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.”
Human rights groups have condemned the continued incarceration of Egyptian asylum seeker Sayed Abdellatif after a Guardian Australia investigation revealed the United Nations had formally told the Australian government he should be immediately released.
Falsely condemned as a terrorist by political leaders, Abdellatif, his wife and six children have been held in detention for more than three years without charge.
In the first of a three-part series, the Guardian on Monday revealed the UN Human Rights Council in June ruled Abdellatif’s detention breached international law, was indefinite and arbitrary, and directed Australia to release him and compensate him for his wrongful detention.
The series also revealed the struggles of Abdellatif’s two eldest daughters, the first students to graduate from high school while incarcerated at Sydney’s Villawood detention centre, as well as detailing the torture inflicted on Abdellatif by Egypt’s State Security Investigation Service (SSI) under former dictator Hosni Mubarak, which forced him to flee his homeland in 1992.
Amnesty refugee campaigns spokesman Graeme McGregor said government intransigence around Abdellatif’s case was a result of the negative publicity the story had generated.
“It’s outrageous that these children are being denied the opportunity to have a normal adolescence with their father,” he said. “It’s hard not to believe the only reason Mr Abdellatif is trapped in detention is because of the political embarrassment that surrounds the case.
“We often lose sight of the fact a family that came to Australia to build their life have been denied that opportunity.”
The vice-president of the Muslim Legal Network, Rabea Khan, also criticised the family’s continued detention despite an assessment from the inspector-general of intelligence and security that made clear Abdellatif poses no threat to Australia’s national security. The inspector-general also criticised the government’s handling of Abdellatif’s case.
“It’s disturbing that the Australian government continues to sit on its hands instead of going ahead and releasing this man from detention,” Khan said.
“This is yet another example of the government playing political football with the plight of refugees.”
In 1999, seven years after he left Egypt, Abdellatif was convicted in absentia in a mass show trial of 107 men in Cairo. The trial was condemned as unfair byAmnesty and Human Rights Watch. It has also since been discredited in his home country as a politically motivated suppression of Islamic political opposition.
Refugee Action Coalition spokesman Ian Rintoul said Australian authorities had used the red notice as an excuse for not processing Abdellatif.
“All the evidence points that the red notice was placed there wrongly by the Egyptian government as a politically motivated [tool] to victimise Sayed,” Rintoul said.
Rintoul said all the evidence showed the family should not be in detention.
“The degree the government has caused Sayed and his family to suffer cannot be overstated,” he said.
“They have been forced to deal with humiliation inside detention and the girls at school – and for no reason other than the government would not face up to the fact that they made a terrible mistake in keeping them in detention in the first place.”
Human Rights Law Centre legal advocacy director Daniel Webb said Australia’s detention regime made detaining people a first resort, and vested extraordinary powers over people’s lives in the position of immigration minister.
“Giving relatively unchecked powers over peoples’ basic rights to one politician is a recipe for injustice,” he said.
“The result is a nightmare for the people – like Sayed’s family – who get caught up in the system, locked up with no appeal rights, not knowing if or when they’ll ever be released.”
The government has maintained a resolute silence on Abdellatif’s case, despite being offered several opportunities to comment.
Guardian Australia has repeatedly approached the government for a response.
For the latest series, Guardian Australia first provided written questions to the immigration department on 22 October. After initially agreeing to provide answers by 30 October, a department spokesman has since refused to answer any questions and directed all queries to the office of the minister, Peter Dutton.
Dutton’s office has not responded to any inquiries.
The contest to arrive at the Year 12 formal in the most spectacular “wheels” is happily embraced by students at high schools across Australia.
For Sayed Abdellatif’s two eldest daughters, it was no contest at all.
The girls arrived at their school formal in a car driven by their very own Serco guards, “like minor royalty”, as the running joke among classmates went.
“Nothing,” the older Abdellatif daughter says, “could be further from the truth”.
“The formal was a struggle,” she says. Special permission was required, strict conditions and curfews imposed; celebrations held under the watchful eye of the omnipresent security detail.
But at least they were allowed to go. “Simple things that are normal for everyone to do, for us it is a struggle.”
The girls are the first students to graduate from high school while incarcerated at Villawood detention centre, a remarkable achievement for two young women who have spent their childhood in the shadowlands of societies all over the world, or held in immigration detention.
The local New South Wales government school they attended, each day under the gaze of their guards, was the first they had ever set foot in in their lives.
For the two eldest Abdellatif daughters – whom Guardian Australia has chosen not to name or photograph because of their age – school was a dream, a chance at a future, and an escape from a fractured past in which they had known neither peace nor stability.
