The harrowing case of a Tamil farmer confined in indefinite detention challenges the power of ASIO to judge people’s right to seek refuge here.
He has been in flight or in detention for almost seven years. His wife and the two children he has not seen since they were infants have turned their back on him and he has no family or friends here. He is receiving treatment as a victim of torture and trauma and weeps uncontrollably in sessions with psychologists. They warn he’s a suicide risk.
He once grew rice and herded cattle in the no man’s land between the Sri Lankan army and the Tamil Tiger guerillas – under constant threat of punishment or death if seen to side with either of the warring forces. When his brother was killed by government soldiers, he ran in fear of the same fate.
None of the tens of thousands of Sri Lankan Tamils living in Australia has ever been linked to political violence here.
He fled to Singapore, then Malaysia, where he worked odd jobs in the twilight world of unregistered migrant workers for several years before boarding an asylum-seeker boat on the perilous voyage to Australia. After the boat was intercepted by the Australian navy, he was transferred to Christmas Island in September 2009.
Now he is a prisoner of Australia, in the cold parlance of the Immigration Department, ”an unlawful non-citizen”. He faces an indefinite, if not a life, sentence for alleged crimes, the details of which neither he nor we are permitted to know.
He is one of more than 50 people remaining in immigration detention who were found to be genuine refugees but who will not be released – and potentially never will be – because the Australian Security Intelligence Organisation has declared them to be a danger to national security.
The case of the man – whose name cannot be disclosed for legal reasons – is one of those now under review by former Federal Court judge Margaret Stone, the independent reviewer of adverse security assessments, who has been appointed to reconsider the fate of those refugees caught in one of the cruellest episodes in the ugly saga that has been Australia’s handling of asylum seekers in recent years.
Like the other cases before Stone, the farmer from the Batticaloa region of north-eastern Sri Lanka was judged, after a detailed investigation by the Immigration Department, to be a person at risk of persecution in his homeland and entitled to sanctuary in accordance with Australia’s obligations under United Nations conventions. Like the others, his rights as a refugee were rescinded by ASIO diktat – with no explanation, no supporting evidence and no avenue of legal appeal beyond the deliberations of Justice Stone, who has already said she has no power to countermand ASIO.
ASIO’s decision in relation to the 45-year-old is contained in a single-page ”Summary of Reasons”. Its language is legalistic and formulaic; its clauses plucked from a computer-generated menu many of whose boxes have been ticked identically for the others in refugee limbo.
ASIO ruled that the man should not be granted a permanent protection visa because he is a member of the Tigers – the Liberation Tigers of Tamil Eelam – because he ”ideologically supports” the LTTE and the use of violence to achieve its political goals, because he has ongoing family links to the Tigers ”and likely maintains associations with LTTE members”. The summary summarily concludes: ”ASIO assesses he is likely to engage in acts prejudicial to Australia’s security if he is granted a permanent protection visa.” At every level this verdict appears to mock justice and democratic principle.
It is not illegal to support the Tigers, who were never proscribed in Australia and, what is more, no longer exist as a mainstream military movement. It has never been illegal to ”ideologically support” causes in this nation, which has gone to war itself in defence of freedoms of speech and belief. There is also no law under which the alleged crimes of family or friends automatically make you a criminal. If ”maintaining associations with LTTE members” is a crime, then almost every Tamil in northern Sri Lanka should be jailed – not to mention the many confessed Tigers who Australia has accepted as refugees in the past and are now living happily, and peacefully, in our suburbs.
And if indeed the hapless farmer is ”likely to engage in acts prejudicial to Australian security”, should he be allowed to settle here, that would make him an almost unique figure in the long struggle for Tamil self-determination. The civil war is reckoned to have claimed more than 100,000 lives – with unspeakable atrocities by both sides – before it ended in 2009. But only once did the violence spill beyond Sri Lanka’s shores. That was the 1991 assassination of former Indian prime minister Rajiv Gandhi by a Tiger suicide bomber protesting at the Indian army’s intervention in the conflict.
None of the tens of thousands of Sri Lankan Tamils living in Australia has ever been linked to acts of political violence here. The worst the local community has been accused of is fund-raising for the rebels – and that by the Sinhalese-dominated regime in Colombo whose racial chauvinism and brutality ignited the civil war and perpetuates the misery of the disenfranchised Tamil minority.
Perhaps ASIO has uncovered compelling new evidence that the farmer is indeed a terrorist plotting mayhem. But there is nothing to indicate this in its summary of reasons, and detailed documents relating to the case obtained by Fairfax Media – including the Immigration Department’s ”Refugee Status Assessment Record” – contain no evidence the man is a threat to anyone except himself.
