Indefinite immigration detention unlawful: High Court rules. Human Rights Law Centre

Quotes attributable to Professor Jane McAdam AO, Director of UNSW’s Kaldor Centre for International Refugee Law:

“Indefinite detention has always been arbitrary and unlawful under international law. We welcome the High Court’s decision today, which will mean that Australia can no longer detain people for years on end. For decades, Australia’s approach to detention has been completely out of step with that of other democratic countries. As a result of this significant decision, this will now have to change.

“This is an important and long-awaited victory for human rights.”

Indefinite immigration detention unlawful: High Court rules. Human Rights Law Centre

Indefinite immigration detention ruled unlawful in landmark Australian high court decision. By Paul Karp, The Guardian

The home affairs department believes the result could trigger the immediate release of 92 people who cannot be returned to their country of origin, including refugees and stateless persons, with the detention of a wider cohort of 340 people in long-term detention also in doubt.

Indefinite immigration detention ruled unlawful in landmark Australian high court decision. By Paul Karp, The Guardian

Stories from the "dark underbelly" of Australia's long-term refugee prisons. By Rachel Pannett , The Washington Post

MELBOURNE, Australia — Reeta Arulruban put in a video call to her son, Dixtan. Today they were making kesari — a sweet, spicy semolina dish. For a moment, they forgot their situation: A mom on the outside. A son locked up by the country he chose as his refuge.

Arulruban’s face glowed as she described the recipe, putting on a brave face although inside she was aching. Dixtan, now 26, held up the saucepan to show her the finished dish. “Yummy,” he declared.

That September afternoon marked 12 years since Arulruban arrived in Australia, fleeing persecution on a crowded boat. And four years since Dixtan was put in immigration detention here. After the call ended, she lay on her bed staring at his picture on her phone. It is like having a plate of your favorite food in front of you and being told you can’t eat it, she said. Each week she drives an hour across Melbourne for a brief, supervised visit.

Australia has one of the strictest regimes for undocumented migrants in the world. The “Operation Sovereign Borders” program — which recorded its 10-year anniversary in September — has been cited as the inspiration for British Prime Minister Rishi Sunak’s plan to “stop the boats” crossing the English Channel in search of a better life.

Similar conversations are happening across Europe. In Italy, the far-right government is increasing powers to detain and deport migrants.

Prime Minister Anthony Albanese has vowed to continue the military-led operation that turns back boats attempting to travel here. In a video posted on a government website in August, navy commander Rear Adm. Justin Jones implored people not to attempt the perilous boat journey. “You are wasting your time, your money, and ultimately your life,” he said.

Australia’s migration laws allow the government to indefinitely detain a noncitizen who does not hold a visa — including those who lawyers say have legitimate claims of asylum. Housing a person in immigration detention costs upward of $250,000 a year. But the cost of appearing “soft” on border control has helped topple governments here, and the hard-line system is rarely questioned, even when it catches out people who thought they were Australian.

More than 1,000 people are in immigration detention and 127 have been detained for five or more years, a group whose ranks Dixtan will soon join. The average stay is 709 days, and the longest-held has been there 16 years, according to official figures. Many are afraid to speak for fear of jeopardizing their cases. But several agreed to share their stories with The Post, providing a rare glimpse of life behind the barriers.

A shocking decision

In 2009, Arulruban’s husband was killed when Sri Lankan forces shelled a market where he was buying groceries. She learned after his death that he had been providing intelligence to the Tamil Tigers, a guerrilla group that fought for an independent state in northeast Sri Lanka during a 26-year civil war that ended with their defeat that year.

When Sri Lankan soldiers came to question her, she was sexually assaulted, she said, as Dixtan cowered in the next room. She fled the country, leaving Dixtan, then 15, with his grandmother. She did not know where the boat was taking her. She just needed to escape.

