The Australian government knowingly relied on discredited evidence obtained under torture to keep a refugee in detention for a decade, despite being repeatedly told the detention was unjustified and the allegations untrue.
Sayed Abdellatif, falsely labelled a “convicted jihadist terrorist… held behind a pool fence” by then opposition leader Tony Abbott, has spent more than 10 years in immigration detention in Australia without ever being accused of or charged with a crime, because spy agency Asio had a “predetermined view” of him, called him a “liar”, and relied on evidence it knew to be discredited, a federal court judge has found.
In a 133-page judgment, justice Debra Mortimer found the ‘adverse security assessments’ made by Asio against Abellatif, and used to block his claim for asylum, were “legally unreasonable”, riddled with errors, and denied him procedural fairness. She said the security assessments should be set aside.
Mortimer also criticised some of Asio’s interrogation techniques as “unreasonable and unrealistic”, including conducting an eight-hour, 700-question interview during Ramadan when Abdellatif could not eat or drink.
The judgment could lead to Abdellatif’s release from detention after more than a decade. Overturning the security assessments clears a path for the immigration minister to grant Abdellatif a protection visa. His wife and six children already live in the Australian community.
Abdellatif, an Egyptian national, has been exiled from his homeland for 26 years after being convicted in absentia in a discredited mass trial in Cairo in 1999 for offences he never committed.
The evidence used to convict Abdellatif of murder, firearms offences and membership of terrorist group Egyptian Islamic Jihad was obtained under “severe torture”, including of his father – a fact known and admitted by the Australian government since 2015, but disregarded.
A 2013 Guardian investigation of the court transcripts from Cairo’s supreme military court found the evidence was obtained using torture, including electric shocks, and some of the charges were never alleged against Abdellatif in court.
‘Travesty of justice’
An Interpol red notice – treated as the equivalent of an arrest warrant by many countries – was withdrawn in 2018 after an application by Fair Trials International.
The government’s own independent reviewer of Asio security assessments described Asio’s reliance on the discredited trial evidence as “a travesty of justice”.
Abdellatif arrived in Australia by boat in 2012, seeking asylum with his wife and children. Australia recognised he and his family had a “well-founded fear of being persecuted”, and was legally obliged to protect them.
In 2013, then opposition leader Tony Abbott called Abdellatif a “convicted jihadist terrorist… held behind a pool fence”, seeking to condemn the Gillard government as weak on border protection because authorities had missed the Interpol red notice issued in his name. Abdellatif was moved from a low-security detention centre in South Australia into high security detention at Villawood and separated from his family, who were later granted visas to live in Australia.
The basis for the allegation was the alleged membership of Egyptian Islamic Jihad. Abdellatif has consistently denied ever being a member, and no evidence has been presented he has ever been involved with the group. He was questioned extensively about his work for Islamic charities while in exile, but consistently denied any link with any extremist organisations or holding any ideological affinity with them.
Mortimer says she found Abdellatif gave his evidence “in a serious and careful manner”, and that she found him reliable and truthful.
“I found him to be a witness who was speaking from his own recollection, and a person who has been significantly affected by his experiences of a tragically long executive detention in Australia.”
Abdellatif has been subjected to several interviews by Asio officers and has had three adverse security assessments made against him, in 2014, 2018 and 2020.
Mortimer found the 2018 Asio assessment involved a denial of procedural fairness because it relied on discredited evidence extracted through torture or “pre-prepared” by Egyptian authorities.
‘Unreasonable and unrealistic’
The federal court judgment also shed light on Asio’s interrogation techniques.
Mortimer was critical of the manner in which Asio questioned Abdellatif, noting his first interview on 10 July 2013 lasted from 9.35am to 5.05pm and was conducted during Ramadan, when Abdellatif was fasting.
The interview lasted more than eight hours, with two breaks, and involved more than 700 often “repetitious” questions.
In this same interview, Asio officers used different aliases, even for the same officer. One officer states “my