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While dozens of refugees brought to Australia under medevac were unexpectedly released into the community on temporary visas this week, grave fears remain for the men left behind in detention. By Elle Marsh.

Fight to free refugees in hotel detention

Rohingyan refugee Don Khan in hotel detention this week.
Credit: Supplied

Ramsiyar Sabanayagam, a 29-year-old Tamil, met Don Khan, a stateless Rohingyan, inside Australia’s offshore detention centre on Manus Island in 2013. Sabanayagam remembers seeing Khan walking past his compound five times a day to pray, and once stopped Khan to ask about his religion. “I am Hindu, he’s Muslim,” says Sabanayagam. “He said, ‘That doesn’t matter, okay?’ ” After eight years together in detention, Sabanayagam thinks of Khan as a brother.

In 2019, both men required medical treatment and were transferred to Australia under the now-repealed medevac legislation. But since arriving on the mainland, Sabanayagam and Khan have been held indefinitely in alternative places of detention (APODs), hotels in Brisbane and Melbourne. Both say they haven’t received adequate medical care.

Last Wednesday, January 20, the refugees detained at the Park Hotel Melbourne in Carlton – including Sabanayagam and Khan – were split into group meetings. There was nervous energy in the air: rumours had been circulating for a month or so that some of the medevaced detainees would be released into the community. “Do you have someone who can support you in the community?” government staff began to ask the men, quietly, around Christmas. But after years in detention, the men had learnt not to get their hopes up.

Sabanayagam says his group, of roughly a dozen men, were told by an immigration official they would all be released the following day. “Everyone made a noise of happiness,” he recalls. “Really, I couldn’t believe it. Eight years, they’ve never said any good news!”

Over the next two days, 46 refugees – some who had been detained in hotel rooms without fresh air for more than 20 months – were released from the Park Hotel into the community on bridging visas. But Khan was not among them. He and 12 others remain indefinitely imprisoned in the hotel without any explanation of why they cannot leave.

Khan says he is happy for his friends who were released but hasn’t been able to sleep in the past week. He can’t stop thinking, “Why am I still here?”

 

To begin to understand why Home Affairs finally relented and allowed dozens of medevaced refugees into the community, lawyers in the refugee sector say you need to go back to a case decided in the Federal Court last September. It concerned the detention of a Syrian refugee, Mahmoud, who came to Australia as a child, and the outcome, lawyers say, was a watershed.

Mahmoud’s lawyer, Alison Battisson, successfully argued for his release from detention under the legal order of habeas corpus, an 800-year-old writ that requires a detained person be brought before a court to determine whether they are being legally detained. Battisson claimed the Australian government hadn’t taken appropriate steps to return her client to Syria, or to progress his migration case, and the judge agreed – finding Mahmoud’s detention to be unlawful.

“The risk was massive,” says Battisson, a lawyer from Human Rights for All. “His family were very concerned that he could be sent back to Syria.”

But something had to break the impasse. For almost two years, the refugees brought to Australia under medevac had been held in limbo. Through freedom of information (FOI), Battisson found that before December 2020, not a single refugee transferred under the legislation had been released into the community.

“We had this suspicion that they were being punished,” she says. “And I think we can safely say that’s probably correct.”

Battisson recently received FOI documents regarding one of her refugee clients and was stunned. “I kid you not, for 18 months they’d been in Australia. There were two emails on whether to release them into the community or not. They were just forgotten.”

Still, the lawyers needed to proceed with caution.

“It takes a long time to do an individual case because of the danger they could be sent back, and we’re talking about people who could be sent back and murdered. So, we do not take these sorts of actions lightly,” Battisson says. “But at the same time, we have a window of opportunity that we need to use.”

That window may close – the government is appealing the decision in April – but since Mahmoud’s case, refugee lawyers from around the country have taken this precedent and filed numerous challenges for their own clients, including those who arrived under medevac.

This includes Sydney lawyers Noeline Harendran and Daniel Taylor who, over the past few months, have filed more than 100 cases for asylum-seeker clients, including Sabanayagam and Khan. It has been a sprint – both admit they didn’t really have a Christmas or New Year’s, and workdays sometimes ended at 4am – but there was no time to waste.

The pair served subpoenas on Home Affairs Minister Peter Dutton to produce documentation about what his department’s plan was for their clients, including where they would be resettled. Every time, before the subpoena was due, the minister would instead release their clients.