“It made me angry to see kids who had everything … but they didn’t appreciate it,” the older daughter says. “But it was really challenging, especially learning a whole new language and studying in that language.”
The girls’ HSC results will arrive imminently, but any hopes of furthering their education at university have been dashed.
The eldest daughter says she put in a request, through the immigration department, to go to university. “But immigration said ‘no, you can’t go to university, it’s a personal choice’ [the request is outside the department’s remit]”.
You have no freedom. Your life is on hold. The more you think about it the more powerless you feel.
Elder Abdellatif daughter
The girls are in Villawood because their father, 44-year-old Egyptian national Sayed Abdellatif, is being held in indefinite detention on a historical Interpol red notice issued in his name, dating from a 1999 mass show trial of 107 men in Cairo. The trial has since been discredited as politically motivated and based on evidence obtained by torture.
A Guardian investigation in 2013 found the major convictions made against Abdellatif – in absentia – were erroneous, and that the allegations were never even made against him in court. That investigation led Interpol to take the extraordinary step of removing those charges from the red notice.
The remaining lesser offences, of membership in a terrorist group (Egyptian Islamic Jihad) and providing forged travel documents, were secured using evidence obtained by torture, court documents show. Abdellatif denies the allegations.
Abdellatif, his wife and six children, the youngest of whom is five, have been in immigration detention in Australia since 2012.
In 2014, the immigration department recommended to the minister that Abdellatif be granted a visa and released into the community; in the same year, an assessment by the inspector general of intelligence and security made clear he was not a danger to national security; and in June this year, the United Nations said his detention was illegal, indefinite and arbitrary, and directed Australia to release Abdellatif and compensate him for his wrongful detention.
However, while Abdellatif and his family have been allowed to submit paperwork in application for visas, there has been no known movement towards releasing them.
Despite repeated questioning from Guardian Australia over several months, the immigration department has consistently refused to comment on his case.
Abdellatif’s wife and six children have been offered community detention, but they have refused to leave Villawood without their father and husband, fearful he will never be released.
They will endure detention together until it is over, they say, with all of its indignities and deprivations.
Sayed Abdellatif cannot leave Villawood.
For his family, every move outside of its high steel fences – to school, to buy groceries, to doctors’ appointments – is made under the conspicuous escort of Serco guards.
This includes their daily visits through rings of security to see Sayed, housed in a separate high-security compound in Villawood.
The eldest daughter says the stress of separation, and the ongoing uncertainty over their futures, has cast a dark shadow over their school year.
She says she almost had a breakdown in the middle of her HSC trials.
“It’s like a rollercoaster. You pretend that everything is OK. Other days you lose it [and] just cry and scream.”
The girls say they can feel their family fracturing under the stress of their detention. Tempers flare often, and sometimes the children scream at each other, or sullenly retreat to their rooms.
“It’s just hard when everyone is in the same situation. [If] one of the family is feeling down, the whole family will follow,” the older daughter says.
The family survives by making jokes to lighten the burden but it doesn’t change the grim reality of a life in limbo.
“We make fun of everything. If you can’t really change it, then no point crying over it. But detention is still detention.”
The contrast between the relative normality of school – notwithstanding the ever-present security detail – and the capriciousness of secure detention is a daily struggle.
“It’s like you have two lives. When you come here [back to the compound] it’s like you are a different person.”
Motivation for school was often difficult to summon, the older daughter says.
“I always thought ‘don’t give up because it will pay off’. But some days I think ‘if it doesn’t get resolved, what’s the point of studying?’. ”
And studying in a detention centre was difficult: the girls had only sporadic access to a computer or printers.
The handful of desktop computers that sit in the communal area of Villawood’s family compound – among the young children running noisily amok and the ceaseless blare of televisions – are shared among dozens of detainees, and heavily restricted.
The younger daughter, who studied economics, says some websites she needed for her schoolwork were blocked, including her student emails that allowed her to access her marks and notes from teachers.
“It’s like a rollercoaster. You pretend that everything is OK. Other days you lose it [and] just cry and scream.”
“All economics websites are blocked. The RBA and the Australian banks are all blocked. That was very frustrating,” she says.
But school was an escape from those frustrations too, a release from the suffocating pressures of life in detention, and the uncertainties beyond. The two sisters say that often they found solace in schoolwork.
The Abdellatif family’s proudest moment this year was the girls’ graduation ceremony. But the occasion was bittersweet: the immigration department refused to allow Sayed Abdellatif to attend.
