I come to dread the phone calls. But, even when I am not there to take them, the messages haunt me. An ominous flashing light on my phone, a few buttons pressed; her ghostly voice, barely audible, in my ear.
‘Elizabeth Lawyer, this is R. Please be calling me.’
I sigh. I arrange an interpreter and try not to worry.
When I speak to her, a few days later, I have nothing to report, as usual. I cannot explain to her why she is detained; I cannot tell her when she will be released. I have no news for her about her prospects for freedom. We just continue to wait.
R is a Sri Lankan refugee. She has fled her home in the north and escaped a well-founded fear of persecution. She fulfils all the criteria for the minister for immigration to grant her a humanitarian visa. But she is stuck in purgatory, indefinitely.
In 2010, I started work on my firm’s cases for Mohammed Sagar and Muhammad Faisal. With American peace activist Scott Parkin, they formed an unlikely trio: some of the first people to confront the surveillance state’s power in the context of refugee law.
All three were recipients of adverse security assessments from ASIO. For Parkin, this meant the cancellation of his tourist visa and deportation back to the US. For Sagar and Faisal, the consequences were far more serious: indefinite detention on Nauru. The Refugee Convention includes the principle of ‘non-refoulement’ which prevents the return of a refugee to the country from which they have fled. Both Sagar and Faisal were found to be refugees, who could not be returned to their home country. But as ‘non-citizens’, with ASIO blocking their visas, they could not be released.
We applied for judicial review on behalf of the three.
Judicial review is the separation of powers in action; it allows the courts to assess decisions made by the executive arm of government (in this case, ASIO). The legislature does everything it can to resist, with statutes routinely decorated with clauses supposedly granting immunity from review to executive decision-makers. But courts do not often willingly accept limitations on their powers. With the legislature increasingly pliant to the security state, the courts are often the last bastion of rationality.
By the time I joined their legal team, Faisal had made it into Australia, after nearly five years on Nauru. He’d suffered a nervous breakdown and been evacuated to a Brisbane hospital for treatment. Though he’d become an Australian citizen – ASIO’s concerns somehow mysteriously evaporating – the original adverse assessment remained on his record.
Sagar had been resettled in Sweden. The Swedish authorities had no concerns about him and, unlike Australia, were willing to make good on the spirit of the Refugee Convention.
Parkin had bowed out of the proceedings. While he understood the political significance of the case, the adverse security assessment had only had a relatively minor impact on his life across the Pacific. He was – and presumably still is today – unwelcome in Australian territory.
The application for review of the decision by ASIO faced significant difficulties. Crucially, the men were denied access to their assessments. None of them were permitted to know what they had supposedly done wrong, nor given an opportunity to answer the allegations.
ASIO does not appear anywhere in the migration act. It hovers above, a ghostly presence behind the minister and department. It is a regulation that the minister will not grant a visa where ASIO has deemed that person a security risk. Though in theory the minister still decides, he has never exercised that discretion against the advice of ASIO. In effect, an executive arm of government – unelected, unaccountable – has the power to make a decision about someone, without trial or any other opportunity to test the evidence. An adverse decision thrusts the subject into the most desperate of legal states: indefinite detention.
Administrative detention is not supposed to be punitive, but it hard to understand how it could be interpreted as anything else. In the United States, the term is used for detainees in Guantanamo: there are still many prisoners who the US admits it is unable to charge but, perversely, is unable to release. They are also indefinitely detained in administrative detention. Villawood and Guantanamo may be oceans apart, but legally, they are uncomfortably proximate.
The hearing for Faisal and Sagar did not last long. ASIO provided no evidence as to why they were considered to be security threats. Both men led evidence that they had done nothing that would be of interest to a security agency. Julian Burnside QC, the pro bono barrister (a reassuring combination of calm logic and confident rhetoric, highly respected by clients), had spent five years on the case in various capacities, tirelessly writing to and on behalf of the men.
Justice Tracey’s judgement started promisingly, recognising that ‘it is not consistent with the rule of law for any government agency, including security organisations, to be immune from judicial review’.
But it was not long before that conclusion was set to one side.
‘The courts have acknowledged the need for a cautious approach,’ he wrote, ‘lest their actions might harm national security interests.’ Thus without seeing the information relied upon by ASIO, and without any further evidence led to justify that its decisions were lawful, Justice Tracey found that ‘security considerations may effectively reduce to a bare minimum the obligations of procedural fairness which fall on decision-makers’.