Arulruban planned for Dixtan to follow as soon as it was safe. But it didn’t work out that way. In 2013, the government made it effectively impossible for boat arrivals to bring their families here, relegating visa applications to the bottom of a backlogged immigration system where they stood little chance of ever being processed.

Dixtan and his grandmother were frequently harassed by officials demanding to know his mother’s whereabouts. When his grandmother died, life became even more challenging. In 2019, Dixtan flew to Sydney on a fake passport provided to him by a migration agent. The first his mother learned of his plans was when she received a call from border officials who’d detained Dixtan at the airport.

In June — just days after Arulruban, now 55, was granted a visa allowing her to stay in Australia permanently — Dixtan was given a deportation notice.

‘One of the darkest chapters in Australia’s history’

Policing Australia’s vast ocean borders has long been a hot-button political issue here, akin to debate over migrant crossings of the southern U.S. frontier.

In 2012, Australia hardened its defenses amid a growing exodus from places such as Myanmar and Afghanistan — reopening offshore detention centers on remote Pacific islands where undocumented migrants were housed while their asylum claims were processed. The policy provided the inspiration for the U.K. plan to send asylum seekers to Rwanda. (The legality of which is being tested in court.)

What is not widely known is that many of the world’s vulnerable people are locked away in plain sight, in repurposed hotels and immigration facilities in major cities, like Dixtan in Melbourne, as well as behind razor-wire fences in the Outback. The detention of tennis star Novak Djokovic for breaching coronavirus restrictions brought Melbourne’s Park Hotel briefly into the spotlight. Conditions inside have progressively worsened, making them “factories for mental illness,” according to medical experts.

“There are so many places in Australia you can hide people,” said Pamela Curr, a longtime refugee advocate. “We’re supposed to be this easy laid-back country where everything is hunky-dory. There’s a dark underbelly.”

Unlike the United States and most liberal democracies, Australia has no Bill of Rights guaranteeing liberty and the right to be treated with humanity. Successive efforts to fight the incarceration of immigrants in federal court have been thwarted — with brief legal victories capped by new legislation, or, on several occasions, challenges settled out of court when it looked as if the government might lose, according to lawyers. A new challenge will test the legality of indefinitely detaining refugees in the High Court this month.

“This is genuinely one of the darkest chapters in Australia’s history,” said Nick McKim, an Australian Greens lawmaker. “We need to hold people to account. We need to make reparations to people. And we need to make sure it never happens again.”

From one prison to another

Like Arulruban, Jhaidul, who goes by one name according to Bangladeshi tradition, had no favored destination in mind when he paid a people smuggler to ferry him to safety in 2012.

He had just spent nine years in a Bangladeshi prison for a murder he didn’t commit. The charge was pinned on him in an apparent retaliation for an episode years earlier when he defended his sister against an acid attack by local thugs. When he was eventually pardoned and released, he was forced into hiding. “I could not show my face in the area,” he said.

His boat was intercepted by Australian authorities, and Jhaidul was placed in immigration detention, where he earned the nickname “The Master” because of his chess skills. At night, he sang — recording Bollywood hits and Bangladeshi songs on the karaoke app, StarMaker.

Ten years and one day later, Jhaidul was released. He was 46 and had spent more than a third of his life locked up. An official letter, viewed by The Post, said he was permitted to remain only until his visa expired in May this year. Jhaidul got a job welding parts for the mining industry. He got his driver’s license and bought a car. But four months after his visa expired, he received a call asking him to come into the city for an appointment.

“I’m very scared to meet immigration, but I must go,” Jhaidul said over a lunch of fried chicken and rice in mid-September. He called later that day, his voice shaky. He was skipping work that evening, he said. In his anxious state he didn’t think he could operate dangerous equipment.

His original plan had been to find a place to settle and sponsor his family to join him. But while he’s in immigration limbo, reuniting with his family — a son, and a daughter he has never met as his wife was eight months pregnant when he fled — remains impossible.

