An Age Of Uncertainty
By Hamish MacDonaldApril 16, 2012
How did an Indonesian who may have been just 13 years old when arrested, get sentenced to a maximum-security prison for adults in Western Australia?
But this is not a story about what Indonesia has done.
This is about what Australia has done.
The results of a three-month investigation by The Project will be broadcast tonight on the Channel Ten at 6pm. At play is a dangerous combination of high-stakes politics, international diplomacy, human rights standards and basic justice. Fresh evidence has been uncovered which shows that Australia's justice system may have jailed a minor in a men's maximum security prison.
There are also revelations in The Project's report from an insider working within Western Australia's prison system, who is speaking out for the first time. 'Michael' told us: "I cannot get my head around that this is what we are doing. It is repulsive, it is an obscenity."
In December 2009, a young Indonesian called Ali Jasmin left Flores, an Indonesian island east of Sumbawa and west of Lembata, to work as crew on a boat that was smuggling asylum-seekers to Australia. His family believes he was lured into this by a neighbour's uncle, who gave him few details about what would be involved.
The boat, carrying 55 Afghan asylum-seekers, struck trouble in Australian waters. According to court documents, "there was flood water up to a metre high, and there were obvious leaks in the hull. SIEV 86 was poor a platform to be at sea in the conditions experienced that day with the swell on the ocean." On December 18, 2009 the passengers and crew were picked up by the Australian navy and taken to Christmas Island. Ali Jasmin was among the four crew members picked up and eventually charged with people-smuggling offences. He was found with Rupiah 3,185,500 in his possession, a little more than 300 Australian dollars.
A West Australian District Court determined him to be an adult and found him guilty of people-smuggling, although his sentencing documents acknowledge that his only role on the vessel was to cook food for the passengers. District Court Justice Richard Keen stated: "It is accepted that you played a minor role and had no part to play in the organisation of the journey or the navigation of the vessel."
Regardless, he is now serving a stipulated five-year mandatory sentence in Albany's maximum-security adult prison alongside some of the state's most notorious murderers and paedophiles. The Project has documents which cast doubt over whether Ali Jasmin really is an adult, raising questions about whether he should be held in an adult prison.
The only way to get to the truth about Ali Jasmin's age was to travel to his home town, which lies on a remote island somewhere between Bali and East Timor. After flying into Maumere in Flores, it is about a four-hour drive to Larantuka from where the ferry takes us to Lewoleba. From there it is another long, bumpy drive to the village of Balauring.
This is certainly not the easiest place to get to. And perhaps that in part is why no-one has ever bothered to come looking for the truth.
Balauring is a stunning location. The tiny fishing village sits on the edge of the sea, looking across a bay to the towering Ile Ape Volcano. The still morning is punctuated with bursts of noise from children playing in the shallow waters.
Ali Jasmin's family lives in a simple cottage by the shoreline. His mother, Aniza, is initially surprised to meet us. We are the first people to arrive seeking information on Ali Jasmin since he left here two-and-a-half years ago. His mother is a nervous woman who clearly misses her son. She quickly produces an envelope, date stamped '21 November 2011', sent from Albany prison. It contains photographs of her boy.
There are two pictures of Ali Jasmin wearing sunglasses. He looks like most teenagers. No stubble, clean skinned, posing. There is another photograph of him in prison uniform, wearing a hat. Although this is a region where birth dates are not usually considered important, she is adamant he is still a child.
Aniza hears from her son frequently via phone and mail, but she confirms to us that in the two-and-a-half years since he disappeared, she had not received until recently a single phone call or communication from any authority, or lawyer, in either Australia or Indonesia. Not a single person had asked her the simple question: "How old is your son?" For the record, she thinks he is now 15 or 16.
Ali Jasmin's older sister is Nurzalyna Sigapung. She breaks down crying at the mere mention of Ali Jasmin's name.
"He is a good kid, a caring person," she says. "He is a kind person…kind and caring." His absence has had an obvious impact on the family. "In the past, he was the one who helped to support my children and give money to us daily, even though he is my younger brother," she says.
