caron eliot on Mon, 28 Jul 2003 20:20:55 +0200 (CEST)

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<nettime> Lepers, Witches and Infidels - or shall we just call them refugees?

Lepers, Witches and Infidels - or shall we just call
them refugees?
Karen Eliot, Adelaide, 28 July 2003

In the space of just under 4 hours the crispy blue
Adelaide winter morning turned to fat grey rain and
wind. In the climate-controlled Room R on Level 5 of
the Family Court in the city centre the passage of
time and weather didn't directly touch the crowd of
sixty activistas, human rights observers, Indigenous
elder, lawyers, media, translators, parents, ACM
drones, Federal Police and ghosts. Just as the five
Afghani children whose immediate fates and long-term
futures were at stake didn't touch us by their actual
presence. The un-famous five existed, like the
weather, outside of this impersonal room, in the
liminal space of immigration detention, 'between the
floor and the sky', somewhere no-one wants to be. 

Their material appearance could have provoked a very
different atmosphere in the courtroom today, any
direct expression of anger, frustration and anguish
interrupting the rarefied theatre of justice with its
high church signs of gowns, obsequious bows, and
learned friends. The children's absence mirrored the
way the Department of Immigration, & Multicultural &
Indigenous Affairs (DIMIA) consistently referred to
them, as "unlawful non-citizens" who, since the
failure of their appeal to the High Court in February
this year "have no rights of protection" under
Australian law. Or perhaps that should be, "awful
non-citizens" who "have no rites" under Australian
lore. The same wilful lore and law which insisted a
couple of hundred years ago that this land was "terra
nullius" when blind Johnny could really see that every
place was peopled by numerous families and social
groups. How long will it take for us as a mature
nation to heal the wounds of invasion and to create a
safe haven for everyone who is owned by this country
by birth or boat or need to escape persecution?

The children's father was present in court today,
flanked by three tagged ACM guards in civvies (sad
sling-back shoes and woolly jumpers were the go) and
another tall company man standing in front of the
courtroom door, presumably if Mr X tried to do a
runner. Mrs X, seven-months pregnant, had been rushed
to hospital in Port Augusta last night, and was not
able to attend. Today was the hearing of two interim
applications requesting the immediate release of the
children as grave concerns for their well-being have
been expressed by a number of mental health
professionals. The first application was lodged by the
children's father recommending that his children be
allowed to reside in a suburban home provided by
Centrecare Catholic Family Services, and that regular
contact with their parents be allowed. The second
application was by the children, "an order pursuant to
Section 67ZC that, pending the final determination of
the legality of their detention, the Applicant
Children be released from immigration detention."

The presiding judge, Justice Steven Strickland, set
the date for the Final Hearing of the children's case,
and in particular the unlawfulness of detention, for a
five day trial beginning on September 15.

There was a lengthy preamble centering on an affadavit
by Mr James Williams for DIMIA. The applicant opposed
the wording of it on the grounds that he is an Afghani
national. DIMIA announced that they intended to
produce documents to argue that the detention of
children is not illegal and that therefore the judge
doesn't have the power to release children. More blah
about inadmissable material and then the judge got
snippy, saying that he wasn't going to spend the
morning going through procedural matters that should
have been sorted out well beforehand. The applicants
for the children objected that they had only received
DIMIAS's objections at this very moment and that they
thought this was "intentional" on the part of DIMIA.
(DIMIA were objecting to the "purport" of the
pyschologist's report. DIMIA announced its intention
to produce its own pyschiatric evaluation of the

The applicants requested that before the Final Hearing
the judge visit Baxter where the father and his two
sons now live (and possibly the Woomera Housing
Project where Mrs X and her 3 daughters have been
living since June 2003). They asked this since they
claimed that the photographs of the detention centre,
devoid of guards and refugees, do not give an accurate
representation of the real circumstances in which the
children are living.

The judge clarified that there is a general power in
the Family Court under the welfare provision to
release children on an interim basis from immigration
detention. (sections 23 and 34 of the Federal Court
Act -- providing for power to make orders of the
broadest variety -- reference made to the Full Court
decision on the release of Al Masri as his detention
was deemed to be indefinite [because he could not
obtain travel documents from countries neighbouring
Gaza] and therefore unconstitutional). Basically the
unlawfulness of the detention of the five children
from Family X provides the trigger for the Family
Court to act. Today's hearing is the first fruit of
the Full Court of the Family Court's ruling in June
2003 that the Family Court has jurisdiction to
determine the futures of refugee children in

The applicants then went to the heart of the matter,
saying that "on one side we have the best interests of
the children and on the other the interests of the
Minister". Mrs X is not interested in co-operating
with DIMIA to leave Australia (because of a fear of
what would happen on her return). And the Full Court
has determined that beacause of the children's
minority status they don't have autonomous
decision-making power.

