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.”
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.”
Exclusive: ‘Arbitrary’ detention of Egyptian asylum seeker, his wife and six children is ‘clearly disproportionate’, UN human rights council tells Australia.
By Ben Doherty and Sarah Malik
Sayed Abdellatif, an Egyptian asylum seeker falsely condemned as a terrorist by political leaders, should be immediately released from his “arbitrary” and “disproportionate” detention, which breaches international law, the UN has told Australia.
Abdellatif, his wife and six children have been held in detention for more than three years without charge.
In a seven-page formal communication sent in June and obtained by Guardian Australia, the UN’s human rights council – which Australia is seeking to join in two years – directed Australia to immediately release Abdellatif and his family. .
“Under international law Australia has a duty to release Mr Abdellatif, his wife and and their six children and accord them an enforceable right to compensation,” the council said.
But Abdellatif and his close-knit family – his wife and children daily endure the trial of wristbands, metal detectors and reinforced doors to see their husband and father in the high-security wing of Villawood detention centre – have said compensation is far from their minds.
“Freedom,” Abdellatif told Guardian Australia quietly amid the chaos of the detention centre visitors area. “We are only thinking about our freedom. We are not thinking about compensation.”
Abdellatif’s detention has exposed consistent and wilful failings within several government agencies. Asio, the Australian federal police and the Department of Immigration and Border Protection have collectively displayed “a lack of coordination, a duplication of effort and a lack of urgency”, in handling the family’s case, Australia’s statutory inspector general of intelligence and security, Vivienne Thom, found.
Abdellatif fled Egypt in 1992, having been tortured under the regime of Hosni Mubarak. 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.
He has remained in exile from his country since, living as a refugee in Albania, the UK, Iran, Iraq, Malaysia, Indonesia and – finally – Australia.
All his children were born during that exile. His youngest, a five-year-old boy, has never lived a day free, only knowing life in detention in Indonesia and Australia.
Abdellatif and his family arrived in Australia in May 2012. Australia assessed his claim for protection and found that he and his family had legitimate claims to refugee status.
But while the family were in immigration detention in 2013 Australian authorities were alerted to an Interpol red notice that said that in 1999 Abdellatif was convicted – in a mass show trial in Cairo of 107 men – of premeditated murder, destruction of property, and possession of firearms and explosives. He was sentenced to 15 years in prison.
The trial, criticised by rights groups at the time, was later found to have been fraudulent. Evidence against Abdellatif was obtained by “severe torture”, including electric shocks.
But the case became the centre of a political firestorm when the red notice became known publicly. The opposition leader, later prime minister, Tony Abbott labelled Abdellatif a “convicted jihadist” and a “pool-fence terrorist”, in reference to the low-security fencing at the Inverbrackie detention centre in South Australia. George Brandis, now the attorney general but then shadowing that position, said he was “plainly a convicted terrorist”.
The Abdellatifs were moved to the higher security Villawood detention centre in Sydney, where they have remained.
In a two-year investigation, the Guardian has shown:
Allegations of murder, firearms offences and property destruction were never made against Abdellatif at his Cairo trial and were wrongly attached to the Interpol red notice. After the Guardian’s investigation, which included examining the Egyptian court records and transcripts, Interpol took the extraordinary step of withdrawing those charges from the red notice.
The remaining convictions against Abdellatif, for “membership of a terrorist group” and “providing forged travel documents”, relied on evidence obtained under “severe torture”. Abdellatif was convicted in absentia, without any chance of defending himself against the allegations. He has denied both charges in a letter to the Guardian.
The Australian federal police were provided with evidence, in Arabic, that Abdellatif’s convictions for violent crimes were false, and had been withdrawn by Interpol, but took six months to translate the document – then failed to tell Asio or the immigration department of this new information.
A report by Australia’s inspector general of intelligence and security said Abdellatif had not been convicted of any terrorism-related charges and made clear he was not a threat to national security.
