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System of ASIO security assessments for refugees challenged in court and in Parliament

Today a High Court hearing begins concerning the plight of refugees who are the subject of adverse ASIO assessments. Currently, there are 51 people in this situation, including the pregnant mother Ranjini and her two boys. They are people who have been determined to be genuine refugees under international and Australian law. Ordinarily, such people are granted a protection visa allowing them to live freely in the Australian community. However, an adverse ASIO assessment means that the affected person is refused a visa and is detained on the basis of national security considerations.

Such detention lasts until ASIO changes its assessment, or until another country takes the person in. But there is no requirement upon ASIO to periodically reassess its determination, and this author is aware of only one case where such a decision has been revisited. The latter situation is very unlikely: adverse security assessments tend to put other countries off from voluntarily taking people in (though it is not unprecedented). As these detainees have been determined to be refugees, Australia cannot return them to their state of origin.

So such people face indefinite detention. Further, they cannot respond to or appeal the ASIO assessment as there is no requirement for ASIO to give reasons, due again to national security considerations.

Before the High Court, the legality of this system is being challenged on behalf of a 36 year old Sri Lankan refugee, known as M47. It will be argued that the man has been denied procedural fairness, that it is unlawful under the Migration Act to remove him as he has been found to be a refugee, and that his indefinite detention is illegal. Of course, a victory for M47 will have positive repercussions for all who share his dire circumstances.

The High Court last considered the issue of indefinite detention in the (in)famous case of Al-Kateb v Godwin, in which a 4:3 majority found that it was lawful under the Migration Act to detain a stateless Palestinian, who had been refused a visa, and who had no state willing to take him in. Many, including myself, believe this case to have been a low point in High Court case law.

Given the thin majority and its cruel consequences, perhaps Al-Kateb will be overruled. Alternatively, Al-Kateb may be distinguished on the basis that it concerned the rights of a non-refugee, whereas M47 has been accepted as having refugee status. The obligations owed to refugees under the Migration Act may warrant a departure from the previous case.

Also today the Greens announced an intention to introduce legislation to address the issue. Given the intransigent attitude of both parties to refugees, it seems unlikely this Bill will pass, at least not before the High Court ruling.

In the meantime, we should be ashamed as a nation of keeping people in true Kafkaesque limbo – they are indefinitely detained without any right to know the reasons why, and without any obligation on anybody to reconsider the reasons for their detention. A greater departure from the proud traditions of the rule of law is difficult to contemplate.

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