Key question left unanswered as ABF blames forgotten email for Hakeem Al-Araibi’s arrest

By Stephen Easton

Tuesday February 19, 2019

(L-R) Australian Foreign Minister Marise Payne, footballer and refugee Hakeem Al-Araibi, Australian Prime Minister Scott Morrison and Former Socceroo Craig Foster pose for photographs during a meeting at Parliament House in Canberra, Thursday, February 14, 2019. (AAP Image/Lukas Coch) NO ARCHIVING

It’s now clear that an Australian Border Force officer neglected to send an email that could have prevented Hakeem Al-Araibi being arrested and locked up in Thailand, but one key question remains unanswered for now: did he ask public servants for advice, and if so, what did they say?

Just after 7.30pm last night, ABF commissioner Michael Outram admitted one of his officers made a crucial mistake – they forgot to send an email – in his opening statement to Senate estimates.

“This is where the process broke down,” he told Senator Nick McKim.

Outram said this was “an error and contrary to the agreed process” by which the Australian Federal Police would have learned Al-Araibi had a protection visa, allowing them to recognise that an Interpol red notice issued by Bahrain was illegitimate.

As it turned out, the AFP found out he was a refugee one day after his arrest. The day after that, it obtained permission from Home Affairs to share this information with Interpol’s Office of Legal Affairs, and the red notice was removed within 24 hours, said AFP commissioner Andrew Colvin.

The Greens senator turned to deputy commissioner Ramzi Jabbour, who had appeared earlier in the day and stuck around to join the ABF in the spotlight. “Is it fair to say that if the AFP had known of Mr Al-Araibi’s visa status, we might have had a different outcome here, where in fact he wasn’t shopped into the Thai government, as occurred?” he asked.

Jabbour conceded that is “certainly possible” because the AFP would have contacted the Interpol legal office sooner, and it would have “in all probability” had the spurious red notice revoked, as it did in under 24 hours once informed of the matter.

By then, of course, it was a couple of days too late to prevent Al-Araibi, a man Australia had agreed to protect, from being collared, detained and put on trial on the request of the country from which he had claimed asylum.

Outram told McKim he accepted that the ABF mistake directly led to the AFP informing Thai authorities about the red notice on Al-Araibi, and that this would not have happened otherwise. The Greens senator also accepted that he could have been arrested at Bahrain’s request anyway.

The AFP’s evidence aimed to refute the idea that it was to blame for the quite unfortunate outcome because it essentially tipped off the Thai police. In the circumstances, there was little else the police could – or should – have done that would have led to a better result.

The after-dinner mea culpa from Border Force came hours after the AFP explained its role in the unfortunate debacle in the morning, flanked by Department of Home Affairs secretary Michael Pezzullo, who hinted several times that Outram would have something important to say later and deferred a lot of questions until he appeared.

Did he ask for travel advice? The secretary does not know

Pezzullo was surprisingly unprepared to be questioned about one key element of the story that made it particularly gripping news as it unfolded: the idea that Al-Araibi had asked someone in the government if he would be safe to travel to Thailand, and received a positive-sounding response.

The Guardian reported in late January that he called immigration officials to ask and was told he could go anywhere except Bahrain.

If so, that sounds very much like a proforma response, stating the basic conditions of his protection visa, as DHA has done for several media outlets. This is the response the department sent our sister site Crikey, after it asked five questions of Prime Minister Scott Morrison, based on his commentary on the matter:

“Permanent protection visa holders are required to seek approval in writing from the Department of Home Affairs to enter the country from which they have been found to engage Australia’s protection obligations. They do not need approval to travel to any other country.”

If The Guardian’s report is accurate, Al-Araibi called and asked a very important question – at some point – but the department was unable to give him a personalised response. Instead it reportedly quoted the conditions of his visa, which suggests an impersonal response based on the assumption that he was at no greater risk in Thailand than anybody else.

Obviously that was not the case, and the trick he fell victim to is not a first. It was well known that authoritarian regimes like the Bahraini monarchy sometimes abuse the Interpol red-notice system. As the case highlights, there is a gap in the federal bureaucracy’s ability to warn people if they are at risk of this. A British barrister told Crikey the United Kingdom’s government were already informally warning Bahraini refugees to avoid Thailand.

