Without hope, without reason
January 14, 2012
Endless detention ... the mother of Atputha, 7, and Abinayan Rahavan, 4, is considered a security risk by ASIO.
Legitimate refugees, including toddlers, are imprisoned indefinitely. Only ASIO knows why and it will tell no one, writes Kirsty Needham.
'I live like a dead man walking,'' says Suvenran Kathirdamathambi, or ''Sutha'', 32. ''This is supposed to be the golden period in anyone's life - your 20s and 30s. But I can't even say when the day starts.''
Sutha is married, but his wife lives alone in Sri Lanka, unable to tell anyone she has a husband who has spent 30 months locked up in Australia. The former paramedic sleeps in short spurts, sharing a room at Villawood detention centre with men who sporadically wake at different times, miss breakfast, smoke heavily, shun exercise and mope around under trees.
''No one is in their right mindset,'' he says by telephone. ''To pass one day is a massive effort. Sutha has been homeless since his father and two brothers were killed by the Sri Lankan army. His mother had to keep moving with her son, disrupting Sutha's education but surviving.
During the civil war, he worked for an international non-government organisation then fled with a huge wave of Tamil asylum seekers when the conflict ended. ''I thought this country would give me protection.''
A year ago, the Immigration Department did indeed tell Sutha it accepted he was a refugee. The same day, he was also told ASIO had labelled him an ''adverse security risk'', for reasons the agency has refused to explain.
''It was agonising,'' Sutha recalls, still unable to believe such a profound decision could be made after just one interview. The secretive ASIO ruling blocks him from setting foot in the suburban Sydney streets outside. ''OK, we are safe, but it is a terrible life,'' he says.
Mirnalini Sasikumar, 27, travels daily by public transport to Villawood to see her husband, another Tamil refugee from Sri Lanka's bloody civil war. The separation is devastating for their five-year-old son, Sharthi. When the boy is at home, he continually runs to the door and cries, ''Daddy is here''. But he is not. His father, labelled an adverse security risk by ASIO, faces indefinite detention, yet the entire family are approved refugees.
A Tamil widow and her four-year-old child joined the ranks of Villawood's dispossessed ''security risks'' before Christmas. She was plucked from a community house in Melbourne when the dreaded ASIO decision arrived - an adverse finding and she wasn't told why. She cries continually.
Her neighbours at Villawood, the Rahavan family, have seen it all. But the government is doing its best to make the Tamil family of five, and the problem created by ASIO's verdict that the mother, Sumathi, is a security risk, disappear. One-year-old Vaheson may be the only infant in Australia to grow up without constantly being photographed by proud parents - no photographs of detainees are allowed, even toddlers, under department rules. His brother Abinajan, 4, was forced off the stage at his preschool graduation by guards keen to enforce the photo ban.
A few months earlier, the children's playmate ''Shooty'' Vikadan, a friendly 27-year-old neighbour, killed himself by taking poison. Refused permission to leave Villawood for a day to celebrate the Diwali Hindu festival with friends - an interim ASIO security assessment was cited - the uncertainty of endless detention became too much for Vikadan.
Lawyers are now fighting in the federal court to save a suicidal Kuwaiti Bedouin teenager, locked up for a year and repeatedly taken to hospital, from the same fate. Just before Christmas, Ali Abbas was the first minor deemed a security risk by ASIO. It means the boy, who arrived by boat as an unaccompanied 16-year-old, will never be released.
What is happening to these refugees is an aberration internationally. Fifty-four refugees, mostly Sri Lankan and Burmese, have been blocked from permanent visas since January 2010 because ASIO has labelled them a security risk. Another 463 await security assessment, often living for years behind wire in uncertainty. And the boats keep coming.
Subjects cannot challenge ASIO decisions or even be given an explanation. A standard letter outlines five broad possible grounds: suspicion of espionage, sabotage, threats to defence, promotion of communal violence and border integrity. Their lawyers have no idea what they are charged with, let alone the federal politicians now examining the issue. Only once has the Immigration Department asked ASIO to rethink a verdict, and ASIO upheld its decision.
The refugees cannot be sent home, because this would be a breach of the United Nations Refugee Convention, which Australia has signed. But no other country, so far, has offered to take them, largely because of the ASIO security insinuation.
The Australian office of the United Nations High Commissioner for Refugees says it simply does not believe the ASIO decisions are warranted, and its own assessment has found the refugees don't reach ''that serious level of threshold'' that would exclude a person from refugee protection on security grounds under the refugee convention.
The UNHCR is urging the federal government to introduce some oversight to ASIO's decisions on refugees. It has provided details on how New Zealand, Canada and Britain allow a court or special advocate to review security assessments and give the subject a summary of the case against them. This is basic fairness, which can be balanced with national security and the need to protect classified information, says the UNHCR's regional representative, Richard Towle. The Administrative Appeals Tribunal could act in this role, UNHCR has suggested.
