She might just as well have claimed she had come from Mars. Not surprisingly, Indorato formed the
impression that she was not at all well. On April 4 Anna was given one last chance by DIMIA at Cairns
to provide reliable information. When that failed she was flown to Brisbane and, because there is no
immigration detention centre in Queensland, conveyed to the women’s prison at Wacol.
I have seen vivid eyewitness testimony of Anna’s induction. She was brought into the prison by two
officers of a wonderfully named company called Global Expertise in Outsourcing. One was male and
one was female. Anna was staring into space, hugging herself. When told she would have to wear
prison clothes she protested. Part of the conversation of the male escort to the prison clerk was
overheard. “She’s not all there that one. She has some mental issues we think. Good luck.” What was
self-evident to two escort guards would remain obscure to scores of public servants, doctors,
psychologists and psychiatrists over the following ten months.
We arrive now at the overwhelming question. How did a mentally ill Australian resident, who had
provided police and immigration officials with a series of false names and fanciful tales about the
circumstances surrounding her arrival in Australia as a German tourist, end up, within a week of her
apprehension, in detention in a Brisbane jail? The pre-liminary legal answer, supported by the
Commonwealth government, goes something like this. Section 189 of the Migration Act obliges the
officers it empowers to detain anyone about whom they entertain what is called a “reasonable
suspicion” that she is an “unlawful non-citizen”. How, then, explain that this woman was destined to
spend six months in this jail and a further four months in a special-purpose detention centre? The
government’s preliminary answer continues like this. Section 196 says that unlawful non-citizens can
only be released from detention after being granted a valid visa or in the course of removal or
deportation from Australia. During the course of the ten months no grounds arose to grant a visa; no
circumstances that permitted deportation. How long, then, could this woman be detained?
Here the preliminary answer is clear. On the basis of a High Court decision of 2003, in the al-Kateb
case, even if Cornelia Rau was willing to leave Australia – as indeed she most certainly was – in the
absence of a country willing to offer her a visa she could be lawfully detained for the remainder of her
life. Or, as the government solicitor put it in the relevant case, until Hell itself froze over. Although the
government’s thinking was full of legal holes, it was the combination of sections 189 and 196 of the
Migration Act and the government’s victory in the al-Kateb case that provided the foundation for
Cornelia’s ten-month detention.
The strange truth is that if Cornelia Rau had been picked up in north Queensland on suspicion of a
serious criminal offence, rather than as a suspected unlawful non-citizen, she would have been
afforded far greater protection. As a suspected serious criminal, facing long-term imprisonment, she
would have become entangled at once in a thicket of laws and legal procedures, some going back
several hundred years – habeas corpus; presumption of innocence; intricate rules of evidence; the
right to an appearance in a court; the right to legal representation; the right to silence; the right to a trial
before a jury of peers; the right to plead innocence on grounds of mental health; the right to appeal,
and so on. As a suspected non-citizen, Cornelia was, by contrast, almost a non-juridical being, with
virtually no legal protections or legal rights. In order for her to be incarcerated, in theory for the
remainder of her life, all the law required was that a junior official with authority under the Migration Act
form a reasonable suspicion that Cornelia had no right to be on Australian soil. Even though the officer
might be ignorant of the law or generally untrained, there was no system or process for the decision to
be overseen by a court or ever to be reviewed. At one point the astonished official investigator into this
case, Mick Palmer, broke out of his customary sobriety and spoke momentarily from the heart.
“Cornelia Rau might have been considered a non-citizen but she was not a non-person.”
The strangeness of the circumstance surrounding Cornelia’s detention in April 2004 is not exhausted
yet. There is no department of the Australian government where suspicion of the stories people tell
about themselves is more pervasive than it is in DIMIA. Because DIMIA is predisposed to suspect all
those who want to stay in Australia of telling lies, the officers of its onshore protection branch routinely
subject the stories of asylum seekers to the most rigorous of tests. Even the smallest inconsistency
can prove lethal to a claim. And yet when it came to the case of Cornelia, her inconsistencies and her
fantasy tales do not appear to have caused the DIMIA officials who dealt with her in Cairns or Brisbane
the smallest doubt that she was telling the truth about the unlawfulness of her presence in Australia.
Why? The answer to this puzzle is simple. Distrust of asylum seekers’ stories is almost universal in
DIMIA because the asylum seekers hope to stay. Trust of Anna proved easy because she hoped to
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