Since the release of the men from the Park Hotel, Dutton has claimed cost as the reason. “It’s cheaper for people to be in the community than it is to be at a hotel, or for us to be paying for them to be in detention,” he told Ray Hadley during a 2GB interview last Thursday.

But lawyers and advocates say that in reality it was growing legal pressure, coupled with daily protests outside the hotels, mounting public backlash and the looming Australian Open that culminated in the men’s release.   

There’s speculation in the refugee sector that the government’s decision to release some of the men is an attempt to avoid medevac detainee cases going to trial – potentially to prevent further legal precedent and its immigration policies being scrutinised by the court. One theory is the government may be trying to avoid information regarding Australia’s diplomatic negotiations with Papua New Guinea and Nauru coming to light.

“It’s actually been a bluff by the minister. And [Dutton] sort of made out that there’s a plan,” Taylor says.

Battisson agrees. “They didn’t have a plan for these people … They were just left to rot.”

When asked why some medevac detainees were released into the community last week, a spokesperson from the Department of Home Affairs told The Saturday Paper “the department does not comment on individual cases”.

“The Australian government’s policy is clear that no one who attempts illegal maritime travel to Australia will be permanently settled here,” the spokesperson said.

Since December, 30 of Harendran and Taylor’s clients, including Sabanayagam, have been released from detention. As to why Khan is still being held in the Park Hotel, the logic remains opaque – like Sabanayagam, he has been found to be a refugee, and has two uncles in Sydney who’ve written to the government saying they are willing to look after him if he’s released.

“All the court cases are about freedom. Just give them freedom. That’s all they want,” Harendran says.

“We will not be giving up until every single one of them is outside.”

 

Last Thursday, Ramsiyar Sabanayagam stepped off a bus into the outside world. “That moment, I will never forget,” he says.

He and his fellow former Park Hotel detainees were met by a group of friends, supporters and refugee advocates, who swept them off to a party to celebrate their release. “I can’t explain that happiness. Everyone hug and kiss. Really, I’m too excited,” Sabanayagam says. He jokes about how he ate so much of his favourite Sri Lankan dish, kottu roti, he couldn’t walk.

The next morning, waking up a free man for the first time in eight years, he recalls laughing with relief as the realisation washed over him that he could simply walk outside into the sunlight.

“We’re all celebrating, it’s such a huge relief,” says Jana Favero, the director of advocacy and campaigns at the Asylum Seeker Resource Centre (ASRC). “But there’s a whole lot of pressure on the unfunded agencies in the sector who are now scrambling to try and support the men who’ve been released.”

Key to this is finding them long-term housing. For now, Sabanayagam is staying in Melbourne’s west in accommodation provided by the government – but, for him and some of the other men, that will run out next week and they will be on their own. A working group of friends and volunteers has been set up to make sure the newly released refugees have everything they need.

Sabanayagam and the others have been released on six-month bridging visas, which gives them work rights and access to Medicare. In the future, Sabanayagam wants to study, something his visa doesn’t allow him to do. For the time being though, he is taking everything day by day.

The trauma of his detention is still there. After spending “23 hours a day, every day, all day, in a room”, he says he’s still dealing with “sad and bad memories”. This is only compounded by his concerns about friends still inside the Park Hotel, including Don Khan.

Since his fellow detainees were released, Khan describes a sombre mood inside the hotel. The communal space is always empty now, with everyone staying in their rooms; no one is talking. He says a fellow detainee was transferred to the Melbourne Immigration Transit Accommodation (MITA) detention centre after attempting self-harm.

On Wednesday evening this week, one more of the men detained in Park Hotel was released, to be resettled in the United States.

On Thursday, there was a flurry of excitement as news spread that 15 detainees inside MITA had been released. At the Park Hotel, the men were told ABF would be meeting with them – but in the end, no meeting eventuated.

They remain detained, along with 15 people at the Mercure Hotel in Darwin and more than 80 in Brisbane’s Kangaroo Point Hotel.

“Really, my heart is broken,” Khan says. “There’s too much pain in my heart.”

He worries about his family, the pandemic and his future.

“I want to say this very clearly: please don’t leave us. We are very worried about our situation, and all of our people in detention centres,” Khan says.

“We are scared. Please don’t leave us. We cannot survive here. Please don’t forget us.”

This article is supported by the Judith Neilson Institute for Journalism and Ideas.

This article was first published in the print edition of The Saturday Paper on Jan 30, 2021 as "Blessed release".

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Elle Marsh is a features and field producer at 7am, a daily podcast from The Saturday Paper.