The family remains confused about exactly what happened to Ali Jasmin — how he came to be smuggling asylum-seekers to Australia. "He said he was sailing a ship with tourist passengers. I asked him, 'Who asked you to go?' He said it was the uncle of my neighbour in Maumere," says Nurzalyna.
Up the hill from the house is Al Hikam Sekolah, a private Muslim school where Ali Jasmin had studied. The boys in this class are 12 years old, about the same age Jasmin's mother says he was when he left here. The headmaster is Doctor Umar Abdullah, a stern man, initially suspicious of us, but he appears certain that the boy in his class was Ali Jasmin.
Eventually he takes us to the school's office where there is a cupboard full of registration books. The system is chaotic and there appears to be no order to their documentation, but after a short search we find the entry for Ali Jasmin, which lists his birth date as '12th October 1996'. If that is correct, Ali Jasmin would have been 13 when he was arrested in Australia.
In addition, the Kapala Desa, the village chief, provides us with a notarised statement confirming the authenticity of the school records.
These records are a significant discovery. They are consistent with what Ali Jasmin's family claims. But things get a lot more interesting when a relative arrives from the main town in the district, bearing a pink folder of documents.
Included in this folder is a family registration certificate, compiled by the Kepala Dinas Kependudukan, or Population and Civil Registration Agency. It lists the entire family, their full names, and their birthdates, including Ali Jasmin's. There is also a birth certificate, generated in 2010 — the year Ali Jasmin was facing court.
We are surprised to find a small receipt attached to the top of the birth certificate. It is a receipt from a 'Wartel' where Indonesians go to make long distance phone calls and send faxes. This receipt is dated '23 August 2010' and confirms that a fax was sent at 13.47 local time to a number in Western Australia. Further searches find that this number belongs to the Indonesian consulate in Perth.
By now we have four separate records of Ali Jasmin's birth date, though with discrepancies.
Two of the documents — the birth certificate and the family registration papers — have the boy born on '12th January'. The other two — the school entry records and the Kepala Desa's certification letter — say '12th October'. That's a difference of 10 months, or, if the dates are being written numerically, two digits — 12.01.96, or 12.10.96. A sympathetic reading of this might be that in a region with very low literacy and numeracy standards there may have been a simple error and that the '01' was confused with '10'. A less sympathetic view would still recognise that all of these records have one thing in common. Ali Jasmin was born in 1996.
On the documents The Project has sighted, at most the boy is 16 years old today. He would have been only 14 when an Australian court convicted him as an adult and locked him up in Western Australia's toughest prison.
But back to the 'Wartel' receipt. The Project's discovery that the birth certificate was faxed to Australia in August 2010 raises the alarming prospect that it was sent here before Ali Jasmin was subject to an age determination hearing by the court. However,there had been no public record in Australia so far of this document's existence.
David McKenzie was Ali Jasmin's defence lawyer. But on the day the Western Australian District Court heard arguments about his age, McKenzie was unavailable, so another barrister, Simon Watters, appeared on his behalf. After a series of delays over a period of months, when the trial of issues was heard on December 8, 2010, there was no qualified translator present. Tini Ben, a local Justice of the Peace was recruited to do the job.
"I'm sitting on the bench across the road," said Ben, adding: "I been doing also a few times (sic) at the Magistrate, little pieces." In the District Court, Justice Keen later remarked that an accredited translator "is perhaps the first port of call, but it is not the be all and end all." According to the court transcripts, Simon Watters, who on that day represented Ali Jasmin, raised no issue with this and the hearing proceeded.
David McKenzie this week confirmed to The Project that while he was aware the birth certificate had been obtained, it was never presented to the court. "For very particular reasons," he says. "It is very difficult to get reliable information."
McKenzie says the veracity of these documents is a problem: "The information about his birth date wasn't recorded at his birth, it's being obtained years later and so any information is probably going to be quite unreliable. So in the end, it wasn't possible to present that document and put it into evidence."
McKenzie says, "There are certain rules of evidence about matters and how documents are presented and somebody has to speak to the document and say how it was obtained, whether this is a reliable document and in this case there wasn't any way of getting this birth certificate into evidence. That's the problem."