The push to rein in ASIO appears to be gathering political weight.
The Labor MP Daryl Melham, the chairman of the parliamentary inquiry into immigration detention, recently told the department head, Andrew Metcalfe: ''I have a philosophical problem with 'who guards the guard while the guard guards you' … I am not comfortable with people remaining in detention without charge, technically for the term of their natural life, and saying, 'There is not one person in the whole of Australia who can safely review an initial assessment from ASIO.'''
Labor's national conference passed a resolution calling for the National Security Monitor, a position within the Prime Minister's office held by Bret Walker, SC, to investigate ways to provide an independent review mechanism for refugees with an adverse security findings. The federal government has said it will make a statement soon on the matter.
But a spokesman for the NSW Council for Civil Liberties, Stephen Blanks, who is also the Rahavans' lawyer, is concerned such a review will only delay action. He argues it will take too long to set up an independent monitor and says the existing system available for Australian citizens to seek review of ASIO decisions through the Administrative Appeals Tribunal could instead be expanded quickly to include asylum seekers.
ASIO is resistant to any independent scrutiny of its refugee decisions, with its director-general, David Irvine, arguing not only national security but also ASIO's ''sources and methods'' could be at risk. The system was last reviewed in 1977, the agency argues, and it was decided then that appeal rights shouldn't be given to non-citizens.
But this was before the modern era of asylum seekers arriving by boat facing prolonged mandatory detention. And the problem isn't solved by the federal government's recent policy shift to release new boat arrivals into the community on bridging visas. Those failing ASIO security checks are excluded from community release, the Immigration Minister, Chris Bowen, has said.
Blanks has called for the Attorney-General, Nicola Roxon, to sack Irvine, claiming his evidence to the parliamentary inquiry showed a failure to appreciate basic democratic principles.
If there is no change, the judiciary, which last year scuttled the government's Malaysia refugee swap, is likely to make its own challenge. The law firm Slater & Gordon has been approached by several refugees in detention and the legal community is considering a class action.
''We are dealing with a government agency woefully under-resourced, required to conduct complex assessments of large numbers of people held in detention, where the length of detention is creating mental illness,'' the firm's Ben Phi said.
No one knows exactly what ASIO looks at when it ''checks'' a refugee, and Irvine refused to tell the parliamentary inquiry when asked, saying if he divulged to the politicians the criteria for security checks, refugees would find ways to evade them.
But he gave a hint, saying ''the particularly relevant'' issue is politically motivated violence, specifically the potential to support terrorism from Australia and ''the financing of terrorism overseas''.
Many Tamils fled to Australia by boat after the Tamil Tigers (or LTTE) were crushed by the Sri Lankan army, fearing persecution after thousands of displaced Tamils were herded into huge military camps by the Sri Lankan government.
The Tamil Tigers are listed as a terrorist group in Australia. But Bala Vigneswaran, the refugee co-ordinator for the Australian community group the National Tamil Congress, says the LTTE ran a ''shadow government'' in the north of Sri Lanka during the war. ''If you were there and you worked, you had some involvement,'' says Vigneswaran.
Sumathi Rahavan was a clerk in the LTTE court. Other refugees in Villawood are believed to have known people in the LTTE or were said to be ''open sympathisers''.
''But we are open people. We talk,'' protests Vigneswaran. ''If someone says, 'These people are always talking about Tamils needing freedom', well, so do I. Does it make me a terrorist?''
He says ASIO needs to have actual proof of terrorism, not an opinion.
Rohingya Burmese, an ethnic Muslim group persecuted by the Burmese junta, are another cohort being held for years in detention on security grounds, with at least four Rohingya given an adverse ASIO finding.
Sayed Kasim spent 14 months in detention waiting for ASIO. Unable to work, he couldn't send money to his wife stuck in Malaysia to support their four children. She became suicidal after she was forced to put their eldest son in an orphanage.
Kasim fled Burma after being bound and threatened with execution by soldiers. Living in Malaysia as an illegal immigrant, he established a school for Rohingya refugee children and became politically active. Harassed by Islamic religious extremists, he was again forced to run.
His story has a happy ending. Kasim was finally cleared by ASIO late last year, and now works at a coffee cart in Liverpool. ''I didn't know what freedom meant until the day I was released from detention,'' he says. Kasim counts himself lucky, and is trying to bring his family to Australia.
But he puzzles over why ASIO took so long. It was only after Kasim took the initiative to write to ASIO and invited them to visit him that officers interviewed him. ''They asked me about terrorism. I said, 'We are simple people in Burma, we can't do anything. We are Muslim but I have never heard of a Rohingya involved in terrorism.'''
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