He lived all his life in an area near Batticaloa controlled by the Tigers before the rebels, double-crossed in an internationally brokered peace process, were wiped out in a ruthless military offensive in 2009 – after which tens of thousands of Tamils, including the farmer’s wife and children, were herded into containment camps.
Before he fled the country in December 2006, after the army shot his brother as a suspected Tiger, he says he was pressured to assist both sides as he moved between rebel and government-controlled areas herding cattle. ”He was threatened [by the army] that if he didn’t co-operate and provide information about the LTTE he would be killed,” departmental assessor Peter Carnell wrote in November 2009.
Immigration officials were convinced he was indeed a genuine refugee, in need of and entitled to resettlement. ”The claimant has provided consistent information about his identity in interviews held with Australian immigration officers on entry and at [his] refugee status assessment interview,” Carnell wrote.
Reports by psychologists depict the further trauma of the man’s years in detention, including 19 months on Christmas Island where he witnessed other detainees committing suicide and harming themselves. In April, one psychologist reported that he had symptoms of post-traumatic stress. ”He spends hours lying awake in bed overwhelmed with worries about his family and his life … He described having nightmares about the killings he witnessed in Sri Lanka.” He told of his wife having an affair with a relative. ”He became very distressed when relating the story of his marital issues and the fact that he is alone in Australia with no friends or family. He said that all his friends were killed or missing in Sri Lanka. He cried when he talked about how much he is missing his children and that his son does not want to talk to him any more.”
The man’s candour may well have contributed to ASIO’s decision to declare him an unacceptable security threat, just two months after immigration found he was a genuine refugee. In one interview he confirmed that a number of his relatives had relationships with the Tigers – not as fighters but who, like himself, through family, community and race, were inextricably linked to the Tamil struggle.
”My wife’s relatives such as father-in-law and sister-in-law had a very close relationship with the LTTE. Similarly, all our relatives had LTTE relatives. I cannot deny this. The LTTE members used to come to my house when I was there,” he said.
”I have helped the LTTE transport the dead bodies of the LTTE fighters to the burial ground and also those dead bodies of civilians killed during the aerial attacks by the army. When there was a fight between the LTTE and the army, several people like me helped the LTTE. If we were not doing this kind of help, there is no meaning to remain as Tamils. All helped because at that time the area was under LTTE control.”
He may also have contributed to the adverse ASIO assessment by contacting Sri Lankan authorities while in detention to try to defend his wife against army claims that he was hiding in the forests with the Tigers. He said the army had told his wife: ”If there was an attack by the LTTE to our army, we would shoot and kill you and your children.”
A report on the case by the Commonwealth Ombudsman in February expressed concern at evidence the man was suffering from insomnia, anxiety and eating disorders and was undergoing ”specialist trauma and torture counselling”. It warned that his continued detention was likely to worsen his health problems. While acknowledging the ASIO assessments, the report noted ”the government’s duty of care to detainees and the serious risk to mental and physical health that prolonged and indefinite restrictive immigration detention may pose.”
There are grounds to suspect the methodology and rigour of the ASIO assessments. In October 2011, nine refugees who had received adverse decisions wrote to the Ombudsman complaining about their treatment during interviews.
”It is more like an interrogation. The ASIO officers come from one angle, and the refugees respond to the questions in realistic, and at times, simplistic ways. As a result, a refugee who has nothing to pose any security threat would be rejected by ASIO,” they said.
”ASIO officers in general fail to understand or appreciate the cultural aspects … and our inherent fear of people in power, particularly in police and intelligence. The ASIO officers look at everything in a global context and are over-cautious about everything and, in the process, they miss the common-sense approach and the innocents become a victim.”
As concerning as the unchecked power of ASIO to block the outcomes of refugee determination, is the reluctance of the federal government to challenge that power when questions of its potential abuse arise.
The Attorney-General’s response in this instance, the reviews by Justice Stone, are proceeding slowly and giving every appearance of being designed primarily to get the government through a legal minefield and past the election. After months of deliberations, only two ASIO assessments have been overturned on Stone’s advice.
Lawyer Elizabeth O’Shea, who represented one of those released, says the cases raise serious questions ”about the power of ASIO and the lack of scrutiny” of its work. ”ASIO’s job is to collect information; it should never be a jailer: the minister should not defer his decision-making power to it,” she wrote in an article for the New Matilda website.
Meanwhile, the rest of those accepted as refugees after years of struggle, only to have those determinations overturned without explanation by ASIO, remain stranded in indefinite limbo.
”We are begging to have a fair and peaceful life, like others, like every human being deserves,” wrote the nine refugees in their letter to the Ombudsman. ”We risked our lives and braved the navy and the ocean, but our lives are wasted here behind the layers of fences.”