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Wednesday, 30 November 2005
Page: 144


Senator BARTLETT (6:57 PM) —I move:

That the Senate take note of the document.

This document is the annual report for the Administrative Appeals Tribunal, which was tabled in the Senate yesterday. Again, there is only five minutes to go over this issue, so I cannot do it full justice. I would like to highlight this report as part of drawing attention to the practical realities underlying some of the theoretical and rhetorical debates that we have been having about basic legal rights.

One example is a case that was ruled on by the deputy president of the Administrative Appeals Tribunal back in October—the case of SRHHH appealing against the minister for immigration. The person was an Afghan. It was found by the tribunal that were no serious reasons for considering that the applicant had engaged in conduct within the relevant part of the refugee convention which had previously been used to disqualify that person from receiving a protection visa—a refugee visa. That finding came more than six years after the person initially arrived in Australia with his wife and children. His wife and children are now out in the community. They have been out in the community from a very early period—back in 1999. They are now Australian citizens. His children have grown up without him throughout the six-year period that he has remained in Villawood detention centre. More than six weeks after the Administrative Appeals Tribunal finding, which remitted the matter back to the immigration minister for consideration, that man, unless the situation has changed in the last day and I have not heard about it, is still in detention. He is imprisoned, separated from his Australian-citizen wife and children, as he has been now for well over six years.

The extraordinary reason he is still there is that, having gone through all the trauma over more than six years to finally have the assessment made that there were no character or other improper action grounds for refusing him a visa, it is only at that stage that the ASIO assessment kicked in. We have had him sitting in jail for over six years. We waited till he was finally found not to be disqualified under the relevant part of the refugee convention and then we decided to get ASIO to have a look at doing the relevant checks that they are required to do under the Migration Act. And during all that period he stays locked up.

This person’s case was originally put before the Administrative Appeals Tribunal back in 2001, I think. At that time he was accused of a range of activities constituting crimes against humanity under the refugee convention which would disqualify him from getting a protection visa. Obviously it is appropriate for those allegations to be considered, but extraordinarily—and I think this is very telling because it is the sort of thing that can happen to any one of us—he was not given the opportunity before that tribunal to see the details of the allegations made against him. He could not respond to them despite an original order by the tribunal member that he be provided with details by the immigration department of the allegations made against him—what the specifics were, when they were supposed to have occurred and what the nature of them was. That information was not provided to him and, because he could not respond to those allegations, not surprisingly he did not do a very good job of defending himself against them because he did not know what they were.

He was then refused a visa on those grounds. It was not until 2004 that a full Federal Court judgment, Applicant S214 versus the Minister, of 2002, brought down on 26 March 2004, found that he had been denied procedural fairness. It was a decision that was originally upheld by the first Federal Court judge. Because a person was not able to respond to anonymous allegations made against him and because he was not given the detail of those allegations so he could defend himself, he has spent six years in detention, I would argue wrongfully, whilst his wife and child have lived without him. They are Australian citizens and the husband has continued to be locked up for over six years purely because anonymous allegations were made and he was not able to defend himself on so-called security grounds. That is a perfect example of the sort of thing that can happen to any one of us when security grounds are used to allow a complete denial of procedural fairness. (Time expired)

Question agreed to.