Indefinite detention has a profound effect on people.
‘You can’t dream,’ Faisal told me of his time in detention, ‘they keep you always thinking about your freedom.’
His plight, he said, is like the fable he was told when he was small. It is about a bird with a heavenly singing voice. The narrator warns against catching the bird and putting it in a cage to enjoy, since once imprisoned, the bird stops singing. Only when you open the cage door will the bird start singing again.
This is because he is singing, as Faisal put it, ‘for his life’, not for his jailer.
Then he looked down.
‘They open for me the doors,’ he said, ‘but I can’t sing.’
When I had to tell Faisal about the decision, he was in Brisbane. I spoke to him by video link from Melbourne. He was profusely thankful to Maurice Blackburn and Burnside for representing him.
But he was, nonetheless, devastated. With the adverse finding still on his record, he did not feel at home in his adopted country.
We all did our best to console him. We tried to explain he should not give into such thoughts, that he should start the long process of rebuilding his life.
And, to his eternal credit, he has.
When Faisal and Sagar lost their case, there were less than two dozen people in indefinite detention. There are now nearly sixty. Most are Sri Lankan, fleeing an inconveniently hostile regime that the Australian government would prefer to ignore.
People heard about the decision and started ringing the firm. They needed help because they were in a similar limbo, unable to understand a process that had left them in detention indefinitely. Families were split in two; children were growing up behind barbed wire.
There was nothing a lawyer could do for these people. There were no holes to pick apart because the process was hopelessly opaque. To tell someone who is so heartbreakingly vulnerable that you can offer no assistance, in spite of the obvious injustice, stings like salt water on a wound. Hope seeps out of you, leaching away any faith in the rule of law.
I found it very difficult to know what to say.
I wait for R in the entrance to the residential housing section in the Villawood detention centre. She arrives, weighed down by her four-year-old son, M, who is slung around her waist. He is fast asleep, mysteriously exhausted, though it is only three in the afternoon. She greets me, politely shakes my hand, tries to bow despite her child and leads me to her house.
R was found to be eligible for a humanitarian visa after a short time in custody and was transferred to community detention in Melbourne – until, one day last November, she was called in for a meeting and unexpectedly sent to Villawood. She’d received an adverse security assessment from ASIO.
The assessment is a genuine mystery to R and to everyone she speaks to about it. She is tiny – she certainly does not look like a threat to national security. She has never been a member of any political party and cannot think of anything that she might have done. She is from the north and fled the war, and this seems to have brought her to the attention of ASIO.
We discuss M. His father died in the war. He was travelling on his motorcycle during an air raid and never returned home. Since that time, M has spent most of his short life in refugee camps. Once, she tells me, during an air raid, R dropped what she was carrying in the confusion. She set M down and went back to collect her possessions. When she turned around, M was gone. She gets flustered explaining this. She quickly found him, gathered him up and kept running, but she has resolved never to let him out of her sight again.
I explain to her that Maurice Blackburn thinks this policy of indefinite detention is worth challenging. We think it could be unconstitutional. It is something we had pondered for a while but we had been waiting for the right client to come along. R, with four-year-old M, was that client.
She nods politely. She understands. She is nervous but politely desperate to be free.
We set about preparing her application and, in the meantime, a person in a similar category makes the same application to the High Court. The hearing is expedited because of the gravity of indefinite detention. It is heard within the month.
I explain to R that her best bet is to await this outcome. Any application made on her behalf would be stayed until a decision is handed down anyway. The legal team is a good one and the expedited hearing is a positive sign. It won’t be long until a decision is made and, if it goes our way, R and M might well be freed. If it doesn’t, we can put in an application on her behalf. The presentation from a mother and child might be more convincing, since the High Court has a residual jurisdiction to make orders in the best interests of a child. It is difficult to see how it is in the best interests of M to leave him in Villawood indefinitely or release him without his mum.
R understands. But such uncertainty is hard. Every conversation we have ends in a flood of tears. Every two weeks, almost without fail, she calls. I tell her the same thing.
‘Please be patient, you are doing so well. This can’t last forever.’
