'They are victims': the Indonesian minors jailed in Australia and their five-year legal battle
For Indonesian lawyer Lisa Hiariej, taking on the Australian government has been a bit like waiting for Godot.
It is almost five years since she decided to take legal action on behalf of 115 Indonesians she alleges were wrongly incarcerated as minors in adult prisons and detention centres across Australia. In that time, not once has a government representative showed up to meet her about the case.
At first, Hiariej says, she sought compensation through mediation but, after repeated summons were denied, and a FOI request rejected, she decided to take the government to court, suing it for $1.3m in a class action lodged in Indonesia.
Somewhat improbably, the central Jakarta district court agreed to hear the case but at each hearing since February “the Australians” have failed to show.
In May, a letter detailing the “doctrine of sovereign immunity” was delivered in court before Hiariej arrived. Drafted by a Jakarta law firm, the letter suggested the Australian government agencies being sued again had no intention of appearing. The case comes to court again on Tuesday.
“September 19 is the last call for the Australians,” Hiariej told the Guardian from a Jakarta cafe. “But even if they don’t come the trial will continue, with or without them.”
Hiariej argues her clients were minors and were lured into working as crew on boats ferrying asylum seekers to Australia. Once arrested by Australian authorities, she says, they were subject to controversial and since discredited x-ray tests that incorrectly determined they were adults.
At the time Australia adhered to a policy that members of peoplesmuggling crews found to be minors should be returned home. Instead, Hiariej says, her clients were detained for between six months and almost three years, 34 in adult jails and 81 in detention centres. The youngest, she says, having chased down all their birth certificates, was only 14.
Hiariej is suing four government agencies for compensation – the Australian federal police, the Department of Immigration and Border Protection, the commonwealth director of public prosecutions and the attorney general’s department.
The Australian foreign affairs department said in a statement it respected the Indonesian judicial system but did not recognise the court’s jurisdiction in the matter and would make no further comment: “In accordance with established legal principles, Australia has advised the court that as a sovereign state, its agencies are not subject to the jurisdiction of the court.”
Hiariej says her clients should not be treated as people-smugglers. “They are victims, not criminals,” she says. “OK, they broke the law against people-smuggling. Yes, but they didn’t know what they were doing. They are uneducated, you know, some can read, some can’t. They are really super poor. Why didn’t Australia just let them go?”
Hiariej argues that her clients, mostly from parts of Indonesia’s underdeveloped east, such as West Timor and its surrounds, were tricked into working for peoplesmuggling syndicates, told they would be ferrying tourists or transporting goods and sometimes offered the equivalent of six months’ pay.
Faisal Arysad, now 25, was 15 when he accepted an offer of Rp15 million, more than half a year’s pay, to ferry “tourists” from his home town of Kupang to Java. Intercepted en route, he was taken to a detention centre in Darwin, where an x-ray test showed he was an adult.
“They [the authorities] said, ‘If you are really underage, where are your documents to prove it? You can say anything you like but we need proof.’”
Arysad was then transferred to Arthur Gorrie jail in Brisbane.
“I was scared,” he says, “I cried for a week straight. I just wanted to go home. I woke up every morning and cried.”
In the nine months that Arysad was detained, his lawyer had travelled to Kupang to obtain his birth certificate. When it was shown to the court and his true age was revealed, Arysad was told he was going home.
Days before she is due back in court, Hiariej reels off other details of the case in rapid fire, appearing at once exhausted and energised by a recent ruling she believes could have strong bearing on her claims.
In late July the court of appeal in Western Australia ruled that charges against Indonesian national Ali Jasmin constituted a “miscarriage of justice” and the x-ray tests used to determine his age and subsequent incarceration were “inappropriate, inaccurate and misleading”.
It is now believed Jasmin was only 13 when he was picked up by the Australian navy on an asylum seeker boat in 2009. After pleading guilty to charges of people-smuggling, he spent almost three years in Perth’s maximum security Hakea prison.
Jasmin is not her client but Hiariej believes that, if a court can deem his treatment unjust, the same x-rays tests that led to her clients’ detention should be viewed in the same light.
Hiariej was born in Indonesia but is a permanent resident in Australia. It was a 2012 visit to one of her clients at Sydney’s Silverwater jail that led her into this uncertain legal battle.
Working with an Australian law firm, she was representing an Indonesian man charged with peoplesmuggling who claimed that an Indonesian minor, Muhammad Rasid, had been wrongfully detained in the same jail.
She met Rasid and four others soon afterwards at Villawood detention centre, where they had been transferred while they waited for their flights home to be arranged.
“It was their idea to bring it to the court,” she says. “They found out that they were not in the wrong, that they were under age and that is why they were going home.”
Hiariej agreed to help and from there her new clients rallied, contacting all the other Indonesians they believed had been wrongly detained. Before she knew it, her client list had ballooned from five to 115.
Working pro bono, Hiariej says she has poured $100,000 of her savings into the case because she believes in their fight. Many have been traumatised by being held alongside convicted murderers, paedophiles and drug dealers, she says.
One minor, she says, was particularly terrified after sharing a cell in Blacktown jail with a man who had murdered his whole family.
“He was in that same room and he couldn’t sleep,” she says. “He was just thinking, ‘Oh my god, maybe he will kill me.’ That was very stressful for him.”
Another allegedly returned home only to find his family had already performed his burial rites. Because he had been gone so long, they believed he had died at sea.
If Hiariej wins the case, the $1.3m in compensation will be divided up. Even a relatively small amount for each client will go a long way in Indonesia, providing much-needed financial help for them to finish school or start a small business.
“I just want justice for them,” she says. “If I don’t fight for them, who will?”