A person deemed a national security risk by ASIO can be held in detention without charge for years ahead of their deportation, Prime Minister Scott Morrison has affirmed in rejecting a human rights challenge by an alleged people smuggler.

But the important case rejection is likely to attract international ire as it contravenes the UN's International Covenant on Civil and Political Rights (ICCPR) treaty to which Australia became a signatory in 1980.

The decision revolves around a man known only as Mr AC who has never faced charges but has spent six years in Australian detention and filed a formal complaint against the Commonwealth.

AC, of minority Hazara ethnicity, came to Australia from Afghanistan in October 2008 on a partner visa but four years later was subject of an Australian Federal Police probe with him suspected to be a people smuggler.

He was never charged and the case was eventually closed but in 2013 ASIO assessed him to be a direct or indirect risk to security and ordered his visa cancelled, prompting automatic detention.

 

Australian Human Rights Commission President, Professor Rosalind Croucher appearing at a Senate Estimates hearing at Parliament House in Canberra. Picture Kym Smith
Australian Human Rights Commission President, Professor Rosalind Croucher appearing at a Senate Estimates hearing at Parliament House in Canberra. Picture Kym Smith

 

He has been in detention since June of that year, first in Villawood in Sydney, then Perth and now Melbourne Immigration Transit Accommodation (MITA) as he fought for years in various courts including up to the High Court to remain in Australia before turning to the Australian Human Rights Commission (AHRC) to probe with a formal complaint.

His claim is his continued detention has been an a breach of his human rights and he should have been free while he challenged ASIO's adverse security assessment of him.

The Commission agreed and slammed the Department Home Affairs, specifically accusing Home Affairs Minister Peter Dutton and Prime Minister Scott Morrison of actions contrary to universal rights spelled out by the ICCPR to which Australia had "obligations".

 

Awaiting deportation, those without visas at Villawood Detention Centre where Mr AC was before being transferred to Melbourne. Picture: Supplied
Awaiting deportation, those without visas at Villawood Detention Centre where Mr AC was before being transferred to Melbourne. Picture: Supplied

 

"My view is that the failure of the Department to request that ASIO conduct a security assessment to assess the suitability of Mr AC for community based detention is inconsistent with or contrary to article 9 of the ICCPR," AHRC president Emeritus Professor Rosalind Croucher said in her report tabled to federal Parliament.

She concluded by saying the lengthy six-year detention of the man as his immigration case continued in court, without reviewing a chance to assess suitability for less restrictive detention or special conditions such as curfew, travel restrictions, surety or daily police reporting was wrong and four recommendations were made.

 

The Melbourne Immigration Transit Accommodation (MITA) compound with security handling a detainee.
The Melbourne Immigration Transit Accommodation (MITA) compound with security handling a detainee.

 

She noted both Mr Morrison and Mr Dutton in their capacity as former ministers for border protection and immigration rejected the key recommendation.

"Given the serious nature of the assessment by ASIO and in light of Australian Government policy I am not minded to exercise my ministerial intervention powers in respect of individuals with adverse security assessments," both men declared in written responses since the draft recommendations were made.

AC's case was reviewed as late as 2018 and deemed not to meet guidelines for any form of ministerial discretion or concession.

 

 

Originally published as Australia holds man without charge for six years



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