One of the main barriers for refugees seeking asylum and residency in Australia is ASIO’s security assessments. These are conducted on an arbitrary basis, with very little recourse for refugees to challenge decisions against them.Typically, the assessments take many months or even years, and refugees have no access to their findings.
The Australian government indefinitely detains refugees if ASIO makes an adverse security assessment on them. This leaves many refugees, particularly if they are from Iran, in a state of limbo because their country of origin may not accept their return. If they are from Sri Lanka or Afghanistan, they face persecution on their return, and there are many documented cases of refugees losing their lives or being tortured when returned to their country of origin.
High Court ruling
A High Court ruling handed down on October 5 has put into question ASIO’s role in denying refugees visas. The High Court found that the denial of a protection visa to a Tamil man with an adverse security assessment from ASIO had no legal basis. In effect, the High Court ruling stated that it was unlawful to deny a visa without judicial review. The court found that it is unlawful for the immigration minister to refuse a protection visa on the basis of a refugee being given a negative ASIO finding.
The case was brought by David Manne, the lawyer who successfully challenged the federal government’s Malaysia solution in court. The plaintiff was a Tamil man who had been held in detention since 2009. The government had intended to deport him back to Sri Lanka. He had been assessed as a refugee because he had a well-founded fear of persecution; however, ASIO had blocked him from receiving a protection visa on the grounds that he was a security threat.
Manne attacked several fundamental powers of ASIO and the Australian government, including the right of the government to detain refugees indefinitely. There are currently more than 50 Tamil men, women and children in that category, some of whom have been in detention for three years. The ruling will have implications for all of them.
However, the likely response from the government will be to amend the Migration Act to increase the powers of ASIO. Refugee groups have called for the immediate release of all ASIO negative refugees, in line with their demands to end the system of mandatory detention. A media release from the Refugee Action Collective stated that refugees must have the right to challenge ASIO’s decisions:
“It is a small victory for justice and common sense. These people have already been found to be refugees. Despite them being refugees, some of them have been in detention three years. The High Court has now said that the Minister has not had a lawful reason to deny them a visa.”
“The ball is now in the minister’s court. Adverse ASIO assessments are no reason to deny refugees a protection visa. The minister must now act immediately to actually grant them protection visas and release them from detention”, said Ian Rintoul, spokesperson for the Refugee Action Coalition.
Refugees have been given negative ASIO assessments as part of a wider agenda to demonise and marginalise refugees. It is a classic case of state-sponsored scapegoating, to divert attention from growing social crisis.
The government has deliberately fostered an impression in the wider community that ASIO negative findings meant that refugees are a threat to our security. In the corporate media and particularly on talkback radio, the impression is sown that refugees could be terrorists. But not one single refugee has ever posed a threat to Australians. There has not been one instance of terrorism instigated by someone who has come on a leaky boat to find refuge in Australia.
The Labor government has willingly gone along with this falsehood, originally perpetuated by the Howard government when it claimed that there might have been terrorists aboard the Tampa, completely blowing the threat of terrorism out of all proportion. Of course each successive government knows this, but it helps feed into a climate of fear and insecurity, which the two major parties both love to manipulate.
The government has yet to address the extent of ASIO’s powers or respect the right of refugees to challenge adverse decisions. While it claims that Australia is a tolerant country that respects people’s religious and political beliefs, upholding the principles of natural justice, it has not given refugees the same rights as Australian citizens.
The treatment of refugees in Australia has been exceedingly cruel and is manifestly unjust. The government could grant refugees who are now in limbo protection visas with the stroke of a pen. In detention they have been robbed of years of their lives and opportunities to start a new life. This is one of Australia’s greatest injustices, which in years to come will need to be redressed through compensation for the misery inflicted on refugees.
Direct Action – October 8, 2012