Stateless refugee facing indefinite detention

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The Australian government has accepted that a stateless refugee — detained since arriving as a child in 2013 — faces indefinite detention, after taking over two years to reject his visa application.

Ahmad ShalikhanDespite facing no criminal charges, Ahmad Shalikhan, 21, was refused by Immigration Minister David Coleman, due to a risk he would 'engage in criminal conduct in Australia', thus deeming him to have failed the character test under the Migration Act.

Shalikhan's legal team will appeal the decision. 'It is unacceptable that someone who arrived as a child, and has various cognitive difficulties, should be subjected to detention for this long, and that the government could consider indefinite detention for him,' said director of Human Rights for All, Alison Battisson.

According to Coleman's statement dated 3 January 2019: 'In light of the serious nature of the potential harm, I have found that Mr Shalikhan represents an unacceptable risk to individuals in the Australian community'. This outweighed other considerations including 'Australia's international non-refoulement obligations, the prospects of indefinite detention of Mr Shalikhan and its possible effect on his mental health, and the impact of a refusal decision on his family'.

On 13 February 2019, the High Court of Australia dismissed the case of an allegedly stateless asylum seeker, who was attempting to challenge Australia's system of indefinite detention. After questioning his credibility and discussing the mystery surrounding his identity, the court unanimously found such a challenge 'did not arise'. Known as 'plaintiff M47', the man, in detention for over nine years, was also represented by Battisson.

'We didn't win and we didn't lose — we drew,' she said. 'This means we can keep fighting for M47, if he wants, and there is space for other detainees to bring similar challenges to their lengthy detention. [This case] showed us just how high the bar is set to win freedom. Unfortunately, nine years on its own is apparently not enough.'

A Faili Kurd, who fled Iran by boat aged 16 with his mother, Shalikhan has been detained since arriving on Christmas Island in August 2013. Suffering from a developmental disorder and mental health issues exacerbated by his father's death in Iran, he has in the past attempted suicide and displayed volatile behaviour.

 

"While no formal punishment was ordered, the incident continues to haunt him, the Minister taking it into consideration 'on the basis that his violent conduct ... has been proven in court'."

 

The Faili Kurds have long been persecuted in Iran as an ethnic minority. Both Shalikhan's mother and older brother have been recognised as refugees by Australia, his mother granted a five-year SHEV in 2016, while his brother, who fled earlier, has permanent protection. Shalikhan too was able to prove a well-founded fear of persecution in Iran, Australia recognising him as a refugee in 2016. This means Australia is legally obliged to protect him and cannot forcibly return him to a place of harm.

In 2014, however, as a 17-year-old minor, he was charged with two counts of assaulting a public officer. The offences were resolved by the Western Australian children's court, which issued him a caution and noted 'all criminal matters are finalised'. While no formal punishment was ordered, the incident continues to haunt him, the Minister taking it into consideration 'on the basis that his violent conduct ... has been proven in court'.

Moved to detention centres around Australia, his education and social development were disrupted. Having only completed year ten, he has not been allowed access to education since turning 18 — despite repeated requests — and has languished in Sydney's Villawood Immigration Detention Centre since mid-2016.

People with disabilities are particularly vulnerable in detention, Battisson said. 'Although no one should be administratively detained for seeking asylum, it is particularly unsuitable, and cannot be made suitable, for those with disabilities.'

Shalikhan has accepted his earlier behavioural issues. 'I don't want to be an old man still in detention ... I have said things while here but this was all due to the frustration of being in detention. I wouldn't do any of the things talked about ... I want to live in Australia. I will not be a threat to the Australian community. I am a good person.'

Last year, Battisson submitted a complaint on his behalf to the UN Working Group on Arbitrary Detention (WGAD). In December 2018, it released its opinion, determining the Australian government was in breach of five articles of the Universal Declaration of Human Rights and four articles of the International Covenant of Civil and Political Rights. It recommended he be immediately released and accorded an enforceable right to compensation. It also called for an investigation into the circumstances surrounding his deprivation of liberty and for appropriate measures to be taken against those responsible for violating his rights.

In its third report on his incarceration, tabled in October 2017, the Commonwealth Ombudsman noted 'psychiatrists have continuously advised that as a young and vulnerable person', his 'ongoing detention is detrimental to his mental health and recommended ... he be released ... with mental health support and enrolment in an educational course'.

While the Minister accepted that should he be released, Shalikhan would have the support of his family and the NSW Health Refugee Service, the government maintains this is still outweighed by the risk he 'would engage in criminal conduct in Australia'. But while most criminals serve a fixed term, with even murderers sentenced to life imprisonment often eventually released, our government is seemingly still prepared to condemn stateless refugees to indefinite detention.

 

 

Shira SebbanShira Sebban is a Sydney writer and editor, passionate about exploring the challenges life throws at us through her writing. A former journalist, she previously taught French and worked in publishing.

Topic tags: Shira Sebban, asylum seekers, detention

 

 

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Existing comments

And the blame for all this goes way back to Keating, Nick Bolkus, Gerry Hand and the ALP when they panicked over the arrival of Cambodians who didn't agree that the Khmer were just naughty boys. Successive high courts have upheld the right of the state to lock up innocent people and throw away the keys without ever asking if it fits with human rights law because we refuse to have a human rights charter.
Marilyn | 23 February 2019


This man is not alone in his predicament. There are a group of Kurdish men who arrived by boat who for some so far undivulged reasons remained in long term detention- some for 8 years. These lost souls never saw freedom. What was common was a background of refugee flight with parents from Iraq when they were set upon by Saddam Hussein- some as babies and some born on arrival in Iran. In Iran they were denied education and despised. They lived in poverty and when old enough worked as day labourers for a pittance. Basiji and Iranian police always at the ready to pick them and beat them. Often as a result of these attacks they fled Iran and wound up, some after a very circuitous journey in Australia. These young men had been denied education and so were often illiterate and did not know how to present their cases. After years in detention being humiliated and bullied, their mental state has deteriorated and they struggle to observe the ever changing rules. One day hopefully someone will look at their plight and do something before they have lost the ability to survive. They are emblematic of a totally failed system where arbitrary detention is rife and where the so called monitors are impotent and useless to protect the vulnerable "untermenschen" in Australia's gulags.
pamela | 26 February 2019


I am a GP who looks exclusively after a large number of adults with intellectual disabilities accross Sydney and would put up my hand to assess and then look after Ahmad if he be allowed in Australia. There is a subjective bias against the boat refugee from a Muslim country, but here we also have a real bigotry against the adult with Intellectual Disabilities especially if compounded with challenging behaviors. I have never had a bad person that I have cared for, but have many who reject them as lesser people everyday. Fighting for these refugees is really a fight for the heart of this country. Great article.
John Crimmins | 27 February 2019


Shame on all of us, that we sustain a system of indefinite detention, even in the face of recommendations for release from the Commonwealth Ombudsman, and against the principles of our domestic law and international norms. Thanks to the writer for shedding light on this dark corner of our society.
Denis Fitzgerald | 27 February 2019


Brith Right Born into the Family of Man from the womb of Mother Earth No one brother was ever given authority to deny another brother the right and privilege of residence anywhere on this Planet, including the land of Australia I claim my birth right! Everywhere and Always!
Thijs | 01 March 2019


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