Exclusive: All 57 ASIO refugee case warnings revised after review
This week, a Sri Lankan man who had been held in immigration detention in Australia for five years was suddenly released.
Lukesh – not his real name – was one of 57 people since 2012 who were found to be eligible for refugee status but were detained because of an adverse security assessment from the Australian Security Intelligence Organisation.
All have since had their cases reviewed and the ASIO assessments revised.
When the Attorney-General’s Department’s independent reviewer of adverse assessments examined ASIO’s finding in Lukesh’s case, the agency amended its assessment from adverse to “qualified”, meaning it was no longer a barrier to his being granted protection.
He was released on a bridging visa from the Melbourne immigration transit accommodation in Broadmeadows on Monday, and has now joined his wife and children, who have been living in the community, waiting.
Like most of the rest of the 57 who arrived in Australia and were found to be refugees before offshore processing was reintroduced in 2012, Lukesh’s original adverse assessment is believed to have been based on either suspected or declared links to the Tamil Tigers.
With the war over and the Tigers now defunct, it seems most of ASIO’s concerns have been alleviated.
Buried in ASIO’s yearly report, tabled at the end of last year, is confirmation that all 57 refugees declared a high security risk and detained indefinitely have now had their assessments downgraded to either qualified or the lower-level “non-prejudicial” status.
That removes a key barrier to them being granted visas. But in some cases, the revisions have taken a long time. After that, the wait for a visa and then release has often been months or more without being given a reason. Not all of the 57 have been released.
The executive director of Refugee Legal, David Manne, wants an explanation.
“It is incumbent upon the government to urgently take steps to release them unless there is some other lawful basis for their detention,” Manne says. “… If not, why not?”
Lukesh’s release comes as it is revealed that then immigration minister Scott Morrison obtained cabinet’s agreement in October 2013 to ask ASIO to delay its assessment processes while the law was being changed to abolish permanent protection visas. The move was intended to limit settlement for boat arrivals.
Manne is examining the document revealing the move and considering a challenge. “I can’t rule out legal action.”
The Saturday Paper has identified at least two other Sri Lankans still being detained, despite their ASIO assessments having been revised.
Bijal and Pradeep – also pseudonyms – are being held in the Melbourne centre and at Sydney’s Villawood Immigration Detention Centre respectively. Both have been in detention for about eight years.
Pradeep’s case featured in an ABC 7.30 report in 2012, which highlighted what were then already serious mental health issues. In the report, his brother – also in detention at the time, but released two years ago – pleaded for help for Pradeep and for “a good life”.
“If you can’t do that, please kill us both,” Pradeep’s brother said.
It is not clear why Pradeep and the other Sri Lankan man, Bijal, are still being held.
A fourth Sri Lankan man, who arrived about eight years ago, remains in detention with no resolution.
Linked to the Tamil Tigers, he was not included among the 57 because he was rejected outright as a refugee, apparently with no ASIO assessment at all.
Sources in the Sri Lankan community say the immigration department has accused him of involvement in crimes against humanity but he has not been charged with anything. He is in apparent limbo.
Another man, a Hazara from Afghanistan, is believed to be in indefinite detention at Villawood, having received an adverse security assessment. He is understood to have been released into the community originally, then re-arrested after being newly assessed as a threat.
Detailed reasons for the original assessments or the revisions are not available, not even to the subjects.
Many of the 57 were placed on bridging visas and are now lodging applications for slightly more secure temporary visas – their only option since Scott Morrison abolished permanent visas in 2013.
In a twist that one lawyer describes as “Byzantine and Kafkaesque”, at least one has recently had his application rejected on the grounds that because he only had a low-level association with the Tamil Tigers, the changed political climate in Sri Lanka means he can now return there safely.
In other words, he was found eligible for refugee status years ago but the connection that made him such a security threat in Australia that he had to be detained is now considered so benign he doesn’t need protection and can go home.
Sydney University professor of international law Ben Saul says ASIO overreached in its original assessments.
“I just think they were way too oversensitive and overprotective in excluding a whole lot of people who ought to be given protection under Australian and international refugee law,” Saul says.
“None of these 57 … have been charged with any criminal offence.”
Although Australia has among the world’s toughest anti-terrorism laws, in these cases they had never used control orders, “which are even easier to use”.
ASIO’s reports indicate the amendments to its security assessments can sometimes be due to the passing of time or changed circumstances, meaning groups that had posed a threat were no longer dangerous or didn’t exist.
But that’s about as much as is allowed to be known. Before the reviewer’s position was established in 2012, there was no review of ASIO’s assessments.
While ASIO revised some of the 57’s assessments of its own volition, some were only amended after the reviewer disputed the agency’s findings.
The current reviewer is former secretary of the Attorney-General’s Department Robert Cornall, whose two-year appointment has been extended until September, despite having had no cases before him for the past six months.
Some in the legal community believe the government is preparing to refer new cases.
The reviewer’s remit is also in some dispute.
To date, he has only reviewed the cases of those with adverse assessments already found to otherwise qualify for refugee status, having arrived in Australia before the Gillard Labor government reintroduced offshore processing in 2012.
His written mandate is to review the cases of those in detention who “engage Australia’s protection obligations under international law” but who have been found to be ineligible for a permanent protection visa “or who have had their permanent protection visa cancelled”.
Sydney-based human rights lawyer Alison Battison believes the reviewer’s work should extend beyond those confirmed as refugees to those still waiting.
“Worryingly, at least some of these people have been waiting on a decision for their protection visas for over a year,” Battison told The Saturday Paper.
“As such, one cannot escape the conclusion that the [department] is using delaying tactics to avoid giving these people access to the courts or tribunals.”
Battison points to the independent reviewer’s remit to examine assessments of people found to be refugees under “international law”.
