In a dramatic judgement on October 5, the High Court declared that it was unlawful for the government to deny a protection visa to any asylum seeker on the basis of an adverse ASIO security assessment. It was a small relief to the 55-odd ASIO-negative refugees being held indefinitely in detention, but the decision fell a long way short of what was needed to get the refugees released.

The court did not address the question of indefinite detention and indeed explicitly stated that their on-going detention (for some more than three years!) was lawful as long as it was for the purpose of processing a protection visa.

The government wasted no time, meeting with Liberal shadow Minister, Scott Morrison, to consider changing the law to get around the High Court decision (just as they did when the High Court ruled out the Malaysia Agreement). Nicola Roxon also threatened to use character grounds to continue to deny visas and finally declared that she, as Attorney-General, still had powers to refuse a visa on national security grounds.

The High Court also said nothing about the fact that refugees are prevented from knowing the basis of ASIO’s assessment, or the fact they are denied the opportunity to appeal or challenge ASIO assessments.

In the wake of the court decision, Roxon has said that the government will now look to establish a more transparent process to review ASIO decisions. If this review process genuinely provides the possibility of challenging ASIO decisions, it could turn out to be more important than the High Court decision itself.

The ASIO decisions are highly dubious and ASIO remains a law unto itself. The High Court hearing revealed that according to ASIO, the Tamil in the case, “…was a voluntary and active member of the Liberation Tigers of Tamil Eelam (LTTE) Intelligence Wing from 1996-1999.” Australia has never proscribed the LTTE, yet the Director–General of Security declares, “I assessed the plaintiff to be directly or indirectly a risk to Australia’s security.”

Meanwhile according to the UN, there are credible allegations of war crimes against Sri Lanka’s ambassador in Canberra, Admiral Thisara Samarasinghe, who oversaw the shelling of Tamil soldiers and civilians trapped in what had been declared a safe zone at the end of the civil war in 2009.

Lawyers and refugee groups have called on the Immigration Minister to grant protection visas and release the ASIO negative refugees. There will be no justice until they are all freed.

By Ian Rintoul


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