The Guardian Australia

Dual national in Syrian prison launches high court challenge of Australian citizenshi­p loss laws

- Paul Karp

Laws allowing the home affairs minister to cancel the Australian citizenshi­p of a dual national suspected of terrorist activities are being challenged in the high court.

An urgent case was filed on Friday on behalf of a 34-year-old Turkish Australian currently imprisoned in Damascus, Syria, whose lawyers say is at “imminent danger of torture, serious bodily harm or death” after his Australian citizenshi­p was stripped on 2 July.

According to documents filed in the high court by his sister, Delil Alexander left Australia for Turkey then Syria in April 2013. He was arrested by Kurdish militia in March 2018 and found guilty of unspecifie­d offences by a Syrian terrorism court in January 2019 due to admissions he says were obtained under torture.

In July 2020 the charges were downgraded to “secondary involvemen­t in offences”. Alexander was sentenced to

five years’ hard labour but was later pardoned.

Despite the decision, Alexander remains behind bars in limbo – unable to be sent to Turkey because his Turkish citizenshi­p is under a different name, and unable to come to Australia because the home affairs minister, Karen Andrews, cancelled his Australian citizenshi­p.

Asio had advised the minister Alexander had “likely engaged in foreign incursions and recruitmen­t by entering or remaining in al-Raqqa” after it became a “declared area” in December 2014, according to the court filing.

In the Syrian terrorism court, Alexander denied the conduct of which he was accused and that he was part of any terrorist group or activity. He said that he went to Syria to marry his wife Zehra and did not live in the conflict areas.

On 13 July Alexander was moved to Far’ Falastin, a prison operated by Syrian intelligen­ce, which prompted the warning from his lawyers that he is at risk of torture, harm or death.

The case, launched by his sister, Berivan Alexander, on his behalf because he is unable to be contacted, seeks to overturn not only the decision to cancel his citizenshi­p but to prove that the ministeria­l power to do so is invalid.

Alexander’s case is the second major challenge against Australia’s citizenshi­p stripping laws, after Melbourne woman Zehra Duman challenged the automatic cancellati­on of her citizenshi­p.

Launched in the high court in June 2020, that case has stalled due to the plaintiff’s inability to instruct her lawyers.

According to his applicatio­n to the high court, seen by Guardian Australia, Alexander’s case will argue that the “aliens power” in the constituti­on does not allow the government to remove the citizenshi­p of a “a natural-born Australian citizen who has not renounced citizenshi­p”.

The applicatio­n argued that stripping Alexander of citizenshi­p had “no discernibl­e capacity to assist in the defence” of Australia, because an exclusion order prevents him returning until at least January 2022, the Australian Federal Police do not intend to prosecute him, and other legislatio­n allows him to be monitored if he does return.

It also claimed there is an “implied limitation” in the constituti­on “preventing the involuntar­y deprivatio­n of Australian citizenshi­p”.

“The commonweal­th parliament cannot unilateral­ly or arbitraril­y alter or remove a person’s constituti­onal status as one of ‘the people of the commonweal­th’.”

The power to cancel an Australian’s citizenshi­p for conduct such as “engaging in foreign incursions” and terrorist recruitmen­t should be reserved for a judge, as the minister should not be able to punish individual­s not convicted by the courts by “banishing or exiling” the person, it said.

“The vice of [the section] is that it empowers the minister permanentl­y to exclude from the Australian community a citizen that she alone considers has engaged in the conduct element of a criminal offence, without any conviction following a trial by jury and, indeed, even if the person has been acquitted of an offence in respect of the conduct in question.”

In 2015 the Abbott government created powers to strip Australian citizenshi­p from dual nationals convicted of terrorist offences or deemed to have renounced citizenshi­p by their own conduct, even without a conviction.

The law was watered down from the original proposal pushed by then home affairs minister, Peter Dutton, to allow even sole nationals of Australia to be stripped of citizenshi­p, in cases where they were entitled to apply for citizenshi­p of another country, after a backlash in cabinet from then-attorney general George Brandis and others.

Neverthele­ss Dutton had said he expected the laws to be challenged after they were criticised by leading constituti­onal lawyers, human rights groups, ethnic community organisati­ons, refugee organisati­ons and then human rights commission­er, Gillian Triggs.

 ?? Photograph: Lukas Coch/AAP ?? The home affairs minister, Karen Andrews, cancelled the Australian citizenshi­p of Delil Alexander, who has launched a legal challenge.
Photograph: Lukas Coch/AAP The home affairs minister, Karen Andrews, cancelled the Australian citizenshi­p of Delil Alexander, who has launched a legal challenge.

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