The human face of ASIO’s secret trials

Originally published on http://www.onlineopinion.com.au 

Just before Mothers Day,a pregnant mother of two was given 5 minutes notice to say goodbye to her husband before she and her two boys were flown from their Melbourne home to Sydney’s Villawood detention center. What was a hopeful future, having escaped a country in conflict and arrived in Australia, is now a very uncertain future for dher and her children – that could see them detained indefinitely. The story has captivated the news for the last week as the concept of a young, pregnant woman being forced into detention shocked the sensibilities of many Australians. The young woman’s name is Ranjiniand although disturbing, her story is by no means unique. Her trauma is shared by 50 other recipients of negative ASIO assessments, their families and all the asylum seekers in Australia who face indefinite detention.

Australians have few Constitutionally protected rights. In fact, we only have five explicit rights – the right to vote, protection against acquisition of property on unjust terms, right to trial by jury, freedom of religion and the prohibition of discrimination on the basis of state of residency. This does not mean, however, that the Government is free to behave coercively and oppressively towards individuals or groups of individuals. The Government is only authorized to act on certain matters and in certain ways. For example, the arbitrary detention of individuals without trial is not within the Government’s power except for within a restricted set of scenarios – for example when holding a suspect in custody pre-trial, whilst containing potentially contagious individuals in quarantine or when holding asylum seekers in detention as they wait to be processed.

To some degree, detention is a simple response to a lack of capacity to process administrative claims instantaneously. It’s a practical measure to deal with delays in the system. The problem arises, when the detention becomes systematic and it is characterized by its indefinite term. This is the case with asylum seekers all over Australia. Renee Chan, from Asylum Seekers Christmas Island, describes the effect of protracted detention as extending “beyond a simple restriction of physical liberty. It is the elimination of personal choice and autonomy that most people take for granted”. The brutality of our system is epitomized in the discovery of a new mental health syndrome that has recently been attributed to prolonged periods of detention during the assessment process.

Ranjini had been accepted as a refugee by the Department of Immigration and had commenced a new life, marrying her husband Ganesh and enrolling her children in school in Melbourne. As Senator Sarah Hanson-Young said, “”Ranjini and her family were given refugee status and were happily adjusting to their new lives in Australian before ASIO decided they were a security threat, but the agency will not give her its statement of reasons.”

Ranjini’s case is unusual only because in most cases a negative ASIO security assessment will be returned before the asylum seeker investigated has been accepted as a refugee. In these cases it means they cannot released from detention because they are unable to secure a permanent visa in Australia. Refugee Action Coalition Spokesperson Ian Rintoul explains this as the issuing of a potentially life-sentence of detention for the individual and their families.

So, what happens, then, to Ranjini and the 50 other people like her?

If like Ranjini, they have been accepted as refugees – they cannot be sent back to their countries of origin. By virtue of their refugee status, the Department of Immigration and Citizenship has already assessed the evidence before them and decided that they possess a genuine fear of persecution based on their race, gender, religion or political views. To send them back home would be in breach of Australia’s obligations under Refugee Convention(to which we are signatory and bound to by virtue of its enactment in domestic law, the Migration Act). As signatories to the Refugee Convention, Australia is bound by the principle of non-refoulement which prohibits Australia from sending any individual who has a well-founded fear of persecution to a country in which they may face danger.

They cannot be sent to another country. What country is going to accept an individual from Australia who has been deemed a security risk with no accompanying explanation or reasoning?

Without judicial recourse or access to review, without the opportunity to challenge the evidence that was used and apply the scrutiny and rigor to each case that would be exercised in any other area of Australia’s justice system; those 51 individuals are caught in limbo. This potentially life-long duration of this limbo was first examined in the High Court in the case of al-Kateb,a stateless Palestinian man who was born in Kuwait and fled to Australia seeking asylum. He was denied a protection visa. The problem arose when the government failed to find a country which would take Mr al-Kateb despite his pleas that he would prefer to leave than to be indefinitely detained in Australia. The High Court determined that there was no strict temporal limitation to detention.

This precedent, as well as the Constitutional validity of Australia’s indefinite mandatory detention scheme will be challenged in the High Court by a team of lawyers lead by David Manne who successfully challenged the Government’s proposed ‘Malaysia Solution’ last year. Concurrently, the Greens will attempt to push through legislative change with a bill which “would create a special advocate to hear those reasons” to protect National Security whilst ensuring some basic protection of individual rights and freedoms, explained Senator Hanson-Young.

Human rights advocate and barrister Julian Burnside QC, explained that the High Court case will challenge the precedent set by the al-Kateb case which effectively authorized indefinite detention. Mr Burnside indicated that issue of the criteria used to exclude individuals from receiving refugee status might also come into play when assessing whether or not there is a real possibility of their removal, rather than their indefinite detention. In Australia, an individual is declared a refugee “to whom Australia owe protection obligations” (s36(2)(aa) Migration Act) if they fulfill certain criteria under four articles (that establish they face a real and well founded fear of persecution). They can be excluded if they have committed crimes against humanity, war crimes or other crimes seriously contrary to the values of the United Nations (36(2C)(a)) or if the individual is found to be a danger to the Australian community under s.36(2C)(b) of the Act. These decisions are not able to be reviewed through the normal processes of appeal to the Refugee Review Tribunal, and in the case of an adverse ASIO assessment, they cannot even be subject to review by the Administrative Appeals Tribunal.

Australia’s mandatory, indefinite detention policy stands alone in the Western democratic world and has been subject of extensive international criticism. Australia also stands alone in the absence of review mechanisms it affords to ASIO decisions. Senator Hanson-Young explained, “there must be a fair, just and due process that allows people detained indefinitely by the Immigration Minister because of an ASIO assessment to be able to put their case. They deserve to have a fair right of reply, just like is done in New Zealand, Canada and the UK.”

National security is a valid policy consideration. But it should not, and cannot, be allowed to green light the indefinite detention of individuals with no obligation to provide reasons, no avenue to challenge decisions and no independent review that due process is followed. To allow this is inherently offensive to the democratic values that protect the liberty of individuals from the arbitrary or coercive exercise of government power.

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