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.”
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.”
Australian human rights groups have raised concerns over a proposed government bill that would allow for the continued detention of “high-risk terrorist” offenders at the end of their sentence.
Under the government’s proposal, a state or territory supreme court will decide if a high-risk offender remains high risk at the end of their sentence.
For a high-risk prisoner to be kept in jail, the court must be satisfied that no other less restrictive measure would be effective in preventing “unacceptable risk” to community safety.
The maximum period for which a continuing detention order can be made is three years and the person must not be detained in the same area as the general prison population .
Human rights groups will present their submissions to an inquiry into the proposed criminal code amendment (high risk terrorist offenders) bill 2016 during hearings in Canberra on Friday.
In one of the written submissions, Prof Ben Saul, Challis chair of international law at the University of Sydney said the scheme violates Australia’s international human rights obligations by characterising continued incarceration as preventative detention.
“Prisons are built for prisoners, not non-prisoners … I am not aware of prison facilities where a person subject to a continuing detention order could be meaningfully separated from, and treated differently than, prisoners,” he said in his statement.
Human Rights Watch said in its submission there was ambiguity around what constituted “high risk”. Terrorism legislation provides for up to 15 years imprisonment for non-violent offences including possessing a “thing”, providing material and resources, or having membership related to a terrorist group.
“Australian law’s overly broad definition of terrorism makes the bill particularly worrisome,” the group said in their submission.
Human Rights Watch said existing laws already provided for control orders that allowed tracking and surveillance of suspects.
The Muslim Legal Network said in its submission the proposed scheme breached human rights obligations by providing for potentially indefinite, arbitrary and punitively retroactive punishment.
Zaahir Edries, president of the Muslim Legal Network, said the measures effectively added a criminal sanction to a prisoner’s sentence without the benefit of a trial.
“Proposing this kind of legislation where there are minimal safeguards and the standards are lowered to prove them poses a dangerous and unacceptable infringement on civil liberties,” he said.
The Lebanese Muslim Association’s submission said the government’s proposed measures were counterproductive and risked creating “martyrs” out of those incarcerated while further alienating Muslim youth.
The office of the attorney general, George Brandis, has been contacted for comment.
I love the beach. I live right near one and as the weather warms up, there is nothing more glorious than walking the golden shores and sinking into the cool water. But it hasn’t always been a comfortable fit. The beach always seemed to be a white people place, like the fictional Home and Away, filled with chiselled blonde bodies, far away from Sydney’s western suburbs where I grew up.
I remember awkward outings as a kid to the coast with waddling Aunties in voluminous shalwar kameez who would lift their loose shalwar to dip a foot in the water before running away to eat pakoras. We ethnics were no good at water things and especially for girls, it was never encouraged. On the other side of the equation, hairless bikini babes only please.
When the Cronulla riots broke out in Australia in 2005 it seemed to confirm the metaphor of the beach as a kind of cultural battleground welcome only to a certain kind of person; the last glorious Anglo frontier against the dreaded Muslims. The riots have been endlessly analysed through the lens of race, with gender in the background. Most of the rioters were young white men going mad in a kind of macho posturing over women and property centred around protecting “our things” (white women, beach) from “them” (the not white, strangely clad interlopers). This in itself reflected a problematic male entitlement that gets to dictate the norms and responds with violence at perceived infringements of power.
Then the ‘burqini’ came along. The burqini was an ingenious Australian invention that facilitated swimming for conservative women who observe Muslim modesty guidelines. Some of my good friends are burqini babes. They are lawyers and academics, mums and corporate executives, some are even swimming instructors.
In 2006, Mecca Laalaa became the first burqini-clad Muslim woman in Australia to become a lifeguard, trailblazing a road for Muslim women to not only participate but own the surf. It reminds me of the last scene in Puberty Blues, a coming of age story of teen girls set in the 1970’s Sydney Shire, when the girls decide to go from being spectator eye candy to grabbing surf boards and diving into the ocean against cries of the astonished boys yelling “chicks don’t surf”.
And it’s not just Muslim women who want to surf in these suits – the exquisite Nigella Lawson once famously sported a burqini for sun protection. For those who want to remain fair and lovely or don’t feel comfortable with the body beautiful display otherwise required on the beach, various forms of the suit gives freedom to frolic with joyous abandon. All good right? Wrong.
A swimsuit that encourages those of all shapes, sizes and backgrounds to participate, have agency and be physically active and comfortable should be a win for all women right? Wrong again.
In France, anyway. The French mayor of Corsica has reportedly become the third in the country to announce a ban on burqinis, following weekend clashes fuelled by a row over the outfit, sparked by a man incensed over a photo taken of one of his party – a burqini clad woman.
The oddly named French Women’s Rights Minister failed to oppose the move, having previously spoken against the “archaic” garment. Now these women who were perhaps even braving the disapproval of the more conservative in their own community will be back to watching from the shoreline. They will be exactly where the right wing French and Muslim fundamentalists like them to be, on the sidelines – all in the name of their freedom and dignity of course.
I’m sure the ban will be a liberating experience for the Minister; because banning things and policing a woman’s access to the public space is always a great celebration of freedom and a good answer to male violence. Vive la France!
Once again, it is women who pay the price and are the pawns used in the cultural battleground between knuckleheaded men and the wider violence of a male dominated state apparatus. An apparatus that echoes the values of those in power, with the faint whiff of former European colonial overlords straining to accord equal status to the subjects they once ruled over.
The message is clear; your belonging here is conditional, engage only our terms or not at all.
The ban is an attack on minority communities, already subject to increased surveillance and harassment, who occupy the very bottom of the social hierarchy; and its most vulnerable members – Muslim women.
Women who not only have to navigate sexism within their communities, but also the brute force of state authorities intent on crushing their autonomy – and rendering the men in their lives humiliated and impotent against these incursions. All for ‘freedom’, in the most Orwellian sense of the word.