Tony Tran: The culture of detention

Vietnamese born Binh (Tony) Tran is the latest victim of incompetence and arrogance in Australia’s troubled Immigration Department. Tran, now 35, was wrongfully detained and separated from his son for five and a half years between 1999 and 2005. He is now seeking compensation in the Victorian Supreme Court and his lawyers are saying the claim could reach into the millions of dollars. David Manne, from the Refugee & Immigration Legal Centre, said Tran had not yet received an apology and he had shown "extraordinary strength and dignity" since his release.

Tony Tran grew up in the US and entered Australia in 1992. He allowed his US re-entry permit to expire in 1994. In the meantime Tran married a Vietnamese Australian and applied for permanent residency. Because of this Tran believed he did not need to re-enter the US. Australia granted Tran a temporary spouse visa, and then a bridging visa. But while the Immigration Department was deciding whether he was eligible for a permanent spousal visa, he divorced, and his former wife withdrew her support for his permanent visa application. His application for a permanent spouse visa was rejected in 1996. He appealed but lost. However because of an “administrative error” Tran was never informed. The letter from Immigration never reached Tran – it was returned unopened to the Department.

ABC’s Lateline on 12 November took up the story in 1999. By then, Tran had re-married this time to a South Korean woman and they had an Australian-born son. The family lived in Brisbane where they owned a house. Tran had contacted Immigration to inquire about a spouse visa for his new wife. However instead of processing his wife’s application, they took an interest in Tran himself. While Tran believed he had a valid visa, Immigration told him he was an illegal immigrant. He was promptly handcuffed and taken into detention. Tran never saw his wife again. “I didn't expect to get locked up like that, so I never get to say goodbye or never get to kiss my son,” he said.

Meanwhile his wife and son were also threatened with detention and the department organised for them both to go to South Korea without his knowledge. They even provided the son an assumed South Korean name to facilitate entry to that country. After two years Tran’s wife returned to Queensland where she abandoned the son, Hai. Local child welfare authorities wrote to the department arguing the father should look after the son in the community. Immigration refused and Hai was assigned to foster care. Tony and Hai’s only contact was a weekly telephone call. While in prison, Tran was stabbed and bashed by an unstable inmate.

Finally in 2005, amid the scandals about the illegal detention of Cornelia Rau and deportation of Australian citizen Vivian Alvarez Solon, Tran was released without explanation and without apology. All he got was a letter saying his visa was valid since 1993. He was quickly reunited with Hai. But both and father and son remain without permanent residency and Minister Kevin Andrews has refused to make a decision on the matter prior to the election. Migration agent Libby Hogarth says the case has been before the minister for almost two years.

While he was still in detention, the Department told Hogarth Tran wasn't being very cooperative and hadn't taken much interest in his child's welfare. When she finally spoke to him, she was stunned to find out this was far from the truth. “It was very, very obvious to me that the major concern in his life was his young son who he hadn't seen for a number of years,” she said. Hogarth said immigration officials refused to pass on letters and photographs from Tran to his son, conduct she labelled "heartless and vicious".

In June, the Commonwealth Ombudsman John McMillan released a series of findings on the wrongful detention of 247 Australian citizens, all permanent residents and lawful visa holders between 1993 and 2007. He found that all Tran’s detention time was unlawful. Because a person must be properly notified before any action can be taken against them, it was unlawful for Immigration to act against him. McMillan recommended the Government “investigate a remedy”. The government refused and Tran is now seeking his own remedy in the Victorian Supreme Court.

On the night after Lateline revealed Tran’s story, the same program interviewed Labor spokesman for Immigration Tony Burke. Burke said Tran was one of “more than 200 cases” of unlawfully detained people. He blamed a “culture of assumption, a culture of denial - finally - a culture of cover-up” for the problems. But Burke was unable to get the details of the Tran case. Extraordinarily, with the government in caretaker mode, Burke did not get the briefings directly from departmental officials that would ordinarily be made available to a shadow minister. Immigration Minister Kevin Andrews has refused to speak to the media since the story broke. Tran now lives with his son in Melbourne, awaiting a final verdict on their fate. “For me my main focus is, like, my son, to hope that he can grow up and lead a normal life,” he said. “For me, I'm trying as well. It's not easy but I'm trying.”