Scott Morrison, when immigration minister, defied the advice of officials from his own department, who had recommended Abdellatif be allowed to apply for a visa, and refused to allow Abdellatif to make an application.
In June this year, the UN human rights council’s working group on arbitrary detention wrote to the Australian government: “The detention is clearly disproportionate … the deprivation of liberty of Mr Abdellatif, his wife and their six children is arbitrary,” it said.
“Under international law Australia has a duty to release Mr Abdellatif, his wife and and their six children and accord them an enforceable right to compensation.”
Guardian Australia has made repeated attempts to seek information about Abdellatif’s case from the immigration department. After promising to provide answers to a series of questions, it declined to comment.
Abdellatif’s wife and family have previously been offered community detention but the family have consistently said they do not want to be separated from their husband and father.
Nearly six months after the UN direction, and after more than three and a half years in detention, the Abdellatifs remain incarcerated – Sayed Abdellatif in the high-security wing of Villawood detention centre, his wife and children in the family compound.
This year the department wrote to the family informing them that the immigration minister, Peter Dutton, had “lifted the bar” on their application for a protection visa. The family submitted a visa application in July, which has been acknowledged by the department as a “valid application”. But there has been no communication since.
Abdellatif says he feels that his life and those of his children are being slowly destroyed by their continuing detention and separation. “It’s been six months since the Australian government received [the UN] report but they did nothing, they ignored it completely,” he said.
“No one in the department is [taking] responsibility for our detention. We’re losing our lives by the immigration department of Australian government and no one cares. Who will take responsibility for this wasting of our lives?”
Abdellatif said he was constantly frustrated in his efforts to communicate with the department. He believed it was embarrassed by its handling of his case.
Analysis Sayed Abdellatif: asylum seeker trapped in detention by callous disregard
This man and his family remain locked in Australia’s detention system, despite recommendation from immigration department to grant visa
“They keep us in detention because we are found to be innocent,” he said. “They don’t want to say, ‘We were wrong’. They think, ‘We should keep them in detention to avoid embarrassment.’”
His children were suffering and the government was not interested in redressing its past mistakes, he said. “They think, ‘You can prove your innocence, but we are going to destroy you, every one of you.’”
The human rights council is one of the UN’s most powerful bodies, mandated with “the protection and promotion of all human rights around the globe”.
The foreign affairs minister, Julie Bishop, told Guardian Australia in September the government was “strongly committed” to a bid for a seat on the council for 2018-20.
Australia will compete against Spain and France for two seats from its poli-geographic group in 2017.
An asylum seeker at Villawood detention centre has set himself on fire and is in hospital with serious burns, sparking an investigation by the immigration department.
The male asylum seeker sought protection in Australia along with his family in 2010 and now has six children including a two month old infant.
The asylum seeker’s wife told Guardian Australia she was at a library with her children when she received a call about the incident.
“From what I’ve been told is that it is self inflicted harm and it’s a burn incident,” she said. “There was about 10% burns on his face right down to the left of his neck.”
She said the immigration department has not provided her with further details about the incident or events preceding it.
Her husband had been suffering depression since he was taken to Villawood in January 2015. He made a previous self-harm attempt while in detention.
“He has not seen or touched the newborn child,” she said. “He doesn’t want the kids to even see him in detention. He doesn’t want them to be a part of it.”
The family sought protection in Australia from the United Arab Emirates after arriving on a tourism visa by plane to Australia in 2010. They were refused a protection visa in 2010, and lost an appeal to the refugee review tribunal in 2011.
The man was taken back into detention following an unsuccessful federal court bid. His wife and children were also taken to Villawood detention centre in June 2015, but were released so she could give birth to her sixth child.
The family has exhausted most avenues of legal appeal for their protection claims in Australia.
“Why he did this is because he felt so helpless,” the man’s wife said. “Sometimes it’s too much. I cannot measure it anymore.”
A spokeswoman for Department of Immigration and Border Protection said: “The department can confirm that a male detainee was taken to hospital yesterday 17 September 2015, following a self-harm incident at Villawood IDC.
