The man who would be free

Abdikarin Ali Haji says sending him back to Somalia is tantamount to a death sentence. Picture / Kenny Rodger

In the dock, Abdikarin Ali Haji's face is ashen. Gone is the usual big smile. Today the Somalian looks scared. An Auckland District Court judge orders him to stay in prison for another week, then the asylum-seeker is gone, back to his cell.

It is likely to be a weekly fixture until his future in New Zealand is decided.

Some call this African man a hero. They say it takes extreme courage, a tenacity of the desperate, to get out of lawless Somalia, a nation torn apart by famine and brutal warlords, a nation so violent that a superpower pulled out.

It takes guts, say those who have done it, to make it across the world and turn up at the mercy of a country you do not know, armed with forged papers, with little money, no friends, no guarantees, in search of a better life - or just to stay alive.

But there are those who say Haji, from Mogadishu, the capital of Somalia, has blown his chances in New Zealand. He has accrued some minor convictions in the seven years he has been here and his credibility is at issue. Send him home, they say.

Haji begs not to be sent home, saying home is death.

His case is complex. Most are, but perhaps Haji's more so.

He represents a dilemma: what to do with someone not accepted in this country as a refugee yet whose own country is so unstable that the United Nations Commissioner for Refugees says people should not be sent back there. Under an international refugee convention, New Zealand is obliged to consider all claims for refugee status made by asylum-seekers.

Asylum-seekers are different to the 750 UN-approved refugees we take each year under a quota system.

They are people who chance their luck, fleeing their own countries and making it to a foreign land, often on false passports, then applying for refugee status.

There has been a big fall in the numbers who reach New Zealand shores. This is a world trend, partly because of post-September 11 security measures.

In New Zealand's case, a process that screens people before they get on a plane to come here has stopped about 800 people who might otherwise have made it.

A few years ago about 1600 asylum-seekers would arrive each year. In 2004/2005, 500 arrived and of those only 81 were approved as refugees.

New Zealand has an estimated 19,000 overstayers, mostly people who have stayed after their permits have expired.

These cases are followed up, but failed refugee claimants are pursued more vigorously, because of issues concerning identity, credibility and possible risk. In Haji's case, all his applications and appeals for refugee status have been declined, with dramatic consequences.

Immigration has tried to deport him to Somalia twice. In November 2003, Haji threw himself from a moving car while being taken to Auckland International Airport.

Hours before he was to leave, a High Court injunction stopped his removal and directed the Immigration Service to consider a UNHCR report that urged countries not to send people to Somalia. After spending time in jail, Haji was granted a one-year work permit. When he tried to renew the permit in February the Immigration Service refused, saying he had failed to declare his convictions.

Again they moved to deport him, even though the situation in Somalia had not improved.

A few weeks ago, as Haji was being transferred from prison in Christchurch to Auckland, he climbed out a toilet window at Wellington airport and outran prison guards.

He made it to Auckland but after a week on the run he gave himself up and is back in jail.

Reunity Trust, a refugee support group, has called in the Ombudsmen's Office and his fate is again on hold again while the Immigration Service's handling of the case is investigated.

Haji is not perfect and has not exactly helped his case. Over the years he has taken to the New Zealand lifestyle with zest, perhaps too much zest. He likes a drink, sometimes he drinks too much.

He has done some stupid things. He has a couple of careless driving convictions. And there was an incident concerning an ATM machine where he took too much money and was ordered to repay $700.

He was arrested for carrying a knife in a public place, but said it was a tool of his trade - he is a halal butcher and has worked at freezing works in the South Island.

There have been two complaints involving women, but police dropped the inquiries and he was not charged. It adds up to a bad look. Is he a bad person?

No way, say people who know him.

Supporters agree that he has been stupid but point out that life without status, life without papers and stability, does strange things to people.

It challenges their sense of worth and causes deep depression. And if they are from Somalia they live in constant fear of being returned to a war zone.

They also point out Haji is just like any other young man - a mix of alcohol and freedom, fear and depression, can make people do things they otherwise would not.

Before Haji was transferred to the remand prison at Mt Eden he was held in cells at Auckland Central Police Station.

Weekend Review spoke to him there, communicating by telephone as he sat behind the glass partition of a visitor booth.