Alison Battisson, a human rights lawyer, said Jhaidul’s asylum claim is strong. She suspects his release, along with a handful of other long-term detainees, is a tactic designed to prod them to return to places where their lives are at risk.

“Detention didn’t work. So they’re trying something else,” she said.

When the former corporate lawyer started acting pro bono for refugees, it was rare to find people who had been detained for more than five years. Now, eight years is a starting point for Battisson getting involved in a case.

“Detention really has been incredibly normalized, and it’s very worrying that the U.K. and others are trying to follow this philosophy,” Battisson said. “It’s a race to the bottom.”

Broken boy soldier

Battisson said many people have been caught out by the word “permanent” in their visas, unaware they could be canceled under laws tightened to make it easier to deport migrants on character grounds. Like William Yekrop.

On bad days, Yekrop has flashbacks to the day his father, a soldier in the South Sudanese civil war, was killed in front of him. He was five years old. Yekrop was taken to a rebel camp to be trained as a child soldier.

Eventually he made it out, with his mom and siblings, to a refugee camp in Egypt. At 16, he was granted asylum in Australia. But without any counseling to help deal with his childhood trauma, he turned to alcohol and drugs. That led to bouts of jail time; the longest 13 months.

In 2014, Australia canceled his visa and Yekrop was taken into immigration detention. A refugee tribunal that year found he had a “well-founded fear of persecution” in South Sudan. The tribunal has the power to review some visa decisions, but it is the country’s immigration minister who gets the final say in a system advocates say gives them “godlike powers.”

Yekrop left South Sudan before the war-torn country became independent and has been told by officials there that he has little prospect of regaining citizenship. The decision to cancel his visa leaves him effectively stateless, and in limbo, like the others. His family, including a 14-year-old daughter, live here. But that doesn’t stop Australian officials from routinely asking him if he wants to go back to North Africa.

In prison, Yekrop undertook drug and alcohol counseling. He cleaned up his act. He worked in the prison kitchen. In immigration detention on Christmas Island, a remote Australian outpost in the Indian Ocean, he was locked up 22 hours a day, surrounded by razor-wire fences bordered by jungle. In September, authorities flew him in handcuffs to Yongah Hill Immigration Detention Center in the Western Australian wheat belt.

Yekrop’s only escape from the Outback haze is exercise. Approaching 40 with the figure of a young man, Yekrop wakes at 6 a.m. for cardio and dead lifts, and runs boot camps. “I’ve been locked up for 10½ years now. If not for the exercise, maybe I’d give up long ago.”

Stories from the "dark underbelly" of Australia's long-term refugee prisons. By Rachel Pannett , The Washington Post

Australia asked six countries to resettle stateless Rohingya man after he began high court challenge, lawyer says. By Paul Karp, The Guardian

The Australian government asked six countries to resettle a stateless Rohingya man three years after his visa refusal was finalised and after he began a high court challenge against the legality of indefinite detention.

Australia asked six countries to resettle stateless Rohingya man after he began high court challenge, lawyer says. By Paul Karp, The Guardian

Lawyers welcome government’s decision to settle negligence case of refugee infant detained on Nauru. By Mostafa Rachwani, The Guardian

The child became sick in 2018 when two years old, but it took a court order to fly her to Australia for treatment.

“The condition and treatment of children in immigration detention is a national shame. That the commonwealth had to be taken to court to ensure this child received medical care is astounding.”

Lawyers welcome government’s decision to settle negligence case of refugee infant detained on Nauru. By Mostafa Rachwani, The Guardian

Permanent residency gives Ballarat's Para family rights to work, study, healthcare and certainty for the future. By Rochelle Kirkham, ABC News

Neil Para and Sugaa Neil say they feel free for the first time in a decade. 

The couple and their three children were granted permanent residency in September, after living in Australia for more than nine years with no visa and no rights to work, education, or Medicare.  

