issues knows that the asylum system is rife with bullshit artists, as well as real refugees.
It is also full of optimistic dupes who are merely telling authorities the lies they were given by the traffickers they paid to smuggle them into a better life. To distinguish one type of asylum seeker from the other is an extremely difficult task. So it is worth considering whether a policy would be any more justified if that asylum seeker is not who he says he is. It should always be remembered that all of these people – the bullshit artists included – may be escaping from circumstances that would appal the liberal sensibility: life-threatening poverty, corrupt and murderous regimes, and oppressive fundamentalist societies. People born into such circumstances will be desperate enough to try anything to escape. And who could blame them?
New Zealand’s early settlers, leaving a rapidly industrializing Europe, were driven by similar motives, even if from circumstances less dire. Asylum seekers are a modern-day equivalent; they are keen to live in the clean, green, culturally tolerant, espresso-savvy nation that we so eagerly promote ourselves as.
If asylum seekers can gain asylum by exploiting the flaws that exist in a nation’s immigration system, then understandably they will. While we should not shy from attending to those flaws and making the immigration system fairer and more effective, one has to ask whether it is reasonable to punish those who, out of real fear or opportunism, have taken advantage of the legal options available to them.
As a result of Yadegary’s failed attempts to attain refugee status, he has managed to remain in the country for thirteen years. His case demonstrates how thoroughly unprepared our immigration system was for the asylum seekers – like him – who arrived in the early 1990s, ending New Zealand’s traditional isolation from irregular refugee flows. It does not demonstrate a degree of malice that warrants two years of imprisonment with no set date of release.
If Yadegary’s claims are genuine, our government’s actions can only be regarded as cruel. Considering the low number of asylum seekers that arrive at our borders compared to other nations, a clumsy, excessively punitive treatment of asylum seekers looks both callow and churlish. It is in the public’s interest for the Minister of Immigration to use his ministerial discretion and avoid demeaning this country’s international reputation. It is also time for the government to consider including a humanitarian category to its immigration intake. By doing this, the government will not need to rely on ministerial discretion to accommodate those asylum seekers who fail to attain refugee status yet are in genuine danger.
And this is not an insignificant group. According to UNHCR statistics for 2004, in addition to the 127,000 asylum seekers who were granted refugee status in the developed world, another 51,100 asylum seekers who did not meet the refugee definition were granted asylum for humanitarian reasons. This includes people who do not meet a strict interpretation of the refugee definition, such as people escaping persecution on the grounds of their gender or sexuality, or people displaced by natural disasters or war-zones. These individuals might not legally be refugees, but they do meet commonly-held conceptions of refugee status.
Because governments are afraid of breaking the rule of non-refoulement, some countries have created a humanitarian category to process these displaced persons.
What Would It Cost NZ If Yadegary Stayed?
Finally, if the government is suspicious of Yadegary’s authenticity, if it suspects him of opportunism, it seems no great sacrifice to let Yadegary stay. He has already proven himself as harmless and, as the National Party is keen to emphasise, economically productive. While it might be unfair for an asylum seeker to take precedence over one of the many millions of refugees in more urgent circumstances, it is also unfair for someone to be forcibly uprooted from their life of thirteen years. After all, it is the injustice of being displaced from one’s home, from one’s community, that informs our sympathy for refugees in the first place.
David Hall is presently immersed in post-graduate research at Victoria University of Wellington with a focus on refugee and asylum policy.