Refugees and hunger strikes: the need to appeal ASIO assessments

Asylum seeker detainees at an immigration facility in Broadmeadows have staged a hunger strike this week. AAP Image

27 men detained in Broadmeadows’ Melbourne Immigration Transit Centre (MITA) ended their hunger strike on Wednesday evening. This group of 25 Tamils and two Burmese Rohingyas had gone ten days without food, and the first five days without water as well. Four had been briefly hospitalised during this period.

They decided to end their hunger strike after meeting with Paris Aristotle, a member of the government’s Expert Panel on Asylum Seekers and an immigration department representative. They have now been promised another meeting with the department. So, what prompted their hunger strike?

The men have all been detained for over three years, and some for as many as four. They have all been found to be refugees in need of Australia’s protection. But they have not been granted protection visas because of adverse ASIO assessments. Under current federal legislation, they are not entitled to appeal this assessment.

Refugee advocates argue that this can lead to lifetime detention, and that it amounts to cruel and inhumane treatment. Instead, they say, these refugees must be immediately released into the community.

Bala Vigneswaran, a spokesperson for Australian Tamil Congress, stated earlier this week that: “The act of indefinite detention is soul-crushing. It squeezes out any hope of a normal life and leads to severe mental health issues”.

At the start of their hunger strike, the refugees painted poignant banners and released a statement.

“We are on the edge of life,” it reads. “We can’t keep living like this. We are not in detention. We are in a cemetery.”

The refugees say that they have taken this action after much waiting and many patient inquiries that have failed to elicit any meaningful response from the immigration Minister, the director of ASIO or the immigration department.

On an immediate level, the hunger strike was prompted by a visit to MITA from retired Federal Court judge Margaret Stone. Justice Stone has been appointed, in response to the High Court M47 decision, to review the negative ASIO assessments of the nearly 60 refugees across Australia. During her visit, Justice Stone is reported to have explained to the refugees that she has no power to enforce her recommendations, there is no set timeframe for her review, and the political future of her review powers was uncertain in light of the upcoming federal election.

The hunger strike can be seen as an act of political desperation and utter disillusionment. These refugees were using their bodies to signal their loss of hope in institutional processes that remain unclear, lack accountability and are unreasonably slow. It’s possible that they also didn’t feel that the broader Australian public was concerned about their prolonged imprisonment.

Refugees and their advocates are rightly outraged and frustrated by this predicament. The refugees are not entitled to see the full ASIO assessments or know the detailed allegations made against them. Instead, to date, some have received an exceptionally brief and speculative summary “statement of reasons”.

In addition, Justice Stone’s recommendations are only advisory. The final power of determination remains with ASIO and the immigration minister, who retains discretionary powers to deny a visa on “character” grounds.

Alternative review processes need to be adopted that give concrete rights to refugees and allow for increased procedural fairness, participation and accountability. Last year’s parliamentary inquiry, for example, recommended that negative ASIO assessments be reviewed by the Appeals Division of the Administrative Appeals Tribunal. This would give refugees the same procedural rights as Australian citizens under the ASIO Act. The inquiry also recommended that refugees be placed in the community while ASIO security assessments are being conducted.

Australian Human Rights Commissioner Gillian Triggs this week called for the adoption of alternative processes similar to that of Canada and the UK, where refugees are appointed a “special advocate” before administrative tribunals.

To the refugees’ appeal, prime minister Julia Gillard has responded in the absolutist terms characteristic of the Howard government’s rhetoric towards asylum seekers. Meanwhile, foreign minister Bob Carr continues to redirect aid funding earmarked for other projects towards the high cost of refugee offshore processing while maintaining his collaborative efforts with the Sri Lankan government to prevent people and boats departing for Australian shores.

The prospects for the affected refugees who continue to ask to be released into the community remain uncertain. In bearing witness to their desperate acts of protest, we are reminded of the harms inflicted through public discourse and laws that seek to legitimate unsupervised and undisclosed ideas of “national security” as a ground for exclusion.

Australia must take seriously the duty to provide asylum to those fleeing persecution. This means that we must act to halt the already intolerable human costs of Australia’s militarised border policing and immigration regime. Releasing people from indefinite detention and formally curtailing and reviewing ASIO’s powers to determine people’s fates must be a start.