THE indefinite detention of more than 50 refugees deemed security threats by ASIO will be reassessed after the High Court yesterday struck down the regulation that prevented their release into the community.
The refugees, who have been in limbo for up to three years, are also poised to win the right to challenge their adverse assessments by ASIO in the wake of the landmark decision on the case of a 36-year-old Tamil refugee from Sri Lanka.
Human rights lawyer David Manne, who launched the action on the man’s behalf, yesterday appealed to the government to promptly release his client – who has been in detention since December 2009 and is suffering from depression – as well as other asylum seekers in the same situation.
”The only thing that stood between our client, a refugee visa and his freedom was a regulation which the court has ruled is invalid,” Mr Manne said. ”The government should act urgently to end not only the detention of our client, but others in a similar predicament.”
Ranjini, a pregnant mother of two young boys, and another of Mr Manne’s clients, is held under the same circumstances at Villawood detention centre. Her husband last night pleaded with Immigration Minister Chris Bowen to release his wife. ”Every day, every hour, every minute in detention is upsetting her and the boys,” he said.
Attorney-General Nicola Roxon said the government would ”quickly consider the implications for the 50 or so people that are in similar circumstances” and move promptly to introduce a transparent review mechanism ”so there is an extra assurance for people that ASIO’s decisions are based on sound grounds”.
Opposition immigration spokesman Scott Morrison expressed dismay the court had found ”that our government has no power to keep known security risks out of our community”.
Mr Morrison vowed to work with the government to ”restore the powers needed to protect our national security” and is due to meet Mr Bowen on Tuesday. Mr Morrison also called on Mr Bowen to ”advise what arrangements and safeguards will be put in place in relation to the imminent release into the community of those found by ASIO to be a security threat”.
Greens senator Sarah Hanson-Young called on the government to implement a more humane approach for those deemed security risks, saying the unlawful detention of the refugees, including three family groups with young children, had compounded the trauma they had endured as refugees.
In a complex judgment, four of the seven judges said the government’s decision to refuse the asylum seeker – identified only as M47 – a protection visa had not been made according to law because it relied on an invalid regulation.
While M47’s continued detention was lawful while his application for a refugee visa was reassessed, the judges warned that he would be entitled to seek a review by the Administrative Appeals Tribunal if Mr Bowen refused him a visa because of the ASIO assessment.
Significantly, a majority found M47 had not been denied procedural fairness in the ASIO assessment process.
Because the challenge was upheld on the basis of the invalid regulation, the four judges did not reconsider a landmark 2004 ruling in which the government’s right to hold asylum seekers indefinitely was upheld by a 4-3 majority. Two other judges said the 2004 decision should be overturned.
M47 has been in detention since his arrival in Australia three years ago. A delegate of the Minister for Immigration found he had a well-founded fear of persecution in Sri Lanka, but refused his application for a protection visa because ASIO had assessed him as a risk to security.
Led by Mr Manne, the legal team that successfully challenged the government’s Malaysian people-swap agreement launched the High Court action on M47’s behalf in May, questioning the validity of the decision to refuse him a protection visa and challenging his continued detention.
Mr Manne said it was a tragedy that his client had been incarcerated for almost three years in circumstances that had caused him ”terrible and lasting damage”.
”The government should now end not only the detention of our client, but of others in a similar predicament in the light of this decision and to avoid further unnecessary legal proceedings,” he said.
Mr Manne visited M47 in detention in Broadmeadows last night and said his client was relieved, and ”hopeful that the decision will lead to his freedom”.
This story Administrator ready to work first appeared on Nanjing Night Net.