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.”
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.
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.
Syrian boys, whose family fled their home in Idlib, walk to their tent, at a camp for displaced Syrians, in the village of Atmeh, Syria. Picture: Flickr/ Freedom House
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.
As Pakistan’s interior Minister Rehman Malik calls for the arrest of ex-president and dictator Pervez Musharraf in the musical chairs that is Pakistan’s leadership dramas, regular Pakistanis are switching off — preferring the drama of the screen.
“Humsafar”, a soap opera that translates roughly to “soulmate”, is the latest rage that has captured the Pakistani imagination. Thousands of diaspora Pakistani women crash YouTube every week to get their latest fix of the love triangle between hunky Asher, Khirad and Sarah.
Islamic scholar Amina Wadud has been branded both a heroine and a heretic.
Heroine for her academic framework for Muslims in legal and policy reform around the world; heretic for leading a mixed gender prayer in New York in 2005 which made worldwide headlines.
The prayer session propelled the 58-year-old African American into celebrity Muslim reformer status, a position the theologian does not seem entirely comfortable with.
“I try to keep my sense of humour about it,” she said, speaking in Sydney after engagements in Melbourne and Canberra.
“I didn’t play into it. I didn’t stoke the sensationalism of it.
“The time was a little bit comical but I could not live along those lines. I like the basic parts of my life where you have anonymity.”
Asked if the controversy had obscured her long-time activism and scholarship on Islam and gender issues, she said: “I regret things being obscured for any reason. But I do not regret the prayer if that is reason why people obscure things. People have not been pleased with my work for a long time. So the prayer is just a ruse … and … excuse for not listening to what you have to say.”
Dr Wadud is the author of several books, including Quran and Women: Re-reading the sacred text from a woman’s perspective and Inside Gender Jihad: Women’s reform in Islam.
Her central thesis is that for centuries Islam has been interpreted by male scholars which has obscured its essentially egalitarian ethos. This ethos, Dr Wadud says, has inspired her reform work particularly around Islamic family law.
While her religious detractors accuse her of heresy, other criticisms of Dr Wadud involve the charge that she feeds into the never-ending contestation of religious texts which has no purpose in the modern era within a secular framework. However, her books have worked as a framework for Muslim activists, particularly through lobby groups and her organisation, Sisters in Islam in Malaysia.
One of Dr Wadud’s central ideas is that as a believer she accepts the divinity of the Qur’an, however, its readings must always be open to scrutiny and re-evaluation. This is particularly important if laws are to be based on its precepts and have impact in the real world on women’s lives.
Born in the American South, in Maryland in 1952, to a Methodist preacher father, Dr Wadud converted to Islam at university at the age of 20 after a brief stint as a practicing Buddhist.
“I was a practicing Buddhist for a year,” she said.
“I came across Islam and it grew exponentially and I came to an understanding of the universe that worked for me.”
The liberation theology of the black leaders of the civil rights movement and her own upbringing also influenced her.
“My family situation was one where the relationship between social injustice and faith was explicit. You do not oppress. Oppression is against God’s will,” she said.
“I grew up in the era of black consciousness. I lived in a transformative time as a young person- you could hear and feel you had a certain sense of social responsibility – a mandate to fight to remove injustice as it was being established in the context of our lives as African Americans.
“I was brought up in the revolutionary spirit of justice and it was common sense to transfer that in terms of Islam and gender justice.”
Dr Wadud, a devout and thoughtful woman, finds much of the hype around her work distasteful, so much so that at one point she eschewed the label ‘feminist’ altogether.
“There are obviously large sectors of non-Muslim and Muslim population who think Islamic feminism is an oxymoron,” she said.
“I am less concerned now about whether or not I make everyone comfortable in terms of the self designation (of being feminist) than at another point.”
She said the term ‘feminism’ often led people to dismiss her work.
” … I feel a little bit more comfortable in my own skin being able to say feminist. At another point [I would avoid the label] in order to avoid the politics of the discussion and to avoid the marginalisation of my work into those politics,” Dr Wadud said.
This perceived incompatibility is incongruous with her own study of Islamic thought and philosophical thinking.
“They are limiting feminism from its own intellectual and political history,” she said. “They are also limiting Islam from its own egalitarian trajectory.”
Dr Wadud has found crowd hostility toward her more pointed in Sydney than Melbourne, where the largely Muslim audience seemed much more engaged.
Her lecture this week at the University of Technology, Sydney, involved several heated exchanges with young men.
“Some people in the Australian audiences, they come because they’ve heard there is something wrong or bad or evil about me,” she said.
“They come because they will set me straight. When they get here and I don’t say anything outrageous for them to pick up on – they make up stuff.”
Dr Wadud finds arguments with those who have not even read her ideas tiring and is now focussed on reaching out to those who have.
“In the past I felt a much greater responsibility to be understood by as many people as possible,” she said.
“You spent all your time trying to convert people who are absolutely unconvinced about where you’re going.
“Then there are some people who are trying to understand certain things and have a nominal level of agreement and maybe want to go further and engage with your ideas. That’s a more interesting level to engage.”
There have been rumours of death threats, but Dr Wadud is quick to clear the air.
“I never received any death threats,” she laughs.
“There was this thing where people got into saying I had death threats. But I never had anyone actually threaten me.”
Sarah Malik 