“The people with adverse ASIO assessments remaining in detention very likely meet the definition of refugees under international law. The independent reviewer should act to review these cases, instead of waiting for the [department] to refer such cases to him.”
The role ASIO’s assessments plays in whether the government keeps people in indefinite detention remains a point of tension between Australia’s domestic spy agency and immigration officials.
That tension was highlighted by the ABC’s publication this week of Morrison’s 2013 request to ASIO. According to the documents, the delay he sought on assessments would help “reduce the risk of needing to grant a permanent visa to an IMA [illegal maritime arrival]”.
ASIO is a statutory body not subject to ministerial direction. The document said: “Without this, based on recent average flows, some 30 additional security clearances a week could be expected in the IMA caseload.”
In response to its publication, Morrison issued a one-line statement. “As minister for Immigration and Border Protection, it was my policy and practice to put Australia’s national security interests first,” it said.
Prime Minister Malcolm Turnbull defended his colleague.
“We make no apologies for sending the clearest message to the people smugglers and to their would-be customers: if you want to come or think you can come to Australia on a people-smuggler’s boat, you’re wrong,” Turnbull said. “You won’t. You won’t get here. You will not become a permanent resident.”
But among lawyers and in the security community, eyebrows shot up at the language in the leaked document.
The protected document stamped “Sensitive: Cabinet” describes a ministerial direction to the Refugee Review Tribunal and the Administrative Appeals Tribunal to “consider and dispose of protection visas in a particular order” to “reduce the number of IMAs potentially becoming grant-ready”.
Both this and the request that ASIO “aligns the processing of security checks closely” with that same direction, despite ASIO not being formally bound by it, were both under the headline: “Strategies to reduce the likelihood of a permanent protection visa grant.”
One senior security source told The Saturday Paper that a minister asking his or her department to write requesting an agency go-slow was “very odd”. Seeking to influence processes as described in the leaked document was “exceedingly odd”.
Another was less diplomatic, calling it “outrageous” and surmising that ASIO was likely to have rejected or ignored it.
Refugee lawyer David Manne says the direction represents “an improper interference in the due legal process”.
“This was an act clearly designed to subvert the ordinary operation of the law in this country and to avoid obligations that the government owed to people under the law to grant them permanent protection,” Manne says.
Refugee rights campaigner Pamela Curr says the process has “so obviously been politicised” by both major parties.
“It makes it a far more profound and sharper concern, knowing that the government of the day is not prepared to abide by existing laws and instead seeks to improperly influence bodies like ASIO to assist it in subverting the law and avoiding their legal obligations,” she says.
ASIO has long been sensitive to being blamed for the long-term detention of refugees.
In an address to the Institute of Public Administration in February 2012, the then director-general of ASIO, David Irvine, described ASIO’s role as to make careful “predictive judgements” about whether a person might pose a security risk.
“The question of whether people are held in detention or not is not a decision for ASIO,” Irvine said at the time.
“It’s a decision for government, and ASIO does not have a view – certainly not a public view – on whether people who receive adverse assessments generically should be held in detention or not. There are other ways and other solutions to that problem and it is up to the government to examine all of the possibilities and make its decision.”
But some are concerned detention has increasingly become the go-to option.
In keeping people detained indefinitely, the government relies on a 2004 High Court ruling in what is known as the Al-Kateb case.
Ahmed Al-Kateb was a Palestinian man born in Kuwait who had moved to Australia in 2000 and applied for a temporary protection visa. When his application was rejected, he sought to return to Kuwait but was refused entry, declared stateless and held in detention in Australia.
In a 4–3 ruling, the High Court judges upheld the government’s right to detain him for an unspecified period. Since then, repeated cases have gone before the High Court involving people being held in indefinite detention. But each time, the government has settled or otherwise resolved the case before it reached the point of judgement, avoiding the previous ruling being tested.
In legal circles, many are keen for the 2004 ruling – which only held by the narrowest margin – to be challenged before the current High Court.
The leaked document has also reignited the concerns of some in the legal, refugee advocacy and security communities about the implications of having ASIO and other domestic security agencies shifted from the attorney-general’s portfolio to reside alongside immigration in the new Department of Home Affairs under minister Peter Dutton.
Professor Ben Saul agrees with these concerns. “That means that potential for border protection policy to interfere for improper political reasons in national security decision-making is increased,” he says.
He traces the beginnings of that back to the change in ASIO’s remit after the terrorist attacks of September 11, 2001, to encompass the threat of people-smuggling, which, he says, is “a long way from ASIO’s traditional function of guarding against espionage, foreign interference and hard security threats”.
Alison Battison says the restructured portfolio is “disastrous” for those with adverse security assessments.
“Dutton is creating an ever-tightening net around these people, which limits their rights and access to justice,” she says. “Every Australian should be concerned over his new powers.”
The Home Affairs secretary, Michael Pezzullo, has publicly rejected what he calls fearmongering about his new department.
“The department will not act as an overseeing, overriding bureaucratic layer, nor will it be dictating terms to heads of agencies in the performance of their statutory functions,” Pezzullo told a Senate estimates committee in October.
“Rather, the department will seek to improve the strategic level of policy development and planning in support of a cabinet-level minister who, for the first time in the modern history of the Commonwealth, will be charged with addressing security issues as a full-time point of focus and accountability.”
He said executive action “must always have prior legal authority”.
But for those concerned about the way the government deals with people seeking asylum in Australia, it’s not just about having that authority but also how it’s being used.
Already suspicious about the political exploitation of security at the expense of people seeking protection, they see this week’s revelations as proof, literally in black and white.
This article was first published in the print edition of The Saturday Paper on Feb 3, 2018 as "Exclusive: ASIO’s refugee warnings repealed".
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