It is true that the birth certificate in question was generated by Indonesian authorities in 2010, not at the time Ali Jasmin was born, and presumably at the request of Ali Jasmin's family when these issues arose. But there would have been no reason, prior to this for Ali Jasmin to need or want a document of this description. Few people in Flores would even have a birth certificate.
The Project contacted the Indonesian Consul, Syahri Sakidin, in Perth last week, and he confirmed to us that the consulate does indeed provide services to support the process of verifying documents. He said: "If that were requested we would certainly do it ." A former staff member at the consulate has confirmed an offer was made to provide a written statement to the court to this effect. Initial soundings were also taken with Jakarta about appearing physically in court to do this. Whether this would have met the then standards of admissability remains a question.
Given this, it was left to Ali Jasmin to speak to his own age. He told the court in December 2010 that he was 14 on the day of the hearing. Later that day he says he was born in 1990, then he clarified it to 1996. He told the court that the Australian Federal Police told him he was born in 1990.
Other than his verbal testimony about his birth year, Jasmin's defence lawyers presented no contrary evidence when the Crown put forward a wrist bone density x-ray. These are used to determine age when there is no record available. Most Indonesian boat crew don't have passports, so this was common practice in 2010. Simon Watters argues that on the balance of probability it cannot be disproved Ali Jasmin is not under the age of 18, but ultimately this is not accepted.
Photo by Hamish MacDonald
Photo by Hamish McDonald
Photo by Hamish MacDonald
Photo by Hamish MacDonald
Photo by Hamish MacDonald
But the process was later criticised and is now subject to a wide ranging inquiry by the Human Rights and Equal Opportunities Commission, which will hold another public hearing this week, to take testimony from senior representatives from government agencies. Case after case has been found to have made incorrect age determinations, and late last year the federal government changed the system in an effort to make it more accurate, supplementing wrist x-rays with dental scans and advanced interviewing.
But that was too late for Jasmin. During his trial, the radiologist Dr Vincent Low appeared for the Crown supporting the x-ray evidence. He claimed that there was no probability Ali Jasmin could be 14 years old at the time. He later clarified his statement, during questions from the Crown, saying that it was possible but the chances were about "one in 5,000".
In a letter obtained by The Project, written on behalf of the then foreign minister, Kevin Rudd, in November last year, Greg Ralph from the Department of Foreign Affairs and Trade states: "Where there is any uncertainty about age, people-smuggling crew are given the benefit of the doubt and returned home to Indonesia." Evidently, not in this case.
Together the documents uncovered by The Project cast some doubt over the determination of Ali Jasmin's age, but the testimony of 'Michael', an insider from Western Australia's prison system, suggests that authorities there became aware of the situation early on and chose to do nothing.
Michael has worked in close contact with Ali Jasmin. "I first came across Jasmin probably in April 2010," he says. "I thought he was very young indeed; he was pre-pubescent, skin fair, no hair, the mannerism very much of a frightened young child."
This whistleblower says he referred the matter "up" and that everyone in the prison system was made aware of the existence of multiple juveniles inside the maximum-security, adult prison at Albany. "After seeing it and speaking to every one else, everyone was of the same opinion. And people are of the same opinion to this day, two years later," said Michael.
Michael claims he has met most, if not all of the Indonesians at Albany jail on people-smuggling convictions. He says, "In some cases, there's a question; is this kid 16, 17, 18? But in Jasmin's case it was very clear that they [he] were much younger looking than the others."
Michael has spoken on the basis that his identity not be revealed. He says he has decided to speak out because, "I'm a normal father. Nothing more, nothing less." He is also shocked by what he has seen, and he now believes it is important to say something. "You come across something so extraordinary that someone says to you one day, 'Do you know there's a bunch of children being held in a maximum-security prison in Perth?' And you think no, not possible. And then you find out yeah, this is more than possible," said Michael.
Hamish MacDonald's report on Channel 10's 'The Project' will broadcast tonight at 6pm.