October 05, 2012
The High Court has found the denial of a protection visa to a Sri Lankan man with an adverse security assessment from ASIO was not valid.
The 36-year-old man had been deemed a refugee but was unable to secure a protection visa because of a regulation associated with the ASIO assessment.
He has been detained for the past three years and is one of 55 other refugees in a similar situation.
The man argued he had been denied procedural fairness in the assessment.
The High Court has rejected that, but has ruled the regulation preventing him getting a protection visa is invalid, because it is at odds with the Migration Act.
The Commonwealth does have the right to indefinitely detain refugees if ASIO makes an adverse security assessment against them.
If refugees have a negative security assessment they are also not told the reasons why.
In today’s ruling the judges said it was unlawful to deny a visa without due judicial review.
The court effectively told the Government that it had acted outside of the law.
Today’s case was brought by David Manne, the lawyer who successfully challenged the Federal Government’s Malaysia Solution in court.
Mr Manne attacked several fundamental powers of ASIO and the Commonwealth, including the right of the Commonwealth to indefinitely detain refugees.
He says his client should urgently be released from detention.
“Our client has now been detained for almost three years in circumstances which have caused him tremendous and lasting damage. It is an absolute tragedy,” he said.
“He should be granted a visa urgently, a refugee visa, and be granted his freedom.”
Mr Manne says the court’s decision will have ramifications for the other 54 people held in the same situation.
“We call on the Government to now ensure also that this decision doesn’t involve further legal proceedings but rather that they move that there is proper processing under law of all the cases not just our client, and that they be freed,” he said.
Greens Senator Sarah Hanson-Young say the decision shows there needs to be more scrutiny of refugee security assessments.
“This unlawful detention has only made their trauma so much worse,” she said.
The Federal Government says it is carefully reviewing the High Court’s decision.
In a statement, Attorney-General Nicola Roxon said ASIO issues only a very small number of adverse security assessments.
Sri Lankan-born Yogachandran Rahavan and his family are among those indefinitely detained in Australia.
He was granted refugee status after he came to Christmas Island by boat, but a negative security assessment from ASIO means he and his wife and their three children have been stuck in detention at Sydney’s Villawood centre for the past three years.
He says his children, aged eight, five and two, struggle with their situation.
“All the times they are asking when are we going out? When are we going out? As a parent we don’t have any answers to tell them,” he said.
“Those are the questions also put us into the lap of depression. It’s difficult to come out sometimes. If we know something, we can tell something to them but how can we tell the wrong answer to my kids.”
Mr Rahavan can only speculate as to the reasons why he and his wife were given a negative security assessment.
“We had lived in north part of Sri Lanka that is controlled by LTTE (Liberation Tigers of Tamil Eelam) for more than 15 years,” he said.
“Fifteen years they run the shadow government, we were under there and pay the taxes. I think that’s why we got a negative assessment. I have no any ideas why we got a negative assessment and why we are here for three years.”