“Since my daughters were young, I’ve always dreamed of seeing them wearing graduation gowns,” Abdellatif told Guardian Australia from detention. “I’m very proud of my daughters for their achievements, but I was also so disappointed that I was denied [permission] to join my family to see my girls graduate.”
The girls’ exhilaration at graduating has been tempered by the uncertainty around their future. Even after their HSC, the sisters have been regularly returning to school, seeking the routine and stability it provides.
They dream of going to university next year. The younger one knows already that she wants to be a lawyer.
But their continuing detention makes that an impossibility.
The young women watch their friends make plans for the future: for study, for travel and adventure.
“It’s like you can’t do anything with your life. You can’t plan your life and what you want because someone is controlling it,” the older daughter says.
“You have no freedom. Your life is on hold. The more you think about it the more powerless you feel.”
The sensation remains with him: the pain of the pliers biting into his skin, and the smell of his own flesh burning.
It is Egypt, 1991.
Sayed Abdellatif is in a building, somewhere – he does not know where – in Cairo, in the custody of the feared state security investigations service (SSIS), the principal security and intelligence agency of the dictator Hosni Mubarak’s regime.
A few hours earlier, the devout 19-year-old had been praying in a mosque when it was raided by members of the SSIS. Everyone inside was arrested, even the children.
Now, sitting in a cell with 15 or 20 other men, Abdellatif does not know why was he was arrested, with what – if anything – he will be charged, or when he might be released.
At regular intervals guards walk into the cell. They blindfold a prisoner, and lead him away.
Finally it is Abdellatif’s turn. Bound, and in the arms of guards, he is taken away to be tortured.
In an interview years later with Australian immigration authorities, Abdellatif is able to recall the methods of torture with chilling detail: “They would tie your hands behind your head and dangle you from a bar. They would use lit cigarettes against your body to put the cigarette out against your skin.”
Through the blindfold he could feel heated metal tools being used to burn his hands.
“This part of my thumb [there] was like a plier where they heat it up and pinch the skin, and they put cigarettes [sic] out on my legs.”
Each interrogation runs for several hours. The time between is spent in the holding cell waiting, wondering when your time will come again.
Most of the interrogations happen at night, Abdellatif says.
“They would put you in a room and fill it with water, about a foot of water, and so you couldn’t sleep, and leave you there, and put live electricity into the water.”
Hours become days become weeks. After two months, without warning, Abdellatif is released back on to the streets of Cairo.
But his arrest is only the beginning.
His life is about to descend into a haze of repeated arrests, detention, torture and ultimately exile.
Twice more, Sayed is arrested by the same security forces. He is held for three months each time.
In 1992, he flees Egypt.
TWENTY-THREE years later, Sayed Abdellatif sits in the noisy visitors hall of the high-security wing of Sydney’s Villawood detention centre.
Seated at a table near the middle of the room, he says a quiet “Hello” to a few fellow detainees who walk past.
But many he doesn’t know. They are just passing through, he says, here for a few weeks before they are moved somewhere else. He is here forever, he fears.
Abdellatif faces indefinite detention despite being found to have a prima facie claim to refugee status – he is a person Australia is obliged to protect – and an assessment from the inspector-general of intelligence and security that made clear he poses no threat to Australia’s national security.
Having fled Egypt in 1992, Abdellatif lived in exile across the world, at the fringes of the societies where he sought safety and security. He moved from Albania to the UK, Iran, and through Indonesia and Malaysia before finally reaching Australia in May 2012. Along the way he married and had six children: four daughters, followed by two sons.
The Abdellatifs’ claim for protection began unremarkably enough. After a series of interviews and corroborations of his evidence, Australian authorities found Abdellatif and his family to have a prima facie claim to refugee status: that is, they have a well-founded fear of persecution in their homeland.
But when authorities also uncovered a historical – and flawed – Egyptian conviction against Abdellatif, his case is suddenly transformed into a political lightning rod for national security, with the Abbott-led Coalition, then in opposition, using the case to lambast the Gillard government’s handling of border security.
Labelling Abdellatif a “pool fence terrorist”, Abbott accused the government of failing to notice that a “convicted jihadist terrorist was kept for almost 12 months behind a pool fence”.
In 1999, seven years after he left Egypt, Abdellatif had been convicted in absentia in a mass show trial of 107 men in Cairo, a trial that was condemned as unfair by Amnesty and Human Rights Watch, and has since been discredited in his home country as a politically motivated suppression of Islamic opposition.
