After being in the community for over a year, a pregnant Tamil refugee and her two children were detained due to an adverse security assessment. Her husband is an Australian citizen.
Detention of refugees for adverse security assessments affects around 50 cases, less than 0.5 per cent of the applications in the last year. These cases have reached an impasse where people cannot be returned to their home country because they meet the refugee criteria, but will not be granted permanent residence in Australia because of the adverse security assessment.
These cases are now going to the High Court in a new legal challenge.
The human cost of the security process is significant. The issue about adverse security assessments based on undisclosed information may be resolved by the High Court. However delay in the security assessment process also needs addressing, as some refugees are waiting years to get any security assessment.
'Hayder' and 'Mariam' (not their real names) were found to be refugees in mid 2009 and have been living in the community for over four years. They have patiently awaited their security clearance. Every year, they pay for and supply fresh police clearances from the Federal Police.
In 2011 they had a baby and this year they had their second child.
When they make inquiries with Immigration they are told that Immigration is still awaiting the security checks from 'outside agencies'. They are living on bridging visas, and have permission to work, but some employers are not interested if they only have a bridging visa.
The long process is affecting them mentally as they cannot discover why their cases are taking so long.
The security check process is opaque. Applicants fill in a form 80, which is now 19 pages long. Ten years ago, the form was two pages. Each new version of the form adds new questions. Immigration advises people that they send the form to 'outside agencies', which we all know means ASIO.
What happens after ASIO gets the form is a total mystery. Immigration officers have told me they do not know what happens, nor why the process can take so long. Some cases are decided within months, others take years. Under changes made to migration law in 2005, onshore protection applications should be decided within 90 days. But the days of the 90-day decision are long gone.
It is possible to complain about the delay to the Inspector-General of Intelligence and Security. Complainants receive an email which states they will investigate the matter, but they will not report back to you. The best lines in the email are classic Yes Minister:
'Where we identify an issue requiring resolution, we liaise with the relevant agencies about the issue.'
Then, in bold type: 'We will not provide any other feedback but will contact you if we require any further information about the case.'
That must be very reassuring after years of waiting in detention or in the community.
The Refugee Convention provides for cases of refugees who can be excluded from protection by the Convention, but the bar is a high one — the criteria consist of crimes against humanity, war crimes or a 'danger to the security of the country'. Such cases in Australia are rare and there is a review process in theAdministrative Appeals Tribunal (AAT).
But if someone has an adverse security assessment, the refugee is unable to comment on the adverse assessments, or even see what the assessment is. ASIO is effectively making determinations which are unreviewable and non-disclosable. This is a denial of due process.
The consequences for the refugees are Kafkaesque. They potentially face a lifetime detained for reasons they are permitted to neither know nor challenge. No wonder some people are responding by self-harming, and there have been suicide attempts in detention centres. These attempts are only the manifestations of a more pervasive depression and diminishment of humanity that last long beyond the time of detention.
It is too soon to speculate on the chances of success in the High Court. However, ethically the process and its consequences are unacceptable. It violates the dignity of those affected. It will also diminish the reputation of the departments making the security assessments.
Over the years, state and federal governments have accepted that decisions of bureaucrats cannot be blindly accepted and ought to be subject to an independent review process. Adverse security reviews are possible in limited circumstances for Australian citizens, but non-citizens are excluded from even this restricted process.
Not every person who applies for a visa will undergo a security check. It would take far too long to process the several million visa applications each year. At some level there is a risk assessment of which cases require the full assessment and which do not. Those applying for protection visas are likely to be the most scrutinised, whereas someone with a UK passport coming on a visitor visa is unlikely to be checked at all.
There may be information which is highly sensitive in a security assessment, but surely there is some way the negative assessment can be reviewed and the sensitivity of the security information maintained.
This is the view of the Joint Select Committee on Australia's Immigration Detention Network. It recommends a new process in such cases with an amendment to the ASIO Act to enable review of such cases be conducted in the Security Appeals Divisions of the AAT. The Government says it is 'considering' the recommendations.
Politically, there is a balance between Australia's security, and the requirement to adhere to International Human Rights obligations. Since 9/11, the balance has swung in favour of more security checks. This is understandable politically, however for these cases the balance is weighted against the human rights obligations.
Meanwhile many people are waiting, some in detention, uncertain of their future. Even more people like Hayder and Mariam keep waiting and waiting for a resolution of their case.
The High Court or even a law change may reform the problem about non-disclosure, but further reform is needed to address prolonged delays in the security assessment process. Prolonged processing delays are adding a further level of anxiety to often traumatised people.
Kerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU and was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers.