ASIO’s refugee warn­ings re­pealed

As ev­i­dence emerges of Scott Mor­ri­son’s in­ter­fer­ence with ASIO’s refugee as­sess­ments, fig­ures show ev­ery warn­ing given by the agency since 2012 was ul­ti­mately re­vised down. Karen Mid­dle­ton re­ports.

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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 twoyear 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 peo­plesmug­gler’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 at­tor­neygen­eral’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 peo­plesmug­gling, 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 ev­er­tight­en­ing 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.

KAREN MID­DLE­TON is The Sat­ur­day Pa­per’s chief po­lit­i­cal cor­re­spon­dent.

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