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Unsolicited: Locked up in limbo

Every Issue

Cite as: Cite as: March 2012 86 (03) LIJ, p.8

Yesterday evening, some 50 people in Australia went to sleep not knowing whether they will ever be released from immigration detention. These people have committed no crime. They have spent more than a year in detention seeking to demonstrate that they are genuine refugees. At the end of that process, they have been found to be genuine refugees. That is, their case that they would be persecuted if they returned to the country from which they fled has been accepted.

They had the fair and legal expectation that they would then be released so as to pursue new lives either in Australia or some third country that would accept them for resettlement. They are still locked up.

This is because, after having been determined to be genuine refugees, these 50 individuals received adverse security assessments from the Australian Security and Intelligence Organisation (ASIO). Those with such an assessment must be detained, normally pending their deportation.

They have an entitlement to appeal to the commonwealth Administrative Appeals Tribunal against their continuing detention. But they cannot win. This is because refugees who are assessed adversely by ASIO are not, in law, permitted to know the evidence on the basis of which the assessment was made nor are they permitted to know the reasons for it.

The considerations that guide the process of adversely assessing a person are not found in the ASIO Act. They are found in regulations made under the Act. But the regulations are not made publicly available. Adverse assessments, therefore, are made by reference to secret criteria applied to secret evidence. We know only that a person may be adjudged as a risk if that judgment is “consistent with the requirements of security”.

On appeal, therefore, these people are flailing in the dark. They have absolutely no idea of the case that is made against them. Under National Security Information legislation, the federal government may require that security related evidence be withheld from an applicant. It may also require that the evidence be withheld from the applicant’s legal representatives. Similarly, judicial review is impractical because the courts cannot order the production of material on which adverse assessment decisions have been made.

There is little or no prospect that a third country will accept any such person for resettlement, given that a person has been determined to be a security risk. That is why detention may be indefinite, perhaps for life.

In a very real sense, this is Kafkaesque. The first priority of the new Attorney-General should be to make ASIO assessments reviewable, of course with appropriate protection for sensitive intelligence information. Otherwise, these detainees’ treatment in Australia resembles the persecution from which they fled in the first place.

Professor Spencer Zifcak, President, Liberty Victoria

For providing the letter of the month Spencer Zifcak has won a $75 book voucher from the LIV bookshop, redeemable for the next 12 months.

Support welcomed

On 1 July 2011, I opened my own family law practice in the south-eastern suburbs. Since opening the practice, I have been happily surprised by the genuine and heartfelt encouragement and support I have received not only from friends and colleagues within the profession, but also from a number of practitioners, who I do not know personally, who have taken the time to call to congratulate me and let me know they are available if I need any assistance.

As a young sole practitioner, I feel proud to be a member of a profession that encourages its newer practitioners (rather than viewing them as competition) and would like to extend my sincere thanks to all who have helped (or offered to help) me with my new practice.

Prue Burrell, Accredited family law specialist, Burrell Family Law

We welcome letters to the editor of no more than 400 words. Email: Fax: 9607 9451 Mail: LIJ, Managing Editor Mick Paskos, GPO Box 263, Melbourne 3001; or DX 350 Melbourne. We reserve the right to edit letters and to republish them in their original or edited form on the internet or in other media. Letters must include a phone number and address for authentication.


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