Indefinite refugee detention challenged in High Court
By Amy Bainbridge, Lateline, ABC. From http://www.abc.net.au/news/2012-05-23/high-court-challenge-to-refugee-asio-assessments/4029480
A human rights lawyer has lodged papers in the High Court in a bid to challenge asylum seekers’ detention on the grounds of adverse ASIO security assessments.
The case argues refugees should have the right to an independent review of their security assessment.
It follows a similar recommendation from a parliamentary inquiry into Australia’s immigration detention network.
Court documents name five defendants, including ASIO’s director general, Immigration Minister Chris Bowen, the Immigration Department secretary, the officer in charge of Melbourne Immigration Transit Accommodation, and the Commonwealth.
Lawyer David Manne’s case centres on an unnamed Sri Lankan man who has been in detention for more than three years after receiving a negative security assessment.
Mr Manne says his client faces the prospect of being locked up indefinitely.
“Our client is in a very desperate situation, he is extremely distressed and has been extremely damaged by the experience of detention after fleeing from the trauma and persecution of his past,” he said.
The High Court case could have far-reaching consequences for more than 50 refugees in a similar situation across the country.
Mr Manne says they are left in limbo by an unfair and secretive system.
“The predicament is this stark. A refugee is locked up indefinitely on the basis of a negative security assessment, made under a secret process on information he doesn’t have, and for reasons he’s not told, and without any independent review or scrutiny of the decision,” he said.
“It’s like being sentenced to life imprisonment without even having been charged, tried and convicted. It’s like a secret trial, we don’t know the process, we don’t know the rules.”
The indefinite detention of asylum seekers was challenged in the High Court in 2004 in a case bought by Kuwaiti-born Ahmed Ali Al-Kateb against the head of the Immigration Department.
He lost when a four-three majority of judges decided that indefinite detention was lawful.
But Mr Manne says this case is different because it focuses on refugees, not asylum seekers.
“Firstly the facts of this case are quite different to the Al-Kateb case but also, it’s quite clear that we have not only the development of jurisprudence since that case, but also a differently constituted court which may well come up with a different position,” he said.
The full bench of the High Court has also changed since 2004 with only three of the same justices remaining.
Last year, the High Court ruled the Government’s refugee swap deal with Malaysia invalid after a challenge led by Mr Manne.
A number of lawyers who worked on that case are working pro bono on the new case.
A spokesman for the Immigration Minister says he cannot comment because the matter is before the courts.
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