A Guardian Australia investigation into the trial uncovered further serious irregularities, finding that the three most serious convictions on the Interpol notice were entirely false, and that the crimes had never even been alleged against Abdellatif in his trial.
That investigation resulted in Interpol dropping all convictions for violence against him.
Further court documents later uncovered by Guardian Australia – and which have been provided to Australian authorities – showed that the admissions used to convict Abdellatif on other charges, of membership of an extremist group and using forged documents, were obtained under torture. Abdellatif has denied these charges.
In 2014 Australian immigration department officers recommended to the then immigration minister, Scott Morrison, that Abdellatif and his family should be granted visas and released into the community. That was rejected by the minister.
In June this year the United Nations human rights council found Abdellatif’s detention was “illegal”, “arbitrary” and “indefinite”, and directed Australia to release the family and provide compensation for their wrongful detention.
The current immigration minister, Peter Dutton, has allowed Abdellatif to apply for a temporary protection visa, but his application has been stalled for more than five months, without any progress towards ending the family’s continued detention and separation.
Now, further documents obtained by Guardian Australia show the department has been told consistently over three years that Abdellatif’s mental health, and that of his family, is being harmed by his continued and indefinite high-security detention.
In confidential reports and his immigration entry interview, Abdellatif detailed to Australian authorities the full extent of his experience under Mubarak’s dictatorship.
He told immigration officials he does not know why he was targeted.
“I was 19 years old, a time when your [sic] thinking about your future. The only crime I committed was being in the mosque at that time.”
Mubarak’s military regime was ousted after three decades during Egypt’s 2011 revolution. His secular regime was widely condemned by human rights groups for brutal crackdowns on anyone seen to be part of the country’s Islamic opposition.
“Under the martial laws, the state security would come and arrest a group of people to show they were doing their job,” Abdellatif said.
“It starts as a random thing, then they start a file for you and then arrests will be regular.”
The inspector-general’s report found Abdellatif did not attempt to conceal or lie about his identity or past to Australian authorities at any time.
While in detention in Australia, Abdellatif was examined by a psychologist from the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS).
A psychologist’s report from his detention in the UK also found the marks on Abdellatif’s body were consistent with a victim of torture.
It’s like a dark cloud. It’s frightening. Something grips my heart, it’s difficult to breathe
“He has one scar on his body that is typical of a cigarette burn, and others that are consistent with his story,” the psychologist said.
But his history of torture has left Abdellatif with not only physical scars, but psychological ones: injury compounded by his continuing detention.
“Symptoms have been further exacerbated by the fact that Mr Abdellatif remains in an environment he perceives as punitive and unsafe without a foreseeable resolution,” the STARTTS report told immigration department authorities in its assessment of Abdellatif’s psychological condition.
In detention, Abdellatif suffers nightmares, flashbacks, headaches, panic attacks and uncontrollable shaking. He has been diagnosed with post-traumatic stress disorder, anxiety, and depression.
“It’s like a dark cloud. It’s frightening. Something grips my heart, it’s difficult to breathe,” he told one psychologist.
In detention, Abdellatif feels powerless and unable to protect those who are closest to him, an anxiety most acute around his youngest son. The five-year-old has spent his entire life in detention.
“Mr Abdellatif feels that he is not able to completely fulfil his role and responsibilities as a father of his family while he lives away from them, and that he is not able to offer his protection,” the STARTTS report says.
Separation from his family compounds his sense of loneliness and isolation.
“Mr Abdellatif’s experiences have significantly been exacerbated as a result of the extended duration of his detention and the separation from his family.”
The report finds Abdellatif’s health is being harmed by his detention.
“He would benefit from being released into the community with his family, in order to prevent further deterioration of his health.
“Providing a resolution to Mr Abellatif’s immigration status and ending his indefinite detention appears to be a vital precondition to his recovery.”
Internal departmental emails indicate the Abdellatif children are also affected by their father’s – and their own – detention.
A psychologist’s email reported to department staff that one Abdellatif son was “withdrawn” and “highly anxious about his father’s welfare” after Abdellatif was removed to higher-security detention.
The psychologist recommended: “In order to prevent further deteriorating of [his] mental state, his father[should] be united with his family.”
In May Abdellatif and his family were offered hope with the possibility of a temporary protection visa. “It was like light coming into a dark world”, he told Guardian Australia during one visit at Villawood.
But his hope is tinged with the uncertainty and despair of a limitless detention, a waiting game that could be ended in weeks, but may take months or years.
“I feel like I’ve become a file and this file has been thrown away,” he told a psychologist in detention.
“They say, ‘We know you’re innocent,’ but we still keep you in detention.”
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.