Looking beyond the obvious: Why ASIO needs more scrutiny

Manokala Jenaddarsan and her son Ragavan are tasting freedom for the first time this week. Not just liberation from immigration detention, which has been their life for the last 18 months, but freedom from the ravages of political violence. They came to Australia fleeing persecution. It was the war in Sri Lanka that claimed Ragavan’s father’s life; it was the Australian legal system that claimed their freedom.

The injustice suffered by refugees with adverse assessments from ASIO is finally getting the attention it deserves. In this dark corner of Australian law, people are detained indefinitely. They are unable to be returned to their home country as we owe them protection obligations under international law, unable to be released because someone, somewhere in the sprawling organisation that is ASIO, found them to be a security risk.

Despite a High Court ruling which identified the provision relied on by the Minister for Immigration to detain these people and found it to be unlawful, perplexingly, these people remain detained. Seemingly in response, but apparently separately, the Department appointed former Federal Court judge Margaret Stone to review these decisions. Obviously it is important that some process for review was established, but the process is complex and never involved full disclosure of the material relied on by ASIO to make its decision.

Navigating a semi-legal process where there is no clear power or law is frustrating as an advocate. And try explaining all this to a desperate client.

Dramatically, ASIO informed Manokala last week that the assessment was remade, that it was no longer prejudicial — and that she would be released. This is only the second time this has ever happened to a refugee: Maurice Blackburn also represented Muhammed Faisal, one of the last detainees on Nauru before it was first shut down (unfortunately, the Nauru detention centre, like Lazarus, rose again). Faisal’s mental condition deteriorated so significantly he was medically evacuated to Brisbane to seek treatment, at which point his assessment was reviewed.

ASIO claims that these examples demonstrate that they can respond to new information and review their assessments. The Attorney-General claims that Manokala’s case shows that the system works. The implication is that the review process presided over by Stone is unnecessary.

While we are thrilled that Manokala and Ragavan were released, as we were when Faisal was released, we respectfully disagree with these suggestions that the system works. These examples raise broader questions about the power of ASIO and the lack of scrutiny over it.

Frankly, the system is not working when the only two refugees to have their assessment reviewed include a man with very serious mental health problems and a mum who has clearly never been a threat to anyone.

It is not clear what new information ASIO relied on for Manokala’s re-assessment, as her situation appears to be exactly the same as it was when she arrived in Australia. She has never been a member or supporter of any political organisation. She has not been in contact with anyone in Sri Lanka since she left, other than her family and a priest. She has always been a widow trying to raise a small son and she has always denounced the use of political violence. As her lawyers, we know of no new information that could have prompted ASIO’s reassessment. We would be very interested to find out.

But we will never know the process that took place to review the assessment, just as we will never know why it was made in the first place. What we do know is that the Minister defers to ASIO in these instances and detains anyone with an adverse assessment. ASIO’s job is to collect information, it should never be a jailer: the Minister should not defer his decision making power to it. But similarly, ASIO cannot claim to be ignorant as to the consequences of its assessments and should approach the decision with the appropriate gravity.

Of course, given Manokala’s assessment was reversed despite no new information coming to light, no doubt ASIO wants us to question the usefulness of the Stone review process. For my money, there is no doubt that Manokala would still be detained if the Stone process had not been established. In my view, ASIO was rightly worried that Stone would be unimpressed with their adverse assessment of Manokala and tried to circumvent those consequences.

To that end, the system of review must be strengthened for the remaining 54 people in this predicament, not dispensed with. The Government should adopt the recommendation by the Senate Standing Committee on Legal and Constitutional Affairs and legislate to allow people in this situation to appeal the decision to the Administrative Appeals Tribunal and have a proper, transparent process for evaluating claims made by ASIO.

Manokala and Ragavan have paid the price for this. She has suffered immeasurably during her detention and her son has experienced irreversible developmental harm, facts we have made repeatedly clear to the Minister and which have been confirmed by independent medical assessors. There are plenty of other ways to respond to these assessments, including community detention and monitoring.

The answer is not that the system is working. The answer is that we need more scrutiny of ASIO’s decision making. Power exercised without scrutiny is simply dangerous: it results in mistakes or abuse. The inhumanity and injustice must stop.

© New Matilda

Elizabeth O'Shea is the head of the Social Justice Practice at Maurice Blackburn which litigates matters of public interest. Maurice Blackburn has acted pro bono on behalf of many asylum seekers, including Mohammed Sagar and Muhammad Faisal.


Journalists for Democracy in Sri Lanka

  • JDS is the Sri Lankan partner organization of international media rights group, Reporters Without Borders (RSF). The launching of this website was made possible by the EU’s European Instrument for Democracy and Human Rights (EIDHR), of which Reporters Without Borders is a beneficiary.