Last night, Lateline reported on a five-year-old refugee who faced the prospect of being separated from his father forever. His father had failed an ASIO security assessment, which under current policies means he is to be detained indefinitely with no right of appeal.
According to the report, 46 proven refugees are being locked up indefinitely because of adverse security assessments, which are made in a closed, non-reviewable process. Changing this situation, without ignoring legitimate security concerns, is achievable and necessary.
The right to appeal
A report released in late March by the Joint Select Committee on Australia’s Immigration Detention Network offers some solutions. In particular, it calls for people granted refugee status, but subsequently deemed security risks, to be given the right to appeal (0).
Each year, ASIO assesses (0) thousands of visa applications for security risks. The principle behind this is valid: to prevent suspected spies, terrorists and other potential threats from entering the country. The decision to deny a visa is not taken lightly, and in normal circumstances protects national security without violating anybody’s human rights.
But it is a very different story when someone has been persecuted in their home country, travelled to Australia for asylum, endured mandatory detention on arrival, had their claim processed by the Department of Immigration and Citizenship and been found to be a genuine refugee. Deportation is untenable due to the risk of torture and death, so currently they remain detained for potentially the rest of their lives, with no right to appeal their security assessment.
The human cost
Indefinite detention is largely unprecedented in peacetime Australia and has a tremendous human cost. A Sri Lankan Tamil, (14) who was granted refugee status in August 2011 but remained held with no apparent prospect of being released, committed suicide. A teenage Kuwaiti refugee, similarly kept detained because of an adverse assessment (49), has attempted suicide (51) repeatedly. Many other refugees are currently detained indefinitely, including some with children who were born, or are growing up in, detention centres.
Former Commonwealth Ombudsman Allan Asher has noted that this is out of step with most Western democracies and characterised it as a “de facto Guantanamo Bay”.
This situation came about not through design but neglect. No specific policy had been created to deal with the situation, and it has been sustained by the overblown rhetoric of the asylum seeker debate, where both parties fear being seen as soft. Immigration Minister Chris Bowen’s response to calls for change is to simply assert that “the Government cannot and will not compromise on matters of national security.”
However, as the Joint Select Committee’s report recommends, the Government could make the assessment process reviewable by introducing an independent appeals mechanism. This would help meet Australia’s international humanitarian obligations without compromising security.
Shadow Immigration Minister Scott Morrison’s response was to describe the recommendation as “absurd” and assert that “to expose [ASIO’s] processes to that level of inquiry and review I think would compromise how they do their job”. Yet the committee explicitly addressed this concern and made clear their proposal would do nothing of the sort.
Currently, Australian citizens have the right to challenge an adverse ASIO security assessment through the Security Appeals Division of the Administrative Appeals Tribunal. This does not involve making any intelligence public. All the proposed change would do is extend this right to non-citizens in these rare cases.
This suggestion to allow appeals is not absurd and has been made by many people well-versed in security matters. When questioned by the committee, the Inspector-General for Intelligence and Security, Vivienne Thom, expressed support for independent reviews of ASIO assessments, and pointed out that her predecessor, Bill Blick, had suggested such a system in 1999.
Fixing the neglect
Even with a more accountable assessment process, there would still be some refugees issued with adverse assessments. As indefinite detention is not a justifiable or sustainable solution, the committee recommended the government explore options including community detention, bridging visas, control orders and electronic monitoring. This is a more difficult problem than making the assessment process reviewable, but not an insurmountable one.
Legitimate security concerns can be addressed without maintaining the current system, which ignores international humanitarian obligations. The current approach came about through policy neglect and is being maintained by political grandstanding, but the committee’s report offers a way out.
People proven to be refugees currently face the horror of indefinite detention thanks to decisions made in a closed, non-reviewable process. There are no compelling national security arguments that prevent changing this situation.