The federal government does not have a legal obligation to repatriate 31 Australian women and children who have been forcibly held in a Syrian detention camp for four years, a court has ruled.
The Australians are the wives, widows and children of slain or jailed Islamic State fighters. Most have been held in the squalid Roj detention camp in north-east Syria for four years. None have been charged with a crime or currently face a warrant for arrest.
Several of the children were born in the camp and know no life outside it. Conditions are “dire”, the Red Cross says, illness and malnutrition is rife and the security situation “extremely volatile”.
Save the Children Australia – which represented the 11 Australian women and their 20 children – argued the Australian citizens were being unlawfully detained and the government had a legal obligation to repatriate them.
During the case, Save the Children argued Australia had de facto control of the Australians’ detention, citing its previous repatriation missions of other women and children from Syrian camps, and the acquiescence of authorities in Syria to Australians being returned.
But in a judgment delivered in the federal court in Melbourne, justice Mark Moshinsky said the Australian government did not have control of the region and dismissed Save the Children’s case.
“The court has concluded that the respondents do not have control over the detention of the relative women and children,” the judgment said. “Accordingly this part of the application has been rejected.”
The reasons for that decision were provided to associated parties on a confidential basis, pending any appeal.
The women and children are being held by the Autonomous Administration of North and East Syria (AANES) and its military wing, the Syrian Democratic Forces.
Save the Children argued the AANES had expressly asked coalition countries, including Australia, to repatriate their citizens, and that if Australia was to request that repatriation it would be permitted.
But the Australian government argued, in its filings to court, that it “does not have control of the remaining Australian women and children” and cannot be compelled to repatriate them. Its lawyers told the court their incarceration is the baliwick of the Syrian authorities who physically hold them.
The government’s lawyers said it was not responsible for the Australians going to Syria or becoming detained, and that the camp detention is under the “absolute discretion” of the AANES, over which the Australian government has no authority.
The Save the Children Australia’s chief executive, Matt Tinkler, said his organisation and the families of those held in Syria were devastated by the decision.
“These children are innocent. They have done nothing wrong,” Tinkler said outside the court. “When I saw these children, some of them were just hanging on and that was over a year ago. They have suffered significant dental decay with black, rotten and fallen out teeth.
“These children just want to get on and live a normal life at home here in Australia to go to school to do all the things that we take for granted here.”
Tinkler said his organisation would consider appealing the decision. He said the judgment should not be used by the government as an excuse to do nothing.
“The Australian government does not need a legal ruling in order to do the right thing as they have demonstrated in the past, on a number of occasions, that they can repatriate Australian citizens to safety,” Tinkler said.
“While innocent and highly vulnerable children remain in one of the most difficult places in the world to be a child, the Australian government should really just get on and do the right thing.”
Australia has undertaken two repatriation missions from the camps in north-east Syria. In 2019, eight orphaned children, including a pregnant teenager, were returned to New South Wales from the camps.
Last October, four women and 13 children were brought back, also to NSW.