Everyone hates getting an impersonal, copied and pasted answer from government, but the advice Al-Araibi reportedly sought was much more important than most day-to-day enquiries. Perhaps some sort of specialised, personalised advice service for at-risk travellers could have helped in this case.

It’s not clear if it would have helped. If Al-Araibi tried to check with someone, it is logical he would have done so around the same time as applying for a tourist visa to visit Thailand, at which point Bahrain had not yet issued the red notice.

The AFP confirmed that Bahrain issued its red notice on the exact day that Thailand granted Al-Araibi the tourist visa for his planned holiday – almost 12 months after he was granted the protection visa by Australia. Deputy commissioner Jabbour agreed with McKim this was an extraordinary coincidence.

Pezzullo said he did not know if the soccer player or anyone acting on his behalf had contacted the department to ask for help.

He took the question on notice when it was put to him directly during the ABF’s evening hearing: was there contact and if so, what was the question and what was the answer?

Earlier, he cast doubt on the idea, and said he wasn’t aware it had been reported. He told the committee at one point that the department monitors the news for “open-source intelligence” so it’s surprising they missed it. He said to McKim during the AFP session:

“That would not be advice given to him under any sort of authority from us, but I will run it down, because I think your question is: would a Border Force officer or Home Affairs officer have said, ‘You’re right to travel’?”

“I have not read any reporting to suggest that. I think the premise of your question, if I am getting my recollection accurate here, is that he sought his own assurances from the Thai authorities, but we will anticipate that as a question.”

The Guardian reported that he asked “immigration officials” and “had been given multiple assurances he was protected and could go ‘anywhere but Bahrain’” – which sounds like advice only an Australian agency could or would provide.

Outram confirmed this is not a service the Border Force provides. “So I’ll check, but what I’m saying to you is it’s highly unlikely the Border Force would provide any advice that anyone is good or bad to travel,” the ABF chief said.

ABF sorry for error, not for the arrest

When asked if he would apologise, Outram said he was only sorry for the mistake itself:

“I apologise for the error that occurred within the ABF, but I can’t say, nor can I accept, that that error necessarily led to his detention in Thailand — that it wouldn’t have occurred anyway.”

Outram argued there could have been other communications between Bahraini and Thai officials that might have seen Al-Araibi arrested anyway, even without an Interpol red notice in place. He said it would be “speculative” to accept the full blame, but insisted the agency took the error very seriously and was not simply blaming it on one officer who forgot to send an email.

“We want to provide our officers with the best systems that we can to enable them to do their job in a very fast-moving and high-volume environment,” said the ABF commissioner, whose opening statement listed two administrative changes to the relevant process that had resulted from reviewing what went wrong in this case.

“You will be aware that we are dealing with some legacy systems here that are past their use-by date, and we are using manual processes for increasingly large numbers of people, with human beings, at the end of the day, being expected to undertake some of those processes,” he told McKim.

“If this system were fully automated, of course that would be nirvana for all of us. We obviously have to include the human factor in this process.”

The head of the AFP said the National Central Bureau of Interpol, which is staffed by AFP secondees, had followed the international body’s policies and procedures at all times and throughout the hearing, explained how the police agency was not in a position to do anything different in the circumstances.

The internal reviews revealed one gap in the AFP’s process – an officer using their personal email to contact the Home Affairs character and cancellation branch law enforcement liaison team on a group email address. This meant nobody else saw the reply immediately, although it was already too late for Al-Araibi at that point.

The Senate committee heard a lot of evidence about outdated and disconnected systems, manual processes and human error that led to this unfortunate failure of process, as well as the heavy caseload of the ABF and the fact that a significant number of Interpol red notices are issued all the time.

Automation was noted as one possible solution, and Pezzullo pointed out very early on that the AFP, the ABF and the department are separated by legislation that defines the limits of their authority and responsibility. He used his estimates appearance as an opportunity to call for mass data sharing within his portfolio.

“I would much prefer to have statutes which are not so prescriptive and prohibitive as to the mass sharing of data and information,” he told McKim. “If your party’s now coming around to the mass exchange of information through automated means, that would have certainly mitigated this circumstance.”

Top photo: footballer and refugee Hakeem Al-Araibi meets with Foreign Minister Marise Payne, Prime Minister Scott Morrison and former Socceroo Craig Foster following his return to Australia. AAP Image/Lukas Coch

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