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.
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.