Detention Is A Legal Twilight Zone

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Our society is developing pockets of lawlessness. There are tax havens, where the wealthy can protect their spoils from pull of the public purse strings. There are free trade zones, where capitalists enjoy the freedom of 19th century labour relations. There is Guantanamo, where the US Government stores people beyond the reach of the law. These places are the too-hard baskets for people we do not wish to deal with, for people too unpopular for us to care about.

In Australia, immigration detention is becoming a legal twilight zone; a place where the normal rules of fairness do not apply.

Both Mohammed Sagar and Muhammad Faisal left Iraq to seek asylum in Australia around 2001. Both were sent to Nauru. Both were recognised by Australia as refugees in 2005. 

Before Faisal left Iraq, he was studying law. But he was not a Ba’athist, and refused to become one, which made things difficult. Tensions grew and eventually he fled at the age of 19. He spent several years alone making his way to Australia, obtaining false passports and living hand to mouth in various refugee camps and cities. He is, like many asylum seekers, resourceful and resilient.

Sagar is more reflective and thoughtful, less emotionally energetic than Faisal. He is a Shi’a, the majority in Iraq but the minority in his home region. This was the basis of his refugee status. Sagar has a wonderful grasp of the English language. When I asked why he left Iraq, his response was: "it became clearer than sunlight that if we did not run for our lives then we would vanish from the face of earth, as did many Shi’a Muslims."

Both Sagar and Faisal, like all asylum seekers, are required to undergo a security assessment before they can enter Australia. For both of them, these assessments were adverse. Neither has any idea why; they have never been told why they were a perceived threat to national security.

This put them in a significantly difficult position. They could not be returned to Iraq because they were refugees who had been found to have a well founded fear of persecution. They could not be given a visa to enter Australia because they were said to be a threat to national security. As such, they faced the very real prospect of endless detention.

Faisal spent about five years in detention, Sagar spent about six. Together they were some of the last asylum seekers left on Nauru.

Eventually, Sagar was resettled in Sweden in 2007. After a brief interview with the Swedish intelligence agency, he was found to be no threat to their national security. Faisal, struggling psychologically, became gravely unwell and was evacuated to Australia for treatment in a Brisbane mental health facility. There he underwent a new security assessment which was not adverse. Without any explanation, the threat to national security had seemingly vanished.

In other words, neither decision by ASIO was vindicated upon review, even when that review had been conducted by the organisation itself.

An application for judicial review of the decision was filed to shed some light on why Faisal and Sagar were given these adverse security assessments. Judicial review is where the court determines whether an executive authority, in this case ASIO, has exercised their powers validly. Maurice Blackburn’s legal team, led by Julian Burnside QC, put evidence before the court about the history of the men, that they had never been involved in any political parties or in any activities that might constitute a threat to national security. This was uncontested by ASIO. No evidence was put before the judge about why these men were given adverse security assessments.

The Federal Court found that neither Faisal nor Sagar were entitled to see the assessments and therefore they could not make any arguments about their contents. They were fighting with one hand tied behind their back and were therefore unable to show that ASIO had acted outside of its powers.

Accordingly, without any information before it about merits of the decisions that these two refugees were a threat to national security, the Federal Court accepted that no error by ASIO could be proven.

These two men found themselves in a Kafka-esque pocket of lawlessness. This is a very serious issue for our system of law: what we are seeing is basically indeterminate detention authorised by an executive arm of government without any avenues to review the merits of that decision. In less legal language, if you are not an Australian citizen, a decision by an ASIO spook can leave you in detention possibly for the rest of your life and there is very little you can do about it.

For both of these men, this decision breaks their hearts. Many refugees find it difficult to come to terms with the treatment they receive when they come here. They seek help, they are in need and, in the case of Iraq, the troubles they have fled are uncomfortably causally proximate to us. But as we are supposedly protecting freedom in Iraq, Iraqi refugees in Australia cannot expect similar treatment.

Sagar and Faisal are not the only ones in this position. In fact, there are nearly two dozen other refugees who have been given adverse security assessments. This should not be surprising, given that refugees are, by definition, persecuted and this can involve activities that are likely to be of interest to national security agencies.

But the fact that assessments are not properly reviewable is surprising because of the effect of these assessments on people’s lives. All of these refugees are currently held in detention, with no current prospect of release. Many have been separated from their families. Indeed, there is an entire family with such assessments, with a toddler who has spent half of his short life inside detention and his sibling who was born inside.

The recent riots on Christmas Island and elsewhere related to the inordinate delays in processing security assessments by ASIO. With exponential increases in its budget over the last decade, ASIO is now a middle sized government department. Yet the average waiting time for a security assessment, according to the Federal Attorney-General, is 59 days. There are whispers of waits as long as nine months. Such uncertainty is inevitably a recipe for restlessness.

There are plenty of practical ways around this problem that are uncontroversial. This includes giving the courts greater powers to review these decisions to ensure there are no mistakes. That would mean letting refugees see their adverse security assessments. Every person should be able to know the allegations made against them and have the right to defend themselves before an open court. It could also mean releasing these people from detention if they receive an adverse security assessment and monitoring them as required while the assessment remains.

These are hardly radical suggestions. But in the climate we are in, it feels as though we are demanding the impossible. Without transparency and accountability over ASIO’s decisions, we allow the needs of national security agencies to trump the human rights of refugees. The human cost of this is high.

Meanwhile, Sagar tries to carry on with his life in snowy Sweden. He provides welcome counsel to Faisal, who has floundered since the decision. He is in pieces that he seems incapable of fitting back together. He has not seen his mother in 13 years. Half of his 20s — the decade when he should have been out enjoying himself, studying, falling in love  — disappeared in Nauru. Since coming to Brisbane, he applied for and was granted Australian citizenship. But he feels like a stranger in this land, spiritually homeless.

Slowly he seems to be improving. He told me recently that he is thinking of getting a dog. A shepherd named Oliver. A trifle perplexed by the choice of name, he explains to me that the name is from the Dickens novel. Faisal feels a connection to the small orphan lost in a frightening world.

 

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