They continued by pointing out that Mr William's
affadavit for DIMIA admits that the security situation
in Quetta, a town in Pakistan near the border with
Afghanistan, presents an impediment to a security
officer (presumably an Australian officer who would be
accompanying the family should they be forcibly
removed from Australia). So the situation of detention
rolls on indefinitely, and it is unclear how long
Quetta has been unsafe, and if it will ever be deemed
safe in our lifetimes. DIMIA could force the issue if
they find another willing nation to accept the family
but there is no evidence that they are getting to
closer to finding this land of milk and honey, and
therefore the detention appears to be indefinite.

Speaking on behalf of the family David Haines, QC
asked "What constitutes the best interests of the
children?" Although the Immigration Minister has
asserted that the children are in a stable situation
and should not be separated from their parents, the
fact is that the two brothers are in Baxter and since
June the three sisters have been in Woomera in house
detention with their mother (and 24/7 ACM guard). So
already there has been separation from family and
destruction of the family status. The affadavit of Ms
Fitzgerald [pyschologist] lodged on 21 July 2003
insists that there is an immediate need for the
children to be released and undergo psychological
treatment for the conditions they suffer. Ms
Fitzgerald shows the same concerns now for the
children as she did one year ago when she prepared her
first report on their pyschological condition. Her
primary recommendation is that the children be
released from detention to live with their parents in
the Australian community with the help of a supportive
network. If this option isn't viable then she
recommends beginning a process of restoration of the
children's pyschological health and well-being
commencing immediately with their release from

The judge asked for more information on what kind of
therapy the children would receive, and what would be
the implications of DIMIA's High Court Appeal (to
overturn the recent ruling that the Family Court can
order the release of children in detention). 

The lawyers for the applicants stated that under the
Migration Act detention is broadly defined and that
the Minister has the power to authorise any person to
act as a detention officer, and that a wide range of
places can be defined as detention places. For
example, a migration officer or a community worker
could be placed in charge of children in their own
places of residence. The Family Court now has the
power to give orders pertaining to the accommodation,
health and education of asylum seeker children who are
deemed to be at "unacceptable risk" of "significant
and/or permanent damage."

DIMIA might have taken up less court time today in
comparison with the applicants' legal team, but they
had learnt their lines well even if they were
delivered with a bit of a mumble by Charles Gunst QC,
and the quality of their script was ... well, was it
*meant* to be a Shakespearean comedy, or did one of
the Temp Terrorist crew replace DIMIA's submission
with a script from the new series of the dammed ABC's
"The Office"?

On one hand DIMIA professed concern for the children,
declaring that the judge was unfairly being asked to
"forcibly remove" five children from their parents and
place them with two "non-professional carers". At
least we were spared a deluge of crocodile tears. (The
applicants later objected to DIMIA's use of the word
"forcibly", as they explained that the parents and the
children had agreed to the option of living in the
community as the lesser of two evils, remaining
indefinitely in detention being a far greater trauma
than parental separation).

Lest we be confused by DIMIA's quiet concern for
preserving the sanctity of the bond between child and
parent (let's leave that to J Howard and his joint
custody crusade) they quickly reassured us that they
are the same old grey men and almost-men by returning
to the barren linguistic territory of their underlying
"punish the lying Pakkie bastards" theme. 

Protection visas refused because the family is from
Pakistan not Afghanistan. Mum and children have lost
all rights. Dad's visa cancelled. Family Court has the
power to release the children if detention is found to
be unlawful but not otherwise. The detention of
children will be unlawful if there is not a reasonable
likelihood of removal from Australia. Indefinite
detention is not the same as "not short" detention.
The women and children are from Pakistan. Obtaining
the necessary travel documents for deportation can
take a long or a short time.  These are unlawful
non-citizens who have no right to remain in Australia.
The Minister is under a statutory obligation to remove
them. They have no further right to remain and they
will be removed. These children as a matter of law
must be removed from Australia. 

Important to bear in mind that immigration detention
isn't a punishment (cynical laughter from crowd). 

Its purpose is to separate unlawful non-citizens from
the Australian community (pungent silence from crowd).

Immigration detention is voluntary in the sense that
it can be brought to an end by a refugee agreeing to
leave the country. Mrs X's unborn child will only be
an Australian citizen if the parent is a citizen or
permanent resident. 

The performance continued ...

The interests of children are important but not
paramount (unusual display of departmental honesty

Baxter is a purpose-designed centre, with
much-improved accommodation (more cynical laughter and
snorts). Medical facilities are available. None of the
children (detained now for two and a half years) has a
need for on-going pyschological monitoring. They
haven't seen  a pyschiatrist because they haven't
needed one (this in response to the applicants'
submission that one of the boys attempted to hang
himself one year ago in a suicide pact with another
child). Baxter is a very good centre. The children are
healthy and well-cared for. They have a balanced diet.
It would be a very cruel pyschological trick to
release the children as it would give a false hope
that they could stay in Australia.

Well, that's just about it. The judge expressed
concern that the applicants needed to provide more
information on the proposed housing and schooling
arrangements for the children should he order their
release into a community setting. Because he had so
much new material to read and consider he adjourned
the handing down of his landmark decision until
Wedesday 30 July at 10am.

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