The calls continue. I cannot understand why the High Court takes so long. It is as though these people have been left behind, floating at sea above depths of uncertainty and fear.
When I see R next, the detention centre is quite cheery. The sun shines on the rugged lawn; there are people dressed in costumes, some kind of performance art. There are half-eaten cakes, sausages and loaves of bread.
‘So, what’s going on?’ I ask, ‘did you guys have a barbeque?’
‘No,’ she replies, smiling, ‘it is a birthday. One of the kids.’
The whole facility seems relaxed. It is like a housing estate, with a common room where people are playing games, watching TV or chatting. Kids tear around, chasing each other.
There are only small reminders that this is a place of detention. Phones are taken away upon arrival. Doors are locked and permission must be sought to open them. I remember what Faisal told me about his time in detention.
‘They call them processing centres, but they are not processing centres. It is a prison.’
He’s right. It is not long before R is in tears.
She understands the need to wait until the High Court has made its decision and she appreciates that we are doing all we can. I ask her if anyone from the department has discussed voluntarily returning to Sir Lanka and whether she has ever thought about this.
She looks at her hands in her lap.
‘Hell,’ she says quietly, ‘it is hell for us there. I think I would rather die than go back.’
Stories of people returning are commonplace, sometimes because of money, sometimes for their sanity. Even though asylum seekers who arrive here are, almost by definition, resilient, the years of waiting wears people down.
It is what, I imagine, detention is supposed to do.
When I ask her how she is feeling, the calm melts. Heavy tears roll down her cheeks as we talk about her worries for her son. She is concerned he is not going to recover from the experience.
Other people come and go, R tells me, and it is difficult to explain to M why they must stay.
She explains how before, when they lived in community detention before the assessment, M used to play cricket and go swimming, but now that they are back in the centre he is not permitted to participate in activities out of school hours. He is accompanied to school each day by a Serco officer.
When I speak to M, he is full of attitude.
‘How many runs did you make last time you played cricket?’ I ask.
‘Five,’ he replies.
One of his mouthy little buddies pushes past to proclaim, ‘I made a hundred!’
M’s eyes light up. ‘Me too, me too – I made a hundred too!’
‘Oooo, that’s a lot of runs!’
By the time I leave, the figure has escalated to two hundred.
I try to reassure R that M seems well. He’s clever, naughty, quick-witted and charming: basically, a terrific kid coping with a difficult situation.
She nods but says that at night, back in her house, he often cries. He does not understand why he remains here while his friends live on the outside: growing up free, swimming, making centuries.
R says that there are three families in the centre because of adverse security assessments. Because the parents can’t be given a visa, the children remain in detention. One family here has three children: all, because of their parents’ adverse assessments, indefinitely detained.
‘The birthday today,’ she explains, ‘was the second birthday for their youngest child.’
I think for a minute and realise I know of this family. I remember when they got their assessments. The mother was pregnant when they arrived in Villawood. (I’ve since been told that the child was apparently conceived on Christmas Island and they were then brought to Villawood, but I have no way of verifying this).
The High Court finally hands down its decision on the case we’re waiting for: seven lengthy judgments, seven sets of complex reasons and seven different views about the situation of R and her fellow detainees. There is not much on which they seem to agree.
It is, in one sense, a victory. The court strikes down the regulation that prevents the minister from granting a humanitarian visa to a refugee solely on the basis of an adverse security assessment from ASIO.
Yet the court also recognises that the Australian government is not required by law to give asylum to someone even if they come within the definition set out in the Refugee Convention. And then there’s a silence. There is nothing further; there’s no explanation of what comes next.
It seems that no-one will be released but the government will have to demonstrate the basis for keeping them in detention. The murkiness around the legal position persists.
I have no idea how to explain this to R. I dread the thought of telling her how the legal system is still, inexplicably, failing her.
Finally, after years of suffering by a steadily expanding group of refugees, the Government appoints a former Federal Court judge to review the decisions by ASIO in response to the High Court’s decision. But the boundaries of such a system of review are yet to be fully tested and there are no guarantees.
We must plan our next move, try to find ways to end the imprisonment of these people, while protecting society more generally from arbitrary, indefinite detention. Administrative detention is, after all, a highly effective form of social control. Its absorption into our legal system has immense and alarming potential. The story is not over yet.