Legal aid lawyers have filed a constitutional challenge to Australia’s restrictive migration law and the legality of detaining asylum seekers transferred to the country from offshore camps for medical treatment or other temporary purposes.
A hearing in Australia’s highest court is scheduled for Wednesday in the capital, Canberra. A decision is not expected immediately.
Dan Nicholson, who oversees the migration program for Victoria Legal Aid, which filed the case, said a ruling could help clarify whether the Constitution allowed the Australian government to detain asylum seekers brought to Australia from the Pacific Island countries of Nauru and Papua New Guinea, and to define how long that detention could last.
“It’s an important case because it’s testing the government’s power to detain people who have not been charged with a criminal offense,” Mr. Nicholson said. “The nature of the detention is that there is no legislative time limit on it. There’s not even a requirement to give or even provide reasons.”
Under constitutional law, asylum seekers can be detained for “a reasonable period” for specific purposes, such as while they are being deported or awaiting visa approval. But Mr. Nicholson said some asylum seekers flown into Australia for medical treatment from offshore camps have languished for years in detention.
The case, filed in the state of Victoria, involves an unidentified mother and daughter from Iran. They were transferred from Nauru to Australia for medical treatment in 2014. In Melbourne, the mother was treated for osteoporosis and the daughter for removal of a breast lump. They have both also been treated for health issues arising from their detention, including anxiety and panic disorder.
They remained in detention for two years while they were being treated and were only released into so-called community detention, which allows for some freedom of movement but has curfews and other restrictions, after the first submissions in their case were filed.
“The point is they are not brought here to have their refugee status determined,” Mr. Nicholson said.
If the challenge to detention is successful, it would be mean those brought here for medical treatment from offshore processing centers — where Australia has been confining hundreds of asylum seekers intercepted at sea since 2012 — could not be incarcerated while being treated. Generally, only the most seriously ill asylum seekers are brought to Australia for medical attention. About 70 are in the country now.
In 2014, an Iranian asylum seeker detained at Manus Island in Papua New Guinea died after developing severe sepsis from a leg infection. An inquest into his death last year found delays in transporting him to a hospital in Australia for treatment.
“This is not just an academic exercise,” Mr. Nicholson said of the Victoria case. “It does real harm to people’s health.”
Legal experts said the case was part of a broader effort to challenge the expansive powers the Australian government had given itself through successive changes to the Migration Act — the law regulating the government’s powers to make decisions relating to migration and asylum.
Ben Saul, an international law professor at Sydney University, said the impact of the decision in the case would most likely be limited.
Australia, he said, is “highly unlikely to close down offshore detention because it insists that existing health care is adequate, despite the overwhelming evidence that protracted detention undermines refugee health.”
Mr. Saul added that even if the Victoria Legal Aid case succeeded, its impact might not last long in the current political environment.
“Australian governments have a habit of legislating quickly to neutralize or overturn unfavorable High Court decisions in relation to immigration,” he said, “particularly since Australia has no constitutional bill of rights to prevent parliaments doing whatever they want.”
Mr. Nicholson said the case needed to be filed, regardless of its lasting impact. “We know that this detention is very harmful to people, including our clients,” he said. “There are doubts about its legality, so it’s important that it is tested.”
A Melbourne street-art mural featuring a Muslim feminist protest paste-up by prominent artist and activist Ms Saffaa has been defaced in an act of vandalism the artist has labeled a “personal attack on Muslim women”.
Featuring pictures of well-known Saudi activists and artists, women in headscarves, Saudi poetry and a pink stencilling of the words “radical Muslim”, the mural was defaced on Saturday night, with the faces of the women blacked out and the words painted over.
Ms Saffaa collaborated on the mural with a handful of emerging and well-known female artists, including the American writer and artist Molly Crabapple. Saffaa said she believed the vandalism was fuelled by a political climate of rising anti-Muslim sentiment.
“I almost wanted to cry … it’s quite disheartening,” said Saffaa, a Saudi-Australian artist. She expected the work to be tagged by other street or graffiti artists, but says the extensive defacing had more aggressive overtones.
