Adverse ASIO Security Assessments – Open Letter to AG Nicola Roxon

Spencer Zifcak
Agora Dialogue

Yesterday evening, some 50 people in Australia went to sleep not knowing whether they will ever be released from immigration detention.

These people have committed no crime. They have spent more than a year in detention seeking to demonstrate that they are genuine refugees. At the end of that process, they have been found to be genuine refugees. That is, their case that they would be persecuted if they returned to the country from which they fled has been accepted.
They had the fair and legal expectation that they would then be released so as to pursue new lives either in Australia or some third country that would accept them for resettlement. They are still locked up.
This is because, after having been determined to be genuine refugees, these fifty individuals received adverse security assessments from the Australian Security and Intelligence Organization (ASIO). Those with such an assessment must be detained, normally pending their deportation.
They have an entitlement to appeal to the Commonwealth Administrative Appeals Tribunal against their continuing detention. But they cannot win. This is because refugees who are assessed adversely by ASIO are not, in law, permitted to know the evidence on the basis of which the assessment is made nor are they permitted to know the reasons for it.
The considerations that guide the process of adversely assessing a person are not found in the ASIO Act. They are found in regulations made under the Act. But the regulations are not made publicly available. Adverse assessments, therefore, are made by reference to secret criteria applied to secret evidence. We know only that a person may be adjudged as a risk if that judgment is ‘consistent with the requirements of security’.
Upon appeal, therefore, these people are flailing in the dark. They have absolutely no idea of the case that is made against them. Under National Security Information legislation, the federal government may require that security related evidence be withheld from an applicant. It may also require that the evidence be withheld from the applicant’s legal representatives. Similarly, judicial review is impractical because the courts cannot order the production of material upon which adverse assessment decisions have been made.
There is little or no prospect that a third country will accept any such person for resettlement, given that a person has been determined to be a security risk. That is why detention may be indefinite, perhaps for life.
In a very real sense, this is Kafkaesque. The first priority of the new Attorney-General should be to make ASIO assessments reviewable, of course with appropriate protection for sensitive intelligence information. Otherwise, these detainees’ treatment in Australia resembles the persecution from which they fled in the first place.
Professor Spencer Zifcak
President, Liberty Victoria

The is a shortened version of the letter addressed to the Attorney General in the hope that she can bring pressure to bear on ASIO that will force them to respect human life and dignity
Victorian Council for Civil Liberties Inc
Reg No : A0026497L
GPO Box 3161
Melbourne, VIC 3001
t 03 9670 6422
info@libertyvictoria.org.au
PRESIDENT
Professor Spencer Zifcak
SENIOR VICE-PRESIDENT
Jane Dixon SC
VICE-PRESIDENTS
Jamie Gardiner
Anne O’Rourke
Rachel Ball
IMMEDIATE PAST PRESIDENT
Michael Pearce SC

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