In a small room at Perth’s Hakea maximum security adult jail, an Indonesian child sat with eyes transfixed on a television screen.
Before him, suited figures rose one by one to discuss his fate, speaking a language he could not understand.
The boy, Kevin, had been found on board an asylum seeker boat in the waters off Western Australia in 2010. He’d been tricked into crewing the vessel by a stranger offering lucrative work transporting goats and pigs, he says.
Kevin, who goes by one name, was 16. As a child, Australian policy was to send him home, back to the market in Kupang, West Timor, where he’d spent his life collecting plastic bags and pushing a cart to help support his grandmother, the only parent he’d known.
Instead, authorities prosecuted and imprisoned him as an adult people smuggler, locking him up in adult jails with some of the state’s worst offenders. Nasrudin Yahya, a fellow 16-year-old from a nearby island, faced the same fate.
In hundreds of cases like Kevin and Yahya’s, federal police relied on a now discredited technique of wrist X-ray analysis to claim the minors were adults.
They relied on the technique despite having information that should have cast doubts on its reliability and accuracy.
The misuse of the wrist X-ray evidence is now well-known, prompting the overturning of multiple criminal convictions. The commonwealth agreed in October to pay $27.5m in compensation to 220 children who were wrongly detained.
Since the settlement agreement, lawyers from Ken Cush and Associates have been travelling through Indonesia, searching for others wrongly detained due to the flawed X-ray analysis.
When they found Kevin, he said something that shocked them.
Kevin lives in Kupang, the largest city on the island of Timor, and speaks a local Kupang dialect. He does not speak English.
But he says he was given no interpreter for two court appearances in which he appeared remotely.
“I didn’t understand anything because there was no interpreter there,” Kevin told Guardian Australia through an interpreter. “I was by myself.”
He remembers going to court in person for his sentencing, but can’t remember if he was given an interpreter for that hearing.
“I didn’t understand anything. I didn’t have any idea.”
Colin Singer, a former official prison visitor in WA, has campaigned for people like Kevin since he discovered Ali Yasmin, who was just 12 when he was arrested aboard an asylum seeker boat in 2009 and imprisoned at Hakea for three years.
Singer travelled with the legal team, helping them locate more people who were wrongly detained as children.
He says Kevin’s story is common and left children with an “appalling” inability to understand what was happening to them.
“During our tours … it has become more and more clear that almost all the kids had no understanding of Australian immigration detention processes and the legal proceedings brought against them because they did not speak or understand [the official Indonesian language] Bahasa Indonesia but instead spoke only local dialects,” he says.
“This included many kids who speak only local dialects from Kupang and Rote, as well as the Bajau. The Australian government did not address those cultural differences and they did not provide any proper interpreting services for those kids.”
‘I was scared, but I had nowhere else to go’
For 16 years, Kevin’s grandmother was his whole world. She’d raised him at the markets, where they worked and slept.
Everyone at the markets knew Kevin.
By day, he would collect and sell plastic bags and push a cart around to help market goers, while she sold fish and vegetables. By night, he and his grandmother would sleep among the stalls.
On rare occasions, when business was good, the pair would splurge and pay for a roof over their head for a night.
That all changed when a stranger turned up one day in 2009 and offered Kevin work. He promised to pay 12,000,000 rupiah, or about $A1,100, for work transporting goats and pigs. The sum was enormous.
Kevin’s grandmother urged him to take it.
The man put the boy on a plane north to Makassar, the capital of South Sulawesi, where he was met by two other men, who took him to a beach in the middle of the night. There, he boarded a boat with 30 people who were not Indonesians.
He felt tricked.
“I was scared, but I had nowhere else to go so I just got on the boat,” he says. “The first time I got on the boat and I saw the immigrants, I was scared and confused at the same time, but I felt as if I had no other option.”
It was the first time Kevin had ever been on a boat.
At some point during the cramped, dizzying journey, he saw a much bigger boat approaching. On board, there were men with guns.
The boat belonged to the Royal Australian Navy.
Kevin was detained, first in immigration detention in Western Australia, where he told authorities he was 16, before being transferred to Hakea, Albany and Pardelup prisons, all adult facilities.
“In the first interview, I told them I was 16, I told them I was born in 1993,” he says. “They said they were going to send me back home, but rather than sending me back home, they sent me to Darwin.”
He was sentenced to five years’ imprisonment, the mandatory minimum jail sentence for people smuggling. The WA courts told Guardian Australia they were unable to find Kevin’s file.
Kevin was deeply worried about his grandmother. She did not have a phone and there was no way to contact her.