He swung wildly between big smiles and despair. He was sad "every minute", he said.

"This has been happening for years, in, out, in, out. They track me down, they lock me up."

He says he is from a minority tribe, the Galgala, which is targeted by other clans.

"They burn our houses, they kill our people. I don't want to live that shocking life again."

When he climbed through the window and ran, he felt he had no choice.

"If my country was in peace I'd be in the wrong. I don't want to get killed. I want to live."

Haji has at times felt suicidal. A letter he wrote to the Herald from his cell thanks everyone who has helped him in New Zealand and says how he has worked hard and never relied on the taxpayer.

That's true. But Haji's credibility has been an issue since 1999, when he was first declined refugee status.

Credibility is all important when it comes to gaining refugee status. Haji told different versions of his life in Somalia and why he left.

A Refugee Status Appeals Authority decision turning him down a second time says his first refugee claim failed because the risk of harm Haji faced was simply the "random, indiscriminate violence which accompanies war and conflict".

But he had not been persecuted or could point to any circumstances on which a well-founded fear of persecution in the future could be based. And he had not disclosed, the first time, that he was from a low-caste minority clan.

Somalia contains hundreds of clans. The lower-ranked are known as Midgans and are targeted by stronger clans.

In his appeal Haji said he was a Midgan but the Refugee Status Appeals Authority did not believe him.

He said that initially he had not revealed that because Midgan are hated and he feared problems with other Somalis in New Zealand.

The appeals authority did not buy that, or other aspects of his story and found he was not a credible witness and "no part of his case is accepted".

Haji had "conveniently invented a set of facts to bolster an untrue claim to refugee status", the authority said.

With the dismissal of Haji's appeal came the deportation attempts.

But it is not as simple as putting him on an aeroplane and returning him to Mogadishu Airport. Airlines do not fly to Mogadishu.

A civil war has been raging since 1991 and the UNHCR says Somalia remains insecure and highly volatile.

It says that in Somalia "the right to life continues to be violated on an extensive scale" and the people need international protection.

Even so, the Immigration Service has gone to some trouble to attempt to deport Haji. He has no Somali passport and cannot get one because there is no functioning government. Attempts have been made to establish a transitional government, but Somalia is too dangerous and that government is based in Kenya.

The first time the Immigration Service tried to deport Haji they had to negotiate with a private company in South Africa. Haji's lawyer argued that such a procedure offered no guarantee where Haji would end up.

The Immigration Service says it can't talk about Haji's case and certainly not about how it would get him back to Somalia.

However, Department of Labour deputy-secretary Mary-Anne Thompson talked about issues with asylum-seekers in general terms. She said that on a personal level people's plights are a dilemma of conscience. But cases are complex, there are many issues to weigh up "and you do the best that one can and you do that with a great sense of fairness both for New Zealand and for the international obligations as well".

Sometimes the public does not have access to all the information and decisions are made on balance.

"We have very capable people at the refugee branch, really capable people who can research and can go into a level of depth of thinking and questioning to ascertain whether an asylum-seeker is genuine," Thompson says.

But even if someone has fled a violent homeland, that is not necessarily enough to qualify them for protection under the terms of the refugee convention.

Thompson says that 85 per cent of people who come past the border are not accepted because they do not really require protection. "They may have left for economic reasons, they might not like what's going on in their country, but nonetheless they don't need protection in the sense of protection, their lives are not necessarily in danger."

It is not enough to simply want a better life.

In the 2004-2005 year, 11 Somalis made it here. Five were approved for refugee status.

Seven were turned down but are appealing. If they fail they, too, face deportation.

Thompson says each is considered case by case. But some being accepted and some not, demonstrates that not everyone in a country is necessarily at risk. "And that's a very important point that people will sometimes forget - you can have different people come from the same country but some may need to be protected and others may not."

UNHCR advice about countries is taken seriously, Thompson says, and the Immigration Service has a policy of not forcibly removing people to countries where their lives may be endangered.

But sometimes the department may decide a removal is warranted, for example if a person is deemed to be a threat to public safety or security.

Thompson says Canada and the United States also heed UNHCR advice but in some cases have sent people back.

Even if a person in New Zealand fails all applications, the Minister of Immigration can step in.