The self-funded work, which went up in December, took months of preparation and ten eight-hour days to complete, she said.
“I feel like it’s not just an attack on me but them too,” she said, referring to the Saudi women represented in her work. “What do I tell these women? You have to fight the misogynist men back home and the Islamophobic racist bigots in this country?”
The mural forms part of the #iammyownguardian campaign, a movement protesting Saudi Arabia’s guardianship system which prohibits women from travelling, marrying or even leaving prison without the permission of a male guardian. Saffaa’s imagery – featuring a face shrouded in the Saudi shemagh – became emblematic of the movement.
Crabapple said the work was a reflection of the complexity of the Muslim western experience that challenged conservatives on both sides of the spectrum.
“I couldn’t decide if the perpetrators were Islamist misogynists, infuriated by the mural’s opposition to Saudi Arabia’s male guardianship system – or Islamophobic racists, infuriated by the mural’s depictions of proud Middle Eastern women and assertion of multifaceted Muslim identities,” she said.
“No matter who did it, those who try to blot out art reveal only their own impotence. Censors always lose.”
The mural is featured on the wall of Morroccan Deli-cacy cafe, run by feminist activist Hana Assafiri.
Assafiri, known for hosting public salon-style conversations at her Melbourne restaurants, says she discovered the vandalism as she was opening the cafe on Sunday morning.
Assafiri, who employs only women, says vandalism in Melbourne’s progressive inner-city enclave highlighted her fears around security at the restaurant.
She also expressed concern at the ripple effect from the election of President Donald Trump in the United States on local artists and communities, particularly the recent executive order barring Muslim migrants and refugees from certain countries from entering the US.
“That this sort of rubbish and the expression of hate can be had in East Brunswick … it’s a manifestation of an attitude of continued bigotry and hate being fostered in all political climates.”
Saffaa said she felt “heartbroken and drained” at the prospect of repairing the wall.
“This has taken its toll on me [but] of course I will redo it bigger and better.”
The Australia-based artist’s work is emblematic of the movement protesting against Saudi Arabia’s guardianship laws
The Saudi visual artist Ms Saffaa is a petite woman with cropped hair framing a pixie face. Her mural, plastered on a studio wall at Sydney University’s College of the Arts almost dwarfs her.
It is a riotous mix of calligraphy, graffiti and portraits featuring the women’s rights activists Manal Al-Sharif and Samar Badawi, both part of a nascent movement protesting Saudi Arabia’s guardianship laws.
The protest gained steam after the July release of a Human Rights Watch report, which was critical of the laws prohibiting a woman from travelling, marrying or even leaving prison without the permission of a male guardian.
The 39-year-old artist, who moved to Sydney to study at the SCA in 2009, says the inspiration for her art came from continuous run-ins with Saudi authorities over her visa.
A condition of Saffaa’s now lapsed government scholarship required her brothers to fly in to Australia to vouch for her. But it was the hours of humiliating pleading with Saudi bureaucrats in Canberra that fuelled the rage behind her protest art.
“You have to play their game,” she says. “You have to act like the weak woman and say, ‘Thank you for doing this for me, it’s a huge favour.’ You have to play that role in order to get your shit done.”
Saffaa’s posters, featuring a face shrouded in the Saudi shemagh and the hashtag #iammyownguardian, became emblematic of the movement. They were plastered on Saudi streets, retweeted and sold online.
It led Saffaa into a thriving underground online protest scene filled with local and expat Saudi women. Many were housewives, sharing stories of life in the regime. Saffaa says Saudi women defending the laws were generally from the ruling class with ties to the government.
“Those who have really good jobs, really good pay and connections to government have a lot to lose,” she says. “They will tell you we’re content.”
For Saffaa, speaking up has its costs. The artist, who uses only her first name, has suffered harassment and been reported to Saudi authorities by trolls.
“[They say], ‘Let’s all report her, let her rot in jail, let’s see her make art behind prison bars.’ I thought I was immune to online bullying and harassment but it got to me.”