Permanent residency gives Ballarat's Para family rights to work, study, healthcare and certainty for the future. By Rochelle Kirkham, ABC News

Pakistan demolishes homes, raids neighbourhoods to force millions of Afghans to leave. By Toby Mann and Wires, ABC News

Returning Afghans have nowhere to go and the agencies said they fear for people's survival and reintegration in a country overwhelmed by natural disasters, decades of war, a struggling economy, millions of internally displaced people and a humanitarian crisis.

Pakistan has hosted millions of Afghans over the decades, including those who fled their country during the 1979-1989 Soviet occupation.

At least 600,000 undocumented Afghans fled into Pakistan after the Taliban takeover in 2021.

Pakistan demolishes homes, raids neighbourhoods to force millions of Afghans to leave. By Toby Mann and Wires, ABC News

'Golden visas' are known to attract dirty money around the world. Why does Australia still offer them? By Linton Besser, ABC News

Thus far, a staggering 26,000 foreign nationals have been granted permanent access to Australia not because they were a great fit for the community and not because they brought with them much-needed skills or a dose of high culture. They were granted this precious gift simply because they were loaded.

'Golden visas' are known to attract dirty money around the world. Why does Australia still offer them? By Linton Besser, ABC News

PNG to investigate corruption claims in Australia-funded refugee program. By Ben Doherty, The Guardian

After allegations from a whistleblower inside PNG’s immigration authority that millions of dollars had potentially been misused, PNG’s deputy prime minister, also the minister for immigration, John Rosso, has ordered an audit into where the money has gone.

In a letter sent to Rosso, the whistleblower alleged widespread corruption within the program – particularly surrounding the hiring of cars.

He claimed private vehicles were “cross-hired” so as to disguise the beneficiaries of contracts, and relatives of senior officials were allowing their private vehicles to be hired through a front company, then claiming a personal benefit.

The whistleblower also alleged that contracts were improperly awarded, without an open tender process, and given to companies with no experience providing the services required.

PNG to investigate corruption claims in Australia-funded refugee program. By Ben Doherty, The Guardian

The Saturday Paper Editorial: Reopening Nauru

The Saturday Paper

Editorial: Reopening Nauru

OCTOBER 28 – NOVEMBER 3, 2023  |  No. 473

The disclosure contained fewer syllables than the number of people trapped within it. The line was as short and unwilling as a secret: “There are currently 13 on Nauru.”

Speaking at Senate estimates, Michael Thomas, a first assistant secretary in the Department of Home Affairs, explained that 11 of those people arrived last month. “Those new arrivals were taken to Nauru in September this year.”

Thomas would not say where the people were from. He refused to say if any of them were children. “Just to characterise where the process is at: the group, at the moment, are going through the initial reception processes, which include identity, immigration, health and quarantine processes, managed by the government of Nauru.”

There was less detail than even the Coalition offered during its last term. The people involved have no nationality, no gender, no age. They are faceless, a non-people invented by this dreadful system.

“At this stage,” Thomas said, “providing more detailed information on the cohort may have implications for our international relations with Nauru and for individual safety and privacy issues as well. So I’d like to take that question on notice so we can provide you with as much detail on the cohort as is possible and appropriate, considering those factors.”

In the same hearings, it became clear an unknown number of people had been brought to Australia from Nauru and “detained as unlawful non-citizens”. They are locked up somewhere, with the government unable to say why.

“To be released into the community requires ministerial intervention to either grant them a visa or place them into residence determination,” Thomas said, “so a risk assessment process is undertaken at that point to make a determination about the best placement for them.”

Labor promised this brutality during the campaign. It long ago abandoned the humanity of refugees. One of the Albanese government’s first acts in office was a boat turnback.

In the past, politicians spoke of deterrence. They pretended these terrible decisions were made to prevent worse ones. They presented a false choice between torture and drowning.

The argument has always been strained, a sly justification of the country’s darkest impulses. It is even less credible when the torture is done in secret. The whole point of deterrence is that it is conspicuous. Without that, it is only cruelty.