“The individual is receiving appropriate medical treatment, but his injuries have been assessed as non-life threatening. The department is investigating the matter.”
The incident is the second time a person held in immigration detention has set themselves on fire this week.
On Tuesday Ali Jaffari, a Hazara man in Perth immigration detention centre, also set himself on fire and later died from his injuries.
In May 2014 a Tamil asylum seeker, Leo Seemanpillai, self- immolated after spending 18 months in legal limbo.
In Australia, the crisis support service Lifeline is on 13 11 14. Hotlines in other countries can be found here.
This article was originally published in the Guardian. Read the original article here.
My latest in ABC’s The Drum on the death of little Aylan Kurdi and government’s reaction to the Syrian refugee crisis. I haven’t reprinted the image- I think everyone has seen it already. Also here a great discussion on the debate around the publication of the distressing images.
The fact that the Government would pause in light of such a visceral tragedy to suggest that Australia should prioritise Christian refugees from Syria speaks volumes, writes Sarah Malik.
It was the picture that shocked the world.
A little boy lies face down on the beach. His still, lifeless body caressed gently by waves. His sandals are still strapped to his little feet. In his neat red shirt and little blue shorts, he could be sleeping or resting.
A Turkish police officer stands to one side, his shoulders hunched as if in prayer.
The discovery of Aylan Kurdi’s body on a Turkish beach last week cut a searing image in the conscience of the world. It tore through the ballast of politics, rhetoric and racialisation that continues to obscure one of the great humanitarian crises of modern times.
The little boy who perished along with his brother Galip and mother Rihan, one of 12 Syrian asylum seekers trying to reach Greece when their boat sank, represents the many thousands seeking safety and asylum as their country is torn apart by war and conflict.
The picture of the doll-like three-year-old on the beach has galvanised public opinion around the world, forcing even the Australian Government to outline its commitment to Syrian refugees. But the racialisation continues, with Barnaby Joyce calling for Syrian Christians to be prioritised in any asylum intake, a motion that has been echoed by Prime Minister Tony Abbott.
Australia was recently criticised in the New York Times for a military response to asylum seekers which is shrouded in secrecy. This has been combined with bizarre border security campaigns including thefarcical ‘Operation Fortitude’, a proposal quickly scuttled after widespread ridicule.
The campaign purporting to subject Melbourne residents to random visa checks underscores a Government that will take advantage of any opportunity to represent itself as the strongman protecting us from the ‘illegal’ hordes threatening to destabilise Australia.
The fact that the Government would pause in light of such a visceral tragedy, blasted into public consciousness in such horrific fashion, to make a subtle distinction on the kinds of Syrian asylum seekers it would be willing to consider is callous.
It speaks to the depths it will go to in order to stoke fears of the brown Muslim hordes threatening our pristine white borders.
It doesn’t take much to read between the lines of random visa checks and the prioritisation of Christians. People like us only, please.
The image of Aylan underscores the vulnerability of those fleeing, their powerlessness in the face of a political and military machinery that punishes and paints them as threats. It is a powerful image that threatens the curtain of abstraction, silence and othering that has come to characterise the rhetoric around refugees.
This otherising of refugees, the destruction of their humanity, allows travesties such as our detention regime, regularly exposed as rife with reports of sexual assault, violence, suicide and depression to continue with impunity.
When it becomes a crime for employees to talk publicly about what happens in detention centres with the passing of the Border Force Act, when refugees live in fear of speaking to journalists, with access a constant issue, the result is an abstraction. It is an easy to demonise an abstraction.
Aylan’s picture has blazed onto the soul of the nation the reality of the human. This child’s death must inspire us to look beyond categories of race and religion and towards a common humanity.
The most powerful threat to an abstraction is the power of the singular. A child just like yours, with blue shorts and sandals.
As Persian poet Rumi said:
Not a Christian or Jew or Muslim, not Hindu, Buddhist, Sufi or Zen, Not any religion… first, last, outer, inner, only that breath breathing human being.