At an exhibition at Melbourne’s Islamic Museum of Australia, the artist was accosted by a man demanding to know why she was exposing Saudi’s dirty laundry to the west.
“Before I could even speak I could feel the anger inside me,” she says. “I was sweating. I felt the heat coming out of my face … a man comes with all his privilege and entitlement, and asks me why am I airing our dirty laundry to the west?
“First of all you’re admitting that it’s shameful, there’s shame behind the question. But you’re coming to me and telling me not to do something, trying to censor me.
“I was thinking, ‘That’s exactly why I make this art, because of people like you.’”
The sneakers-wearing activist uses street art and social media to promote millennial-style political protest that is transnational and cyber-driven but still rooted in the street.
This Sunday, Saffaa will unveil a new street mural in Melbourne’s Brunswick East, a collaboration with several female artists as a tribute to Saudi women. The launch will be hosted by Moroccan Deli-cacy cafe owner and community activist Hana Assafiri, known for hosting public salon-style conversations at her Melbourne restaurants, including the hit speed-date-a-Muslim series.
Saffaa says her work is motivated not only by political injustice but a visceral need for self-expression.
“What the role of the artist is goes back to the question of, what is the role of art?” she says. “It goes beyond trying to raise awa
Part of her activism is borne out of subverting the western framing of Saudi women as victims, rather than as agents of their own liberation. This co-opting, she says, only furthers the infantilisation they were fighting against, with women used as pawns in a cultural battleground of rising Islamophobia.
“Don’t say Saudi women don’t have a voice. We have a voice. You just haven’t been paying attention.”
Saffaa says the fight for women’s rights in Saudi Arabia is part of broader struggle against state authoritarianism, for the rights of all minorities. As a believer, she questions the way the kingdom sought legitimacy through a hardline Wahhabi interpretation of religion.
“There’s so much policing of women’s bodies and even men,” she says. “I think faith is a personal thing and in Saudi they make it a public thing. You have to display your faith everywhere you go.”
• A new work by Ms Saffaa and several other female artists – in tribute to Saudi women and women in conflict zones – will be launched on 4 December at Moroccan Deli-cacy in Brunswick East, Melbourne
This article was originally featured in The Guardian on December 1, 2016.
Sayed Abdellatif’s horizons are low already, and narrowing still.
Where once he could wave to his family through a wire fence, he has been told by guards – without explanation – that the behaviour was a security risk and prohibited.
Now the only time he has with his wife and six children are the crowded hours spent in the overfull and noisy visitors’ area of Villawood detention centre in Sydney; a cavernous and impersonal room where guards wearing black vests and body cameras with listening devices quietly loiter to electronically eavesdrop on conversations. His children must wear brightly coloured wristbands to see him. The wristbands mean they can leave. His wrists are bare.
Abdellatif has watched hundreds of asylum seekers pass through and out of detention: granted bridging visas, protection visas, some deported. He has seen people set themselves on fire in detention, hang themselves and stab each other. Sniffer dogs invade rooms without notice seeking out drugs.
Abdellatif doesn’t count the days – 1,643 – he has been in held immigration detention. He knows broadly it is four-and-a-half years and he knows he remains no closer to a resolution of his case than the day he arrived in Australia.
In that time, he has seen four Australian prime ministers come and go. He follows politics closely and jokes darkly he may see many more. He has not been charged, nor accused of any crime in Australia.
His detention has been condemned by the UN human rights council as illegal, a “clearly disproportionate… deprivation of liberty” from which he should be released and for which he should be compensated; excoriated by the Australian Human Rights Commission as “arbitrary … and unjustified”; and criticised by the Australian government’s own inspector general of intelligence and security for its “lack of coordination and … urgency”
Four times the department has recommended to successive ministers that he be allowed apply for a protection visa. He remains in detention.
