asylum · asylum seekers · human rights · law · politics

High Court Asked to Limit Detention of Asylum Seekers in Australia for Care as featured in the New York Times

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.

Conditions in Australia’s offshore camps have been criticized by human rights groups. A recent Amnesty International report likened conditions in Nauru to an “open-air prison.”

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.”

culture · human rights · islamic law · law · Pakistan · politics · religion

Pakistan’s traditional spirituality hijacked?

Every week sees a fresh wave of violence strike Pakistan. Just two days ago, a suicide car bomb in a crowded shopping street in the north-west town of Charsadda killed almost 20 people and injured dozens. It was the third such incident in three days. These follow blasts in Rawalpindi and Peshawar, which killed dozens in crowded marketplaces, the latter of which coincided with US Secretary of State Hillary Clinton’s visit.

The violence has put many Pakistanis on edge, many blaming the country’s relationship with the US. They point to the loss of civilian lives in badly aimed drone attacks and a historical relationship that suggests the US looks after its own interests and should not be trusted.

The Obama Administration finds itself dealing with partners in both Pakistan and Afghanistan who do not have the strong mandate of their people, with Hamid Karzai’s recent win in a one-man election in Afghanistan, and Asif Ali Zardari in Pakistan, who as widow of former prime minister Benazir Bhutto has benefited from a Bhutto stranglehold on the ruling Pakistani People’s Party despite being mired in corruption. The shadowy standing of the two leaders threatens the legitimacy of the partnership.

The current Administration has done well in bypassing the leadership and attempting to reach out to the people through cultural dialogue with frank meetings with media professionals and students. Clinton’s visit wearing a billowing blue dupatta to a Sufi shrine in Islamabad moved many and represents in many ways the true spirit of Pakistani spirituality, which has been hijacked in recent years with the rise of extremism.

In the past 10 years, I have seen a steady shift to the right. The folk spirituality of Pakistan, traditionally involving a mixture of Islamic Sufism and saint worship, has given way to a more puritanical form of Islam, which shuns Shiite Muslims and other minorities. Weddings are increasingly segregated and without the traditional Pakistani music and dance that make them so lively. The dupatta, a deliciously sheer piece of cloth worn with colourful shalwar kameez as part of the traditional dress, have given way to burqas and niqabs in certain areas.

The contradictions that lie at Pakistan’s fractured soul are emblematic of its very origin. Pakistan’s founder, Mohammad Ali Jinnah, a secularist and English-trained lawyer, initially used religion as nationalistic rallying cry and political tool for the creation of Pakistan. This backfired badly with Pakistan fighting for its national identity ever since. The question being if Pakistan was created in 1947 as a homeland for the subcontinent’s Muslims than why should it not also be an Islamic State? The historical Jinnah in Pakistan has been transmogrified into a pious, sherwani wearing “Quad-e Azam” or “Great leader”. This image is a far cry from the man found in the Jinnah museum in Karachi who was fond of his suits and cigars.

This is symptomatic of unease with which Pakistan has dealt with the religious question. It seems it does not have the ideological courage to be either an Iran or Turkey but will settle for being both and something in between.

The majority of Pakistanis are moderate, this can be seen in elections where Islamist parties have consistently received a small minority of the vote. If ideologically speaking, Pakistanis are scattered, the building of institutions will be a bulwark against excesses. The lack of education, health, literacy and poor state of women’s rights have put Pakistan at the risk of a kind of national myopia.

Democracy depends as much on the healthy state of an informed public as a free election. The rise of the lawyer’s movement, which protested against former military dictator Pervez Musharraf ‘s move to force out Supreme Court justice Iftikhar Mohammed Chaudhry in 2007, to the creation of community run police-citizen patrols to deal with law and order issues show that the Pakistani people have developed ingenuity to deal with its social problems despite an ineffectual state apparatus. A government whose only occupation seems to be to repeatedly fund and create militant groups it quickly loses control over and an obsessive rivalry with neighbour India.

Pakistanis can only dream of the possibilities of not struggling under the weight of this monstrous disability.

divorce · injustice · islamic law · law · muslim women · struggle

Living in Limbo Land

A never-published investigative feature where I explore the problems faced by Muslim women in gaining an Islamic divorce in Australia and the anguished limbo status these women face in getting their rights recognised by a legal system which ignores their cultural and religious concerns.


Nuzhat’s Story

Nuzhat Mukhtar* sits on the lounge of her Sydney flat gesturing for me to eat. Her twenty- one year old son Junaid walks to the kitchen and brings out a smorgasboard of dishes- Turkish pizza, profiteroles with cream, cherry topped cake, three bottles of soft drink, as well as plates and glasses.

She won’t talk until I eat at least one gargantuan slice of Turkish pizza.

Her son sits beside her supportively his somber face creased with worry.

Nuzhat was eighteen years old when she came to Australia as a new bride from Pakistan in 1982. Within three months she knew there was something drastically wrong with the marriage.

“The place I came from was a medium type of family and here where I come was very strict. At home there was no TV, no radio, no bed, no nothing. I was not even allowed to go on the balcony without covering myself completely. Everything was changed for me so much…. But I tried,” recalls Nuzhat.

The fact that she was unable to communicate or seek help from anyone in her new country was particularly difficult.

“In couple of months it was so bad that I was really badly homesick. And I was losing weight heaps, within 3 months time I was thirty- seven kilos. I could not say anything to anybody . Hardly anybody here was Pakistani and could speak my same language,” says Nuzhat.

This reality for women stuck between two different cultural systems is not uncommon. Many women cope with the abuse in silence, reluctant to seek help or advice. The situation is heightened when religious considerations come into play, changing the dynamics of marriage and divorce proceedings.

Continue reading “Living in Limbo Land”