The Case Against Legal Limbo


Let's consider a hypothetical: having survived a treacherous journey to Australia by boat, you are interned at an immigration detention centre either onshore in Australia or offshore at a location such as Manus Island or Nauru. During the arduous process of having your claim for refugee status approved, you are deemed a security risk by the Australian Security Intelligence Organisation (ASIO). There is no reason given for this action.

As a result of this adverse security assessment, you cannot generally satisfy the criteria for a visa, be released into the community or returned to your homeland for fear of persecution. As a result, you face indefinite immigration detention.

This is no hypothetical situation. It is the unfortunate reality facing numerous asylum seekers in Australia’s immigration detention network.

However a recent and significant development has given hope to asylum seekers trapped in this form of legal limbo. A decision by ASIO to conduct an internal review of a security assessment has resulted in the recent release of an asylum seeker, Manokala Jenaddarsan, and her son, into community detention.

This case exemplifies the urgent need for a statutory system of regular review of security assessments, issued by ASIO, in respect of people who are in immigration detention. It also points to the need to develop alternatives to prolonged detention where the particular security risk posed by the individual with the adverse assessment could be appropriately managed in a different way. Without these changes, the current system will continue to fail to meet basic rule of law principles – such as the right to challenge the legal basis for detention – and will continue to cause damage to vulnerable people.

Regular internal reviews are an important part of rectifying the issues surrounding adverse security assessments. Jenaddarsan's case is an encouraging sign that ASIO also acknowledges the need to revisit its assessments. However, there is also a need to provide for a statutory system of independent review of such assessments, which would enable those asylum seekers the opportunity to bring forward additional or relevant information. This would allow a fresh, independent set of eyes to consider the original assessment.

It should be acknowledged that the federal government has recognised the need for independent review of adverse security assessments issued in respect of those in immigration detention and late last year established the position of an Independent Reviewer of Security Assessments.

However, while the role of the Independent Reviewer has been publicly outlined and the review process is underway, concerns remain that this system of review and its independence has not been codified in legislation. For example, the Independent Reviewer may not be able to offer those with adverse security assessments access to the type of information they need to challenge their assessment and can only make recommendations to the Director-General of ASIO about whether assessments should be changed.

Given the consequence of adverse security assessments for the lives of those in immigration detention — which can include prolonged or even indefinite detention in restrictive facilities — a statutory system is urgently needed.

To this effect, it is imperative the government implements a statutory system of review that would require ASIO to conduct regular internal reviews. The system of review would also provide all people with adverse security assessments the right to seek merits review of the assessments by the Security Division of the Administrative Appeals Tribunal (AAT). Access to the AAT currently exists for Australian citizens with adverse security assessments and has features that enable security sensitive information to be protected, while also ensuring a degree of fairness to the person who is subject to the assessment.

This system of review should be made available to non-citizens and it is vital the government take swift legislative action to implement these changes, which have also been recommended by a number of parliamentary committees. These recommendations would enhance rather than detract from the effectiveness of the ASIO security assessment process, which are necessary to protect the community against any threats to national security.

It is important to note this proposed system of review will not always result in release and that there may be individuals that pose specific, ongoing risks to the security and safety of the community. However, as the case of Jenaddarsan demonstrates, there are also likely to be many cases where the risk posed by the individual should be reassessed or managed in a different, more humane way.

For this reason, the government needs to develop alternatives to holding asylum seekers in immigration detention centres, such as conditional release with strict reporting requirements where appropriate, for those people with adverse security assessments. In developing these options, particular priority should be given to those individuals with adverse security assessments who also have dependents or children.

Australia must maintain vigilance in protecting the community from threats of harm but it must also hold strongly to the fundamental rule of law principles that define its legal system. This means developing options to guard against indefinite detention of people who are owed our protection, and ensuring that people like Jenaddarsan have the chance to present their side of the story in a fair and meaningful way.

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