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Human Rights Defender |
Ronni Redman, Faculty of Law, University of New South Wales
Ali (detained 3 years 6 months) to his lawyer: ‘Do you think that after 5 or 6 ... or 7 years I will still be here? What about after 10 years? Do you think I will die here?’
In his book A Common Humanity (1999) philosopher Raimond Gaita posits that racism is the denial of a common humanity, the essential unintelligibility of the depth of the suffering of others. In this country, we lock people up for arriving without valid travel documents despite their flight from persecution in circumstances where the very idea that one might obtain such documents is unthinkable. We lock up children. We lock up children who are suffering from serious mental illnesses.
We also lock up people in circumstances in which it is unclear when, if ever, they will be released. Typically this arises in two situations. In the first situation, asylum seekers who have been denied protection visas and are awaiting removal from Australia are unable to be removed. In the second situation, non-citizens who have committed crimes are made subject to deportation orders but find that their birth countries will not receive them back. They remain incarcerated in Australia, often in gaols, long after the expiration of their criminal sentences.
The reasons for the inability to deport/remove someone differ. For example in the case of Bidoons from Kuwait, Kuwait has refused to accept them back. In the case of Iraqis, political difficulties make direct repatriation impossible and transit countries require that returnees give their consent to repatriation, a consent which many are unwilling to give on the basis of their continuing fear of persecution.
The two situations described above differ from each other in several important respects but there is one critical commonality: the end point of the detention is unknown and often beyond the control of the detainee. Although the proposition that a person fleeing persecution ‘chooses’ detention because they can always opt to return home is deeply problematic, in theory at least many asylum seekers’ detention could be brought to an end by their own actions. And persons subject to a criminal sentence will be released on expiration of that sentence (or earlier where parole is possible). By contrast, the non-citizen who cannot be removed or deported generally has no option to end his or her own detention and cannot know when that detention will end. Removal or deportation may be effected if a diplomatic solution is reached with the country of origin or a third country, but when and if such a resolution is reached is usually beyond the detainee’s control.
Indefinite incarceration of this nature is repugnant to our notions of justice. As Justice Madgwick of the Federal Court of Australia noted, ‘Administrative detention for a long or indefinite period, except in cases of utter urgency or necessity, is abhorrent to our legal and political traditions and to international concepts of human rights for which Australia has signified our respect by entering into treaties’.[1]
It is worth noting in this regard that the Human Rights and Equal Opportunity Commission has found on a number of occasions that continued detention following completion of a criminal sentence is ‘arbitrary’ and in breach of Article 9 of the International Covenant on Civil and Political Rights to which Australia is a signatory.[2]
The Public Interest Advocacy Centre (PIAC) is a Community Legal Centre focussing on public interest litigation, policy, advocacy and training. It has recently embarked on a variety of legal and other strategies to assist people in long term immigration detention. Alexis Goodstone, solicitor with PIAC, has run a number of cases seeking writs of habeas corpus for the release of detainees who cannot be removed from Australia and there are more cases waiting in the wings. Goodstone explains this focus in terms of the ‘terrible effect of detention on detainees and the multiplication of this effect where people are detained for very long periods of time’. She says that ‘these enormously long periods as well as the lack of an end date and consequent uncertainty’ have serious psychological effects on detainees, who are often young men, with wives and children overseas, whose entire lives are on hold, just at a time when most people are building careers, raising families and generally consolidating their directions in life.
Goodstone quotes Ali, one of her clients: ‘I constantly feel anxious, worried and stressed about my situation. I am tired and exhausted. I cannot think clearly or remember things sometimes and I cannot sleep properly ...I attempted to commit suicide twice when I was at Port Hedland. Both times I used a sheet to make a noose and hang myself. Both times, Australasian Correctional Management staff stopped me’. She says Ali’s predicament is hardly unique. Most of her clients report high levels of anxiety, depression and suicidal behaviour. Continued detention in such circumstances may be worse than the situations from which the detainees fled. She strongly refutes the view that releasing detainees in these situations is tantamount to granting them permission to stay in Australia. ‘They have no work rights, no Medicare, no social security’, she points out. ‘They may be subject to the most stringent daily reporting conditions and they remain subject to removal from Australia as soon as this becomes practicable’. This highly circumscribed life, reliant on family or charity for the most basic necessities, cannot be compared to being part of the Australian community.