Now, new documents obtained under freedom of information legislation reveal the government has known for nearly 18 months that the evidence used to convict Abdellatif in absentia in a mass show trial in Egypt in 1999 – the basis for his detention in Australia – was obtained “under severe torture” and is discredited.
A briefing paper read and signed by the immigration minister, Peter Dutton, in April 2015, two months after a Guardian story, states documents in possession of the department “raise concerns about the legitimacy of the trial”.
“Translations of supreme military court documents and signed statements from witnesses indicate that the evidence used against Mr Abdellatif in the Egyptian trial was obtained under torture.”
But the same document also shows the immigration department seeking to assure the immigration minister that Abdellatif can still be kept in detention without charge or trial, regardless of the legitimacy of his claim for protection.
Department officials recommended that Abdellatif be allowed to apply for a visa, so that it could then be denied to him and the process used to force him out of Australia.
“If Mr Abdellatif was permitted to lodge a valid TPV [temporary protection visa] application, it would be refused as he would not meet the criterion in the new subsection 36(1B) of the [migration] act (which refuses a visa to anyone judged by Asio to be directly or indirectly a risk to security).”
Officials recommended that Abdellatif be allowed to apply for a visa, so that it could then be denied to him
An asylum seeker cannot legally be removed from Australia before their claim for protection is assessed. Therefore, bureaucrats argue to the minister in the briefing, allowing Abdellatif to apply for a visa, only to then reject it, “provides the strongest basis for effecting removal as it reduces the risk of successful litigation and, therefore, is the proposed mechanism to assess Mr Abdellatif’s claims”.
The briefing contemplates approaching Egypt – the only country of which Abdellatif is a citizen or has a right to enter but also the country from which he seeks protection from persecution – to ask that country to request his extradition.
Egypt has made no effort to reclaim its citizen and the briefing notes “securing adequate diplomatic assurances cannot be guaranteed … until thorough consideration has been given to Mr Abdellatif’s security concerns and his specific claims including the risk of harm on return to Egypt”.
On 19 May 2015, the immigration minister granted the Abdellatif family leave to apply for temporary protection visas in Australia.
Abdellatif undertook 22 hours of interviews over four days with department officials in February and March 2016 but nearly a year later is no closer to finding out the outcome of his application.
Abdellatif has no recourse to any appeal while he is detained and while his case remains before the department. It has barely progressed, save for the growing mountain of paperwork that only serves to confirm the Kafka-esque stalemate he is in.
A spokesman for Asio – the agency that gave Abdellatif an “adverse security assessment” on the basis of the flawed Egyptian trial – told the Guardian: “Consistent with long standing practice, Asio does not comment on individuals.”
A spokeswoman said the department “does not comment on individual cases”.
Exile and detention
Abdellatif fled Egypt in 1992, having been tortured under the regime of Hosni Mubarak. In that year, he was arrested from a mosque by the state security investigations service as part of a crackdown on Islamic political opposition to Mubarak’s rule. Since fleeing his homeland, he has remained in exile from his country, living as a refugee in Albania, the UK, Iran, Malaysia, Indonesia and – finally – Australia. All of his six children were born during that exile.
Abdellatif and his family arrived in Australia by boat in May 2012. The Australian government assessed his claim for protection and found that he and his family had a prima facie claim to refugee status.
The trial, criticised by rights groups at the time, was later found to have been fraudulent. A three-year Guardian investigation has shown multiple flaws in the case against him and Australia’s handling of that case.
But, beyond the arcane legal machinations, Abdellatif’s case had the misfortune to become a political firestorm at the height of 2013 pre-election debate over boat arrivals. The then opposition leader and later prime minister, Tony Abbott, labelled Abdellatif a “convicted jihadist” and a “pool-fence terrorist”, in reference to the low-security perimeter at the Inverbrackie detention centre in South Australia. George Brandis, now the attorney general but then the shadow attorney general, said he was “plainly a convicted terrorist”.
The Abdellatifs were moved to Villawood. There, Sayed Abdellatif remains. His case has hardly progressed and the systemic flaws in his detention have never been addressed by the department.
