The High Court will today determine the fate of pregnant mother Ranjini and 50 other refugees deemed security threats by ASIO. MY feelings are dead. I have my body and my soul only. All my parts of the body are now stopped working properly. Hearing, looking, tasting and all the feelings are gone and I am living without anything. So says Arjuna. Arjuna writes to stay sane, but feels like he is losing the battle. He survives on a diet of sleeping tablets and tries to keep thoughts of self-harm at bay by thinking of the wife and child he was forced to leave behind in Sri Lanka.
He wrote the words above on the eve of a court decision that will determine his fate and that of more than 50 asylum seekers, most of them Tamils like himself who have been found to be refugees but face the prospect of a life without liberty. They are owed Australia’s protection under international law, but have been deemed threats to national security by the Australian Security Intelligence Organisation. This afternoon, the High Court will hand down its decision on a challenge by Arjuna to ASIO’s refusal to spell out why they say he is a security threat, and the Gillard government’s decision to detain him indefinitely.
Arjuna (not his real name) is 36 and has been in detention in Australia for three years. The others are being held in detention centres as remote as Port Augusta in South Australia, and in Broadmeadows, Maribyrnong and Sydney. They include Ranjini, the pregnant mother of two young boys, and two other family groups with small children.
Arjuna fled his homeland in 2006 and registered his name with the United Nations’ refugee agency in Indonesia in July, 2009. After four months of inaction, he paid a people smuggler to take him by boat to Christmas Island and, with 80 others, was taken on board a customs vessel, the Oceanic Viking, on October 18 after the boat was intercepted. When the Oceanic Viking took them to an Indonesian port, the asylum seekers refused to disembark and a month-long stand-off ended only after a commitment that those found to be refugees would be resettled within another month.
Arjuna arrived on Christmas Island at 11.10pm on December 29 on a special-purpose visa that expired at midnight. For just 50 minutes, he had a lawful right to be in this country. Since one minute after midnight, he has been in detention. Although it was recognised that he had a well-founded fear of persecution if he returned to Sri Lanka, he – and at least seven others from the Oceanic Viking – was refused a protection visa on character grounds because ASIO had issued an adverse security assessment.
During the High Court hearing in June, Arjuna’s counsel, Richard Niall SC, argued that his case was different from that of stateless Palestinian Ahmed al-Kateb, who failed in a bid to challenge his indefinite detention in 2004. In that case, the court held by a four-to-three majority that the indefinite detention of non-citizens was not invalid and should continue until they were removed from Australia or granted a visa. Niall maintained Arjuna’s challenge rested on three ”limbs” – that he was being held illegally because there was no chance of another country taking him; that the al-Kateb decision should be overturned; and that ASIO had denied him procedural fairness by not putting specific allegations to him. Unlike the stateless al-Kateb, Arjuna was owed protection under Australia’s obligations to the refugee convention, Niall told the court. He also argued that Australia’s detention regime had changed since the al-Kateb case and ”it is no longer correct to say that everyone is detained”.
The current regime gave the Immigration Minister the ability to end detention, so that those without visas could live in the community, he argued. ”The minister is only constrained by what he or she thinks is in the public interest to determine effectively when immigration detention will come to an end and the person can effectively live within the community, subject to the conditions that might be imposed.’
In response, the government’s counsel, Stephen Donaghue, SC, maintained Arjuna’s continued detention was justified because it was too early to conclude that no other country would take him, even though seven countries had so far rebuffed approaches and the United Nations has refused to assist. Donaghue also maintained there were no grounds to reopen the al-Kateb decision and argued that ASIO had ”comfortably cleared” the requirements of procedural fairness. He told the court it was ”utterly pointless” for ASIO to question Arjuna on whether he still supported the resistance movement in Sri Lanka because he had told ASIO he had been forced to become a member of the movement before fleeing the country.
”It would have really been, we submit, a farcical exercise.”
Donaghue said Arjuna could have explained why he was not a security threat in an interview when he was asked in general terms about his involvement with the Tamil resistance, known as the LTTE. He also maintained that Australia’s protection obligations under the refugee convention did not require the refugee to live and work in the community.
If the court agrees that Arjuna’s detention is not lawful, all of those who are being held because of adverse assessments by ASIO will have a case for being released. If the challenge fails, the issue will remain unresolved but will still demand a policy response from the government. Attorney-General Nicola Roxon says she has been working through a range of options in response to a resolution at last year’s ALP national conference and the report of a parliamentary committee, but declines to be more specific. The resolution, moved by Fremantle MP Melissa Parke, required the National Security Legislation Monitor to be asked to advise on establishing a mechanism so that adverse assessments could be reviewed in a way that protected ”intelligence sources and methodology”. The monitor was established in 2010 to regularly review and report on the ”operation, effectiveness and implications” of Australia’s counter-terrorism and national security legislation. A year later, eminent Sydney lawyer Bret Walker, SC, was assigned the monitoring task, which did not extend to ASIO’s powers to issue adverse security assessments. Then, in March, a majority of a Labor-chaired parliamentary committee recommended that the government find a way to review negative decisions and to allow appeals – and explore alternatives to indefinite detention. Coalition members of the committee disagreed. ”I’m not trying to jeopardise national security, but I do not accept the argument that there is not one person in the whole of Australia who can adequately review an assessment of ASIO when someone’s liberty is deprived,” the chairman of the committee, lawyer Daryl Melham, remarked at the time. While Roxon says Walker was not asked to advise on a review mechanism, she has told The Age she has been getting advice from her department and ”other interested agencies” on how a review might operate.