These legal challenges (run by PIAC and others) have had mixed success. In the context of asylum seekers, Justice Merkel of the Federal Court of Australia was of the view in the Ali Masri case that the detention powers in sections 196 and 198 of the Migration Act authorised detention only for so long as the Minister was taking all reasonable steps to secure the removal from Australia of a removee as soon as is reasonably practicable and the removal is ‘reasonably practicable’ in the sense that there is a real likelihood or prospect of removal in the reasonably foreseeable future.[3] His Honour ordered the conditional release of the applicant. Other judges had taken issue with this interpretation,[4] but the Full Federal Court on appeal in Al Masri[5] essentially agreed with Justice Merkel, finding that detention was authorised only where removal was a real likelihood in the foreseeable future.
In the criminal deportation context, a challenge to the lawfulness of the detention of a person incarcerated for over four years following the expiration of his criminal sentence failed when the judge found that the Minister, in exercising his discretion to hold the applicant in immigration detention, had at all times acted in accordance with the law.[5] On appeal, the Full Federal Court rejected an argument that by reason of the uncertainty of the possibility of deportation the detention was not bona fide for the purpose of deportation (and hence unlawful). Though ultimately dismissing the appeal, the Court did however consider that ‘it may be that the length of the period of detention, and the prospects of effecting deportation in any reasonable time frame, may in all the circumstances of a particular case lead to the conclusion that the purpose of the detention was no longer ‘pending deportation’’.[6] The Court also accepted that administrative detention for a long or indefinite period should not be authorised except by clear statutory language.[7] The Full Court accepted Justice Marshall’s factual finding that the detention of the applicant was not indefinite.
The outcome of the appeal in the Al Masri case is a good sign for those wishing to challenge their indefinite incarceration but the case is unlikely to end there and the approach of the High Court should the matter come before them is hard to predict. Goodstone notes that if legal avenues close, PIAC has other approaches – advocacy and policy among them. Part of PIAC’s strategy in respect of their clients has been in communicating with other advocacy/lobby groups and sharing the stories of long term detainees. She points out that alternatives for her clients (mostly Iraqis and Kuwaitis) and those in their position are severely limited. Complaints to the Human Rights and Equal Opportunity Commission or to the Human Rights Committee under the International Covenant on Civil or Political Rights are theoretically open but result in recommendations only – recommendations to which the current Government has to date paid scant attention.
It may be that the psychological suffering of a young man immobilised behind razor wire, unable to enter Australia, unable to return to his family, unable to ascertain when he will be able to move again is unintelligible to us. If that is so, we have distanced ourselves from his humanity and this distance is a measure of racism. To refuse to countenance such a situation, to challenge a system that permits arbitrary incarceration is to begin to bridge this distance.
Gaita, Raymond, A Common Humanity, Text Publishing, Melbourne, 1999.
[1] Perez v MIMIA [1999] FCA 1342 at para 17
[2] see HREOCA Report 13 (2001) and Report 22 (2002), available at http://www.hreoc.gov.au/publications/index.html#human_rights
[3] Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009. In Al Khafaji v MIMIA [2002] FCA 1369, NAKG v MIMIA [2002] FCA 1600 and WAIW v MIMIA [2002] FCA 1621 Al Masri was followed as a matter of comity with the judges expressing reservations about the reasoning.
[4] For example, WAIS v MIMIA [2002] FCA 1625; NAES v MIMIA [2003] FCA 2; NAET v MIMIA [2003] FCA 1 and Daniel v MIMIA [2003] FCA 20.[]
[5] Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70.
[6] Luu v MIMIA [2002] FCAFC 369 at para 66. The appeal was dismissed. Note that the statutory provisions applicable to criminal deportation differ from those in the context of the removal of asylum seekers.
[7] Luu v MIMIA [2002] FCAFC 369 at para 73. And see also the Full Federal Court in Al Masri [2003] FCAFC 70.