After about three years behind bars, Kevin says, he was suddenly told he was going home. He was flown to Bali and left there, more than 1,000km from his home, and was forced to use all the money saved from working in the Australian prisons to get back to Kupang.
When he arrived back at the markets, he went looking for his grandmother.
Kevin says he searched everywhere, becoming more and more desperate.
“When I got to Kupang there was no one to pick me up,” he says.
“I took the motorcycle taxi and when I got to the market my grandmother had already passed away.
“She passed away while I was in prison and I didn’t know that she had passed away.”
‘Miscarriages of justice’
Many like Kevin still remain convicted people smugglers, despite the widespread acceptance that the evidence used to convict them was flawed.
That includes Anto – 15 when he was detained – and Samsul Bahar, who have petitioned the current Australian government to intervene to allow them a new pathway to appeal.
Singer accuses the attorney general, Mark Dreyfus, of failing to take “any steps to correct those miscarriages of justice”.
“The commonwealth attorney general, who knows that many class members were wrongfully convicted and sent to Australian jails when they were children, has failed to take any steps to correct those miscarriages of justice and instead made each of the class members who has applied wait indefinitely while he ‘considers’ whether to refer their wrongful convictions to the relevant state and territory courts of appeal so that the courts can correct those miscarriages,” he says.
Dreyfus did not respond to a request for comment.
In 2022, a Guardian Australia investigation showed how police took the dates of birth given to them by the Indonesian children and changed them on sworn legal documents to represent them as adults, paving the way for their prosecution.
They did so by changing the year of birth to fit the X-ray interpretations but keeping the month and date the same.
The AFP did not respond to questions about whether it would apologise to the Indonesians for the reliance on wrist X-rays and their wrongful detention. A spokesperson said the AFP no longer used wrist X-rays for age assessment.
“The AFP previously used wrist X-rays for the purpose of determining whether a person was under 18 years old, consistent with its powers and obligations under the Crimes Act 1914 and the Crimes Regulations 1990,” the spokesperson said.
“The AFP no longer does so, and the relevant provisions authorising wrist X-rays are no longer in force.”
During the civil proceedings, commonwealth records were used to estimate that more than 230 children as young as 12 were incarcerated with adults in maximum security prisons.
Singer says the legal team’s work to identify and verify individual cases had now showed the commonwealth “almost certainly significantly understated the number of children who this happened to”.
One of the recent cases discovered by Ken Cush and Associates and Singer is that of Nasrudin Yahya, who also now lives in Kupang.
Yahya says he was offered a significant sum to cook food on a boat journey to an undisclosed location. He needed the money to support his mother and flew north to Makassar, where he was taken to a beach to board a boat.
He says he was never told he would be taking people to Australia.
“I was confused as to why there were so many people getting on to the boat,” Yahya tells Guardian Australia through an interpreter.
“I couldn’t do anything because I was only a cook. I had no bargaining position. I was scared because there was a lot of people.”
When the boat was intercepted by Australian authorities, he told them he was 16 and gave them his name. Later, he says, he told his defence lawyers he was in fact 25, because he was afraid and mistakenly thought “that by saying that, I could be sent home straight away”.
He was prosecuted as an adult. Yahya remembers fearing what would happen to his parents if they learned of his plight.
“I’m afraid that when [my mother] hears that I got captured and am in jail, that she will get sick,” he says. “I’m scared that something bad might happen to my parents if they hear that I was detained.”
Yahya says he was given a Javanese language interpreter during court proceedings.
He speaks the Kupang dialect local to his home on Rote Island, near Timor. The two languages have very little similarity, he says, but he was too scared to speak up in court to say he did not understand what was being said about him.
Yahya believes the entire court proceedings were about getting him back home to Indonesia. “I thought that they were going to send me back home,” he says.
“I had no idea I was going to jail.”
A spokesperson for the Northern Territory supreme court told Guardian Australia: “Court records show that defence lawyers in Mr Yahya’s matter were told in writing months before his plea and sentencing which languages his interpreter spoke, and their qualifications.”
They said court transcripts showed “an interpreter was engaged to translate and read the defendant the statement of facts prior to Mr Yahya’s plea, and that the court took an adjournment to allow this to occur”.
“While it is impossible to go back in time to know exactly what Mr Yahya understood, all indications are that he was aware of the allegations against him and had an interpreter whose qualifications (and the languages spoken) were known months ahead of time to the defence.”
After about three years behind bars, Yahya says, he was told he was to be sent home. He remembers being driven to Darwin airport and put on a plane.
Finding his mother still alive was one of the happiest days of his life, he says.
“Praise God that when I got home my mum was still in a healthy condition.”