The politics of this is simple. Labor continues the perversion so the Coalition cannot accuse it of ending the perversion. It is a kind of moral spiral. James Paterson, the shadow minister for Home Affairs, could scarcely contain his excitement. “Once again Minister [Clare] O’Neil and Labor have shown that they can’t be trusted to keep our borders safe,” he said in a statement, adding: “Only the Coalition can be trusted to keep our borders safe.”

The reopening of Nauru is the reopening of one of this country’s saddest wounds. It is a reminder neither Labor nor the Coalition has any real plan for refugees. All they have is a numb agreement to keep doing what they have spent the past few decades doing, trading lives for the narrowest of electoral gains.

This article was first published in the print edition of The Saturday Paper on October 28, 2023 as "Reopening Nauru".

A teenager is among the first boat arrivals sent to Nauru in nine years. By By Maddison Connaughton and Paul Farrell, ABC News

A 17-year-old boy is among a group detained inside the regional processing centre on the remote pacific island of Nauru.

He is one of 11 people, all Tamil speakers, who were taken to Nauru on September 7 under the offshore processing system set up by Australia.

These are the first people transferred to Nauru since 2014.

A teenager is among the first boat arrivals sent to Nauru in nine years. By By Maddison Connaughton and Paul Farrell, ABC News

2023 Kaldor Centre Conference: Learning from the future: Foresight for the next decade of forced migration. In person at UNSW, Sydney on 20 November 2023

We wanted to remind you that ticket prices will go up soon for this extraordinary event, ‘Learning from the future: Foresight for the next decade of forced migration’. This is a one-time opportunity for you to gather with world-leading experts cutting through today’s uncertainty to identify possibilities for positive change in the next 10 years. 

Don’t miss this event – and don’t miss the 30% savings offer that must end next week.   

2023 Kaldor Centre Conference: Learning from the future: Foresight for the next decade of forced migration. In person at UNSW, Sydney on 20 November 2023

‘Unjust and cruel’ lack of clarity still hangs over 64 refugees exiled in PNG. By Daisy Dumas, The Guardian

PNG’s chief migration officer, Stanis Hulahau, said the 64 refugees and non-refugees would leave PNG within weeks, with the majority of those to be resettled in New Zealand. Sixteen may be sent to Australia for medical treatment, he said, after discussions with his Australian counterparts.

But while government sources in Australia confirmed Hulahau’s outline, questions by the Greens senator Nick McKim to Department of Home Affairs officials on Monday revealed the Albanese government is far from providing assistance to the refugees.

‘Unjust and cruel’ lack of clarity still hangs over 64 refugees exiled in PNG. By Daisy Dumas, The Guardian

Labor accused of ‘outrageous secrecy’ as border force confirms 11 asylum seekers sent to Nauru. By Paul Karp and Eden Gillespie, The Guardian

The Australian Border Force has confirmed it sent 11 asylum seekers to Nauru in September, the first transfer to immigration detention on the Pacific nation in nine years.

The evidence to Senate estimates on Monday from the head of operation sovereign borders (OSB) confirms a report in Guardian Australia revealing the Albanese government sent asylum seekers to Nauru just months after the last people were removed from detention on the island.

Labor accused of ‘outrageous secrecy’ as border force confirms 11 asylum seekers sent to Nauru. By Paul Karp and Eden Gillespie, The Guardian

Papua New Guinea Refugees to Begin Leaving ‘within weeks’ after Australian Funding Runs Out. By Ben Doherty, The Guardian

The final group of refugees still held in Papua New Guinea a decade after being exiled there by Australia will begin leaving “within weeks”, the country’s migration chief has committed, saying the majority will be resettled in New Zealand, while those suffering acute health problems will be brought to Australia for treatment.

Papua New Guinea Refugees to Begin Leaving ‘within weeks’ after Australian Funding Runs Out. By Ben Doherty, The Guardian