In a narrow booth in the visitors’ area of the detention centre, Abdellatif’s two eldest daughters fuss about him, spreading out cake and ma’amoul – a Middle Eastern date pastry – as he sips distractedly at a weak, milky tea served in a polystyrene cup.
His eldest son, now 13, bears a striking resemblance to his father. A child when he came to Australia, he is a young man now, sporting a stubble on his chin and quiet, defiant eyes. A younger brother, now six, can barely remember what it is like to live with his father.
The children are “doing very well, I am very proud”, Abdellatif says of their lives on the outside. But they carry the burden of their father’s incarceration too. School graduations, speech nights, Abdellatif has applied – and been rejected – to attend them all.
A life of exile – all of his children know only displacement – has bound the Abdellatif family tightly together: throughout their incarceration in Australia, members of the Abdellatif family have resolutely insisted they not be forcibly separated. But a bureaucratic sleight of hand saw the family’s situation transmogrify yet again.
Earlier this year, Villawood detention centre’s family compound – where Abdellatif’s wife and six children were housed – was overnight redefined as “community detention housing”.
While the security cameras that had watched them were disabled, and gates unlocked, the Abdellatif family remained in the same house but the change to their detention regime allowed the immigration minister to declare there were no longer any children in immigration detention in Australia.
Now ostensibly free, the change has, perversely, forced Abdellatif’s family further from him. The 10-minute internal route within Villawood that joined the family and the high-security compound is now sealed, forcing the family to thread their way through Villawood’s suburban streets on foot to see their husband and father, now a few hundred metres but an hour’s walk away.
Even in their brief moments of communion, there is a weariness about the Abdellatif family, a resignation that, even as they try to enjoy the few hours they have together as a family, they can never wholly forget their cloistered, confining surrounds.
Abdellatif’s is life spent in limbo, at the mercy of a bureaucratic caprice he can neither question nor predict. Still, after four-and-a-half years, he holds hope.
“I came to Australia not to fight with Australia but seeking protection,” he says. “I am a friend, not an animal.”
The indefinite nature of his detention wears on him, he explains, grinding down his spirit and triggering crushing bouts of depression that he must fight to pull himself from. Abdellatif’s treating psychologist and psychiatrist have both recommended to the government he be reunited with his family in the community “given the significant impact separation from his family in a held detention environment is having on his mental health”.
“I’m wasting my life in this place,” he says of his incarceration. “If I was sentenced, if I made a mistake, I’d pay the price. But I have done nothing wrong, I have nothing to hide.
“Even in jail they have a time, they know how long … but this system is killing hope.”
Abdellatif spends most of his days alone, in his room, a tight, airless cell with a toilet, a single bed and a chest of drawers, and from which, if he stands on a stool, he can see the outside world through a high sealed window. But the view is only of the detention centre’s water tank and the steel fences that hold him in.
Abdellatif speaks haltingly these days. His English, once strong, is getting worse with the isolation of his existence.
Now, he can barely be heard above the din of the visitors’ room. He leans in to speak, first glancing over his shoulder to see who – the guards wearing cameras can appear at any time – might be listening.
Here, we are nowhere, he says. And there are no rules.
“We are out of Australia. We are out of the world.”
Check out Episode 1 and 2 of my new two-part race podcast ‘In My Shoes’ exploring race and identity in modern Australia featured on ABC’s Radio National program ‘Earshot’ here. You can also stream the podcast on itunes. Click on the hyperlink and scroll down to Episode #37 and #41 to play.
Here’s the accompanying piece where I talk about the inspiration behind the program.
Sarah Malik reflects on the life experiences that led her to produce In My Shoes.
‘Migrants are ruining this country,’ he hissed. The words dropped like acid and felt like a punch in the gut. I turned to my desk, staring blankly at the screen, my ears burning with embarrassment.
I walked outside and ordered a coffee, staring at the cloudy foam swirls before going home to vent to my sister. He was an old man, irrelevant, a dinosaur, we fumed.