Greens senator Sarah Hanson-Young, the deputy chair of the committee, argues the response needs to go further, saying that alternatives to detention should be considered for those still deemed security risks after their cases are reviewed. Hanson-Young also maintains that periodic reviews of adverse assessments should be undertaken to determine whether people are still considered threats. After all, the criminal justice system recognises the importance of rehabilitation. But the most immediate concern of Hanson-Young and refugee advocates is the mental health of those in detention, who are already suffering from depression. Among them is Ranjini, another Sri Lankan whose first husband was a fighter with the Tamil Tigers who was killed during the civil war. Ranjini discovered she was pregnant two days after being told in May that she was a security threat and whisked away with her two sons from her husband, Ganesh, in Melbourne to the Villawood detention centre in Sydney.
Ranjini arrived on Christmas Island in 2010, and was transferred to the Leonora detention centre south-east of Derby in Western Australia before moving to the Inverbrackie centre in the Adelaide Hills and finally into community detention in Brisbane in April last year. While she was in Brisbane she was visited by Ganesh, a Tamil who came to Australia in 2004. They married in April after moving to Melbourne and being told by government officials there was no barrier to their union.
Those who have become close to Ranjini since her arrival in Australia describe her as a loving, caring, gentle person who has endured great trauma, but those who have visited her at Villawood have been struck by her deterioration since her return to detention. Nathalie Klapper, who befriendedRanjini last year, has made three trips from Brisbane with her husband and says she is distressed by the ”incredible level of depression” among all of those with adverse ASIO assessments, particularly Ranjini ”It has been so sad, so tragic, to see Ranjini’s boys changing – and they are changing,” Klapper says.
”There’s this pent-up anger and resentment. The feel it, they know it.”
In a letter to Immigration Minister Chris Bowen, Klapper wrote that Ranjini’s older son, who is eight, was teary, easily upset and quickly aggressive. ”He was not like this before. He is not coping with the stress levels of living in detention.”
Ranjini’s distress is compounded because she cannot have any private contact with her husband. Because all visits are supervised, and because their culture discourages displays of affection in public, they have not even had a hug since her arrival at Villawood. She has told visitors she wakes up every night with the same nightmare – revisiting a bomb blast she witnessed in Sri Lanka where dozens died and families retrieve the body parts of loved ones. She is also fretting about her sons.
Hanson-Young visited Villawood yesterday and says all of those with adverse assessments are extremely anxious about today’s decision. ”The real concern is that if it is not a decision that gives these people some relief, what next? ”The awful thing is that these are people we have already assessed as having been to hell and back. They’re refugees and we are just further entrenching their trauma,” Hanson-Young says.
Ranjini is represented by David Manne, the lawyer who launched the legal challenge on Arjuna’s behalf and who last year successfully challenged the government’s Malaysia people-swap in the High Court. ”Our client is not asking the court for anything radical or unusual,” Manne told The Age when he launched the action.”Instead, he’s asking the court to question whether the ordinary checks and balances under our legal system should apply to him – such as knowing the case against you, being able to challenge it under due process and having independent scrutiny of that process. We also say it’s unlawful to lock up a refugee indefinitely, possibly forever.”
Arjuna expresses his hope even more succinctly in a hand-written reflection written in the last 48 hours that extends for four pages. ”We are all waiting for a good judgment and hoping for a good judgment.”
—-2009d “Crude reasoning,” 17 November 2009, http://www.abc.net.au/unleashed/stories/s2736651.htm
—-2009e “Speaking from Ignorance: Australians on Sri Lanka & Its Boat People,” 4 December 2009, https://thuppahi.wordpress.com/2009/12/04/speaking-from-ignorance-australians-on-sri-lanka-its-boat-people/
—-2010a “Boat People as Blanket Categories,” 19 April 2010, http://asiapacific.anu.edu.au/blogs/southasiamasala/2010/04/19/boat-people-as-blanket-categories/8
—-2010b “Aussies swallow Lies and Rajapaksas miss a Trick,” 31 Oct. 2010, https://thuppahi.wordpress.com/2010/10/31/aussies-swallow-lies-rajapakses-miss-a-trick/
—-2010c “From “Leaky Wooden Boats” to the Imbecile Asian,” 27 December 2010 = https://thuppahi.wordpress.com/2010/12/27/from-%E2%80%9Cleaky-wooden-boats%E2%80%9D-to-the-imbecile-asian-2/
—-2010d “Missing the Boat: Australians at Sea on Asylum-Seekers,” 19 October 2011, https://thuppahi.wordpress.com/2011/10/19/missing-the-boat-australians-at-sea-on-asylum-seekers/
—-2010e “Mahesh Pushpakumara: the saga of the marooned fisherman,” 20 November 2010, https://thuppahi.wordpress.com/2010/11/20/mahesh-pushpakumara-the-saga-of-the-marooned-fisherman/
2012 “Boat People to Australia: A Comment on The Social Architects’ Survey and Twist on the Tale,” 24 July 2012, https://thuppahi.wordpress.com/2012/07/24/boat-people-to-australia-a-comment-on-the-social-architects-survey-and-twist-on-the-tale/.
—- 2012 “Australian Gullibility: forgeries, lies and manipulation in the netherworld of in-migration,” 26 July 2012,https://thuppahi.wordpress.com/2012/07/26/australian-gullibility-forgeries-lies-and-manipulation-in-the-netherworld-of-in-migration/
—- 2012 “Amanda Hodge adds twist to Dayan Anthony’s tale,” 28 July 2012, https://thuppahi.wordpress.com/2012/07/28/6405/
— 2012 “Deported from Britain: back to ‘duress’ or ordinariness in Sri Lanka?” 11 August 2011, https://thuppahi.wordpress.com/2012/08/11/deported-from-britain-back-to-duress-or-ordinariness-in-sri-lanka/