Dead refugee caught in ‘legal limbo’ between government agencies

Shooty Vikadan died in Villawood Detention Centre before the Commonwealth Ombudsman could review his case. AAP/Torsten Blackwood

The asylum seeker who committed suicide in Villawood detention centre this week should have been interviewed by the Commonwealth Ombudsman to establish whether he should have been released into the community.

Jayasaker Jayrathana, known as Shooty Vikadan, had been held for two years. His refugee status had been approved in August, but he was awaiting security clearance from ASIO.

The case arrived on the desk of Ombudsman Alan Asher’s desk the day he resigned after it was revealed he had co-operated with the Green Party to campaign for extra funds for his office.

The Conversation spoke to former Attorney General Michael Lavarch, now Executive Dean of Law at Queensland University of Technology, about what went wrong in this case.

What’s involved in a normal ASIO security clearance?

ASIO provides a large number of security clearances every year.

A large part of their work goes on people who are securing positions within government, that require the person to have access to sensitive information and there are different layers of security clearance depending on the level of information that people might come across in their role.

That’s a very extensive process – that will involve interviews with the individual, interviews with other people and checks of police and other records.

The sort of security clearances involved in migration cases, and these occur for effectively all migration matters including people seeking to have visas to enter the country - are a much lighter touch of clearance and is, in effect, a police records and official check.

Only if these sources indicate problems or raise issues will the investigations become more involved.

Is there a different process for an asylum seeker’s security clearance?

In cases of asylum seekers, essentially the security processes which are involved are, in the terms of the overall assessment process, relatively minor, although it can be important.

Obviously, in terms of a claim for asylum, the principle assessment which is being undertaken is whether the claimant meets the requirements under Australian and international law of being a refugee.

And in essence, that’s about establishing whether the person has legitimate grounds to fear persecution in their country of origin.

In other words, are they genuinely fearful of their own safety or their wellbeing or that of their family?

Now the security aspects of that are but a sub-set, and the role that ASIO is asked to play will vary with each individual case.

The vast majority of people who arrive unlawfully in Australia don’t come on boats. Most fly in on a jumbo jet and overstay or offend the terms of their visa.

But you get this disproportionate public reaction and political reaction to boat arrivals.

But in both cases, ASIO is required to supply to the Department of Immigration a security advice on the individual.

At first instance that might be confirming the identity of the individual. In some instances people do not have even basic documentation. That can be quite challenging obviously in confirming people who say they’re “A” are, in fact, “A”.

In most cases it’s fairly clear they are who they say they are. And then the assessment is, in essence, a police check, whether there’s any concern from any police or government agencies from the country of origin about the individual.

Why can it take longer?

On the whole that process does not take all that long and it can take only a matter of days. But it depends on the responsiveness of the country of origin.

Almost by definition, if one is seeking asylum you’ll be coming from a country that has dysfunctional institutions or potentially police forces or government agencies that are instruments of the oppression the person is fleeing from.

In those circumstances it’s going to be much more difficult to get necessary or balanced information.

But the basic tests are about who is the person, is there anything about them in terms of their threat to the Australian community – criminal activity or being involved in terrorist activity or political or ethnically-motivated violence.

In the case of someone from Sri Lanka, the concern would not be membership of al-Qaida, but, for argument’s sake, checks could go to their role in atrocities committed between the Tamils and the majority population.

In my view, in most instances, if someone has refugee status then the security clearance really shouldn’t be much of a barrier.

If ASIO is sitting there with 50,000 clearances to be done, mainly visa applications and only a few thousand asylum seeker claims, you would think that through decent co-ordination between the immigration department and ASIO that they could attempt, and I know they do their best, to coincide the processes.

But they are two separate agencies and that means there’s a potential for things to get out of kilter.

Does an asylum seeker have to be in detention while awaiting a security clearance? Does ASIO require it?

In the vast majority of cases, there is no requirement that the person be in detention for the purposes of the security assessment.

That’s a judgment that the Australian government has made, that it is sounder or safer to keep someone in detention until you’ve got the security clearance and confirmation they’re not an opium runner from Afghanistan, who may still be legitimately fleeing persecution.

Of course, then you have the worst of all worlds for an individual, they could be accepted as a refugee but the security clearance comes back negative.

That individual is in a real legal limbo. There’s only a handful, but these things do happen.

A third country is unlikely to be putting their hand up to take someone who you’ve declared to be a security risk.

But there is no legal requirement nor a procedural requirement on behalf of ASIO for the person to be detained while the clearance process occurs.

Because ASIO’s checks are not focused on interviewing the individual, but on inquiries in the country of origin.

There might be a need in a given case to talk to the claimant, but generally we’re talking about the checks occurring offshore.

So there’s no skin off ASIO’s nose if the person’s in detention or sitting on a beach.

Can the blame be placed at the government’s door for the delay in the case of Jayasaker Jayrathana?

I couldn’t answer that. But there would be absolutely no desire on behalf of the government for a person to harm themselves or to take their life. There would be nor desire at all.

Ipso facto if the person had been in detention for a considerable period, and I see the media reporting that the minister said this was a very complicated case. And no doubt it was, so I would be loathe to be blaming the government.

I understand the politics as I’ve lived through it myself, but the mistake the government has made in this is to hang on so doggedly to the whole idea of offshore processing.

Really we need onshore processing, particularly after the High Court killed off the Malaysian solution.

I am a supporter of on-shore detention being part of the system. I think that’s legitimate. That’s a different question to whether all of the processing steps, the appeal processes and the whole administration is being as efficient as it possibly could be.

My personal view is that detention should be part of that process. And, as I understand it, the Greens who have a liberal view on this also believe in detention for the purposes of security and health checks.

The Greens and others contend the period while the asylum assessment is undertaken should occur in a community setting.

I am a little in a half-way position on that matter. Detention has a role in my view, provided it is on-shore and time limited.