aus3-christmas-islandMelbourne, Tuesday – After a fourth hunger-striker was taken to hospital last night, the Australian Human  Rights Commissioner, Professor Gillian Triggs, has called for an end to the indefinite detention of refugees given adverse ASIO assessments.

“We are worried about this man. We have been told he has kidney problems. He has been very weak for a number of days,” said Tamil Refugee Council spokesman, Aran Mylvaganam.

A group of 27 men – 25 Tamils and two Burmese Rohingyas — with negative ASIO reports began a hunger  strike nine days ago. Three were briefly hospitalised last week and returned to the protest in the outside grounds of the MITA detention centre in Broadmeadows.

One refugee stated that despite their ever-decreasing physical strength after nine days of refusing food,  the hunger-strikers were determined to go on. “We remain strong in our hearts to see a resolution to this one way or the other, “he said. “We ask the Australian people to fight for us. It is wrong to keep innocent people like us locked up for four years without hope of released.” “What is our crime? Nobody will tell us, but still they lock us up for life. Australia is meant to be a democratic country, but where is the democracy for us? ”

The Australian Human Rights Commissioner, Professor Gillian Triggs, rejected Prime Minister Julia Gillard’s defence of indefinite detention of the ASIO-rejected  refugees, saying it breached basic human rights law and was causing major psychological trauma.

Professor Triggs said the Government should follow other countries such as Canada and the UK, which had special advocates to act on behalf of such people and ensure that their legal and human rights were protected at administrative tribunals. “(It is)an absolute black-hole in terms of their futures and that is where we are seeing mental distress, and depression and other actions to try to deal with what appears to be an insupportable situation,” Triggs told Fran Kelly on Australia’s Radio National breakfast show.

“Detention without end and without access to a proper review, without access to the reasons for their ASIO assessments and no ability to challenge it because they don’t know the under-lying reasons for it……..This is in breach of principles of basic human rights law against arbitrary detention. We’re arguing the Government might seriously consider examining alternatives to mandatory detention. “Among some of those detained in these circumstances, and I know because I have visited Villawood, are children. And that is even more distressing, where obviously the best interests of the children should be taken into some account.” Here is today’s interview by Fran Kelly, of Radio National, with Australian Human Rights Commissioner, Professor Gillian Triggs.

Fran Kelly: The Human Rights Commission has concerns about the prolonged and indefinite detention of these refugees who have all been locked up for more than three years and there must be little prospect of release. These people have been assessed as refugees and they are stuck here in a legal black-hole. They can’t come and live in Australia because they have a negative ASIO security assessment. They can’t go home because they have been classified as genuine refugees and no third country would presumably take them with this negative security assessment. What should happen with them ?

Prof. Gillian Triggs: We’re arguing that, firstly, detention without end and without access to a proper review, without access to the reasons for their ASIO assessments and no ability to challenge it because they don’t know the under-lying reasons for it means this is in breach of principles of basic human rights law against arbitrary detention. We’re arguing the Government might seriously consider examining alternatives to mandatory detention, for a start. They could be subject to conditions, various travel restrictions and so on, but nonetheless allow them into the community so that they can lead some kind of a life. As you say the critical problem here is that they’re refugees and no other country will take them with a negative Australian security assessment, so we would like to see some alternatives being examined in terms of community release on strict conditions if necessary.

But beyond that I think we’d really like to see a proper review process where the individuals concerned can know the allegations made against them and have an opportunity properly to respond to them in a way that meets basic due process requirements.

Kelly: So there’s two issues here. How to manage these people who are stuck in a legal black-hole and the review process. If we look at the management, what do other countries do? What happens in Britain, what happens in New Zealand or Canada?

Triggs: Well, those are very interesting examples because they are ones where people with negative security intelligence assessments have what is called a special advocate. And that advocate is able to appear on their behalf, and protect their interests before proper administrative tribunals. Now the unusual aspect of Australia’s processes is that the non-citizens, and these are non-citizens, albeit refugees, do not have a right to appeal to the usual processes that are available to the Administrative Appeals Tribunal and that means they are completely cut out from any reasonable capacity to have judicial review.

Kelly: But judicial review or not, if there is a negative ASIO security assessment, you can imagine a lot of people in the Australian community would want to make sure these people aren’t a security risk. How do other countries manage these people if they are not in indefinite detention, which presumably is the end game here, to prevent that happening, how do they manage them in the community?

Triggs: Well, with all sorts of regulations and conditions for their release, and that is that they must appear before particular people and regulatory authorities, maybe once a day, maybe once a week. Maybe they are confined to a geographical area. In extreme cases they may have an electronic device to monitor their movements. But there are alternatives. And among some of those detained in these circumstances, and I know because I have visited Villawood, are children. And that is even more distressing, where obviously the best interests of the children should be taken into some account. But we don’t have a completely unrealistic sense of this. If there are genuine security concerns, obviously the Government has an entirely proper interest in protecting Australia’s national security. But we would like, instead of a blanket rule, we would like, and believe it to be a matter of international law, that the Government assess individuals according their particular evidence against them, and their particular circumstances, and then make determinations to what happens to them, rather than what we currently have, which is a blanket rule that all those with negative assessments must be detained mandatorily. That means, in effect, as you quite properly pointed out, an absolute black-hole in terms of their futures and that is where we are seeing  mental distress, and depression and other actions to try to deal with what appears to be an insupportable situation.

Kelly: To be clear, here, and just finally on this, it suggests that people will just remain in detention forever more, because there is no way to move here.

Triggs: That’s exactly where we are at the moment. I cannot believe that this will be the position forever but nonetheless in the current position it seems extremely difficult for the Government to move on this matter. We hope that, possibly, some change can occur after the review by the (retired) Federal Court judge, Margaret Stone. Her recommendations are not enforceable, they are not binding on anybody. But nonetheless I would think that her very considered view as to the strength of the evidence could have some impact on Government policy in the future.

For further information contact Trevor Grant 0400 597 351