Perhaps it was a valuable insight to observe the last gasps of a Trumpian type in his natural habitat, we reasoned.
Now, against all predictions, the impossible has happened. Donald Trump is in the White House. There are reports of hate crimes being perpetrated against minorities across the US.
It feels like a slow corrosion of the soul to know these types of people have been emboldened by assent from the top.
I’m a journalist by trade. I also grew up as one of five children of Pakistani migrants in the western suburbs of Sydney.
I ate biryani with my hands and dutifully wore figure-concealing shalwar kameez. I left home at 20, entering the outside world in a kind of Muslim version of the Rumspringa.
But I always return; how many can resist what is familiar? It’s complicated negotiating the strange pull of what you love.
I was like a high-wire walker, trying to navigate traditional, working class Pakistani roots, a conservative religious culture, a largely white-dominated working environment — at the mercy of the changing political winds of a society that provided no mirror to my experience.
It felt like I was living two, three or four different lives, each with their subtle and sometimes strict codes of conformity.
My maladaptive default mechanism has always been to bury fear and unease deep inside, letting it coil up until I have the words to make sense of it, rather than risk confrontation and ostracism.
This was as true growing up within a cloistered culture as it has been living in a wider society that makes judgemental and clueless assumptions about that culture.
It has always felt unsafe, depleting and ultimately useless to risk confrontation with people I care about, people with power and people who will never know what it is to like to live with a constant sense of dislocation from my environment.
As a journalist I thought I had become inured to the weird and wacky, brushing off bluster with a laugh, but the rise of the far right feels personal.
All the individual kindness, consideration, art and thinkpieces in the world seem obsolete the world of Pauline Hanson, Trump and Brexit.
The In My Shoes documentary is an attempt to make sense of the experience of negotiating race in modern Australia. My intention is to put you in the shoes of the people bearing the brunt of this.
The interviews are an attempt to explore how to navigate these fissures in a personal and creative life. I wanted to explore how this discomfort can be isolating, but also provide fuel for anger, art and storytelling.
It’s about using my own position within this sphere to open up a conversation between friends and equals about difference. The second episode focuses on women and the dual challenges of responding to misogyny and racism, both in wider society and within communities.
The documentary was inspired by my own experience of navigating disjuncture.
I have spent a career trying to go ‘beyond’ myself. As Stan Grant opined, ‘I wanted the right to explore the whole world.’
I saw my activist friends enmeshed in community and identity politics burn out, fuming at a media cycle in which they existed always as subjects, refracted through the gaze of power. I want to be the power, not its subject.
But in the current political landscape, to go ‘beyond myself’ feels like a negation, a continuation of the shapeshifting I have done my entire life. I had perfected the code-switching dance of the chameleon, reading the cues of an environment, morphing into what I needed to be to survive, amputating myself in the process.
I have fantasised about being a white person, enjoying the ease of a seamless life, affirmed by my environment. The ultimate luxury: to be free of a political and personal landscape that at every turn forced me to question, guilt and doubt myself.
The only times I have ever experienced alignment and relief are the rare moments I have been brave enough to be myself, existing uncomfortably within all those different spaces, at times to my detriment.
This ability to shift and change registers has made me sinewy and curious, interested in the other. I have an intimate understanding of being that other. That’s a plus for my work, and ironically allows me to easily adjust and connect with different kinds of people.
I wanted to have the kinds of conversations I have in private, out loud, with people whose work has illuminated the tensions I’ve experienced.
The people I interviewed in this two-part series have been a source of inspiration to me. They emphasise the power of words, art and scholarship to validate, create new understandings and challenge old ones.
These conversations gave me solace. I know there are others in this in-between space, anxious and struggling to speak about an experience they have no precedent or roadmap for.
They also showed me how my insider/outsider status can be a useful place to deconstruct power. Who knows its contours better than the person at the receiving end of its indignities and silencing?
As British writer Hanif Kureishi said: ‘It could be, the stranger, with a mixture of naivety and knowing, might be in a position to tell us the truth about ourselves, since he sees more than we know.’