Detention for life, without reasons
A recent decision in the Federal Court highlights a problem which has been brewing for some time: the possibility that some boat people will face detention for life without being told why.
The difficulty arises this way. A number of asylum seekers have received adverse security assessments from ASIO. The criteria for adverse assessments are incredibly wide, including that a person might represent a risk to the security some other country. If a person is adversely assessed by ASIO, they will automatically be refused a protection visa, despite having been assessed as refugees.
This creates a problem which is the result of three separate lines of legal authority.
First: in 2004 the High Court decided the case of Ahmed al Kateb. It held that a person who had been refused a visa but could not be removed from Australia could be held in detention forever. Al Kateb could not be removed from Australia because he was stateless.
Second: in 2011 a judge of the Federal Court decided a case in which two Iraqui refugees had been adversely assessed by ASIO. They swore that they had never done anything which could bring them within the reach of the various statutes concerning security. They were not challenged. The government argued that the court did not know why ASIO had decided to adversely assess the men, and therefore could not overturn the decision. The judge agreed. The effect of this decision is that, in a practical sense, it is impossible to challenge an adverse assessment by ASIO.
Third: a person who has been assessed as a refugee cannot be returned to their country of origin. This is because the central obligation in the Refugees Convention is the obligation not to return a refugee to a place of possible persecution (the obligation of non-refoulement).
The net result of these rules is that a person who is accepted as a refugee, but is adversely assessed by ASIO, will be refused a visa but cannot be removed from Australia, and cannot challenge the adverse assessment. If this sounds like a nightmare, it is in fact happening already. On 16 December the Federal Court had to deal with the case of a boy, now aged 17, who has been in detention since he was 15 years old. He is alone in Australia. In December 2011 he was adversely assessed by ASIO. He can’t be sent back to his own country, because he faces persecution there. He can’t be sent anywhere else, unless Australia persuades some other country to take him off our hands. As the judge said: “The applicant will (thus) be a minor, in immigration detention, indefinitely and until he can be deported. That may be a very long time.”
The case raises three questions we should face squarely. The way we answer these questions will define what we are as a country:
At present, Australian law allows a child to be imprisoned (potentially for life) without having broken the law and without being able to challenge the reason for their imprisonment. He is being driven mad by the prospect of being held for life. He has already cut himself many times, and has tried to hang himself. It is a scandal that our law allows this.