This has not happened with Haji - quite the opposite. An affidavit to Timaru District Court this month, written by an immigration officer, said the minister had directed the service not to grant Haji any more temporary permits and that he be moved from New Zealand as "expeditiously as possible".

Heval Hylan, secretary of the Refugee Council and also a lawyer working for free on Haji's case cannot figure out why.

Hylan brings out a letter signed by former Associate Minister of Immigration Damien O'Connor. It is about another client, an Afghani man. In one sentence, O'Connor says the man cannot be deported until the UNHCR says the situation is safe.

Hylan questions why Somalia, and Haji's case in particular, should be different. He adds that there are refugees in the country who have committed much worse crimes than Haji but they are still here.

Hylan has asked the UNHCR's Canberra office for help and says even getting Haji back to his country would be dangerous. How would he get there from South Africa. "Get a ride on the horse or the donkey?"

Neville Kay, 57, a founder of the Reunity Trust refugee support group, talks fondly of Haji, even though he has tried not to get too attached.

His Grey Lynn home is no ordinary house. Asylum-seekers can knock on the door in the middle of the night and Kay will give them a bed.

He says that right from the start Haji stood out. He has charisma and gumption. As soon as he received his first temporary work permit he was knocking on doors looking for work.

He even got a stint on Xena: Warrior Princess, where he played African drums and danced.

Kay admits Haji has done some dumb things but says that doesn't warrant a death sentence.

"I'm one of those people who likes to see people get a fair go. We're one of the luckiest countries in the world. Somalia is the opposite."

From Dunedin, Haji's New Zealand girlfriend says what a nice guy he is. She is upset, crying.

He has always been good to her. As for those convictions, she agrees they do not help his case. "But he's been a good citizen as far as New Zealand's concerned, apart from those little things. He's worked ever since he's lived here and paid taxes and things like that.

"Don't send him back. I don't want him killed. He's too nice a guy to go through that sort of trouble."

In Invercargill, Alan and Sally Dunlop say Haji has become part of the family.

He went out with their daughter for a while and called them mum and dad.

So, Haji might have been in a bit of trouble but it wasn't serious.

"Hell, he never had any freedom where he was and who doesn't get into a bit of trouble."

The question remains, why should New Zealand be the country to adopt Haji?

"Because Somalia is between the devil and the deep blue sea," says the Somalian woman sitting at a cafe in Auckland.

"Somalia is a country that is divided and subdivided by clans and armed groups. It is devastated by war and famine.

"We had a farm, we had a life, we had a beautiful life, and suddenly we had nothing. The warlords took over, they destroyed, they burned, they took, they raped, they murdered ... they killed all the people they could. In one day, 42 people of my family were killed."

She says Haji is a courageous survivor and deserves a chance.

"I'm for respecting the laws and regulations of New Zealand. I do.

"But I'm not ready to say somebody has to go to the death penalty because of offences, no. And expelling someone to Somalia is like sentencing them to death."

Such is the dilemma of the asylum-seeker.

The right to seek asylum

The United Nations Convention on refugees (1951) dates back to after World War II when the world was sympathetic to the plight of war victims, especially displaced Jewish people.

It was at this time that asylum-seekers came into their own. The convention says signatories, of which New Zealand is one, must abide by the principle of not sending people back to danger. But protection is not automatic and sometimes may only be temporary, until home countries are safer.

People not covered by the convention are people who have committed crimes against peace, a war crime, crimes against humanity or a serious non-political crime outside the country of refuge.

The convention defines a refugee as a person who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable, or owing to such fear, is unwilling to return to it".

How many we help

In the past five years, refugee claims by asylum-seekers in New Zealand have fallen markedly.

In 2000-2001, 2415 people applied and 312 were approved. By 2004/05 the number of applications had fallen to 500 and 81 were approved.

Applicants come from throughout the world and for 2004-2005 included 11 people from Somalia, 94 from Iran, 17 from Iraq, 25 from Chile, 42 from China and five from Vietnam.

Of the claims, 16 per cent were approved.

Overstayers (people in New Zealand unlawfully because they don't have valid permits) are estimated at between 17,604 and 20,930.

Countries with the highest numbers of overstayers are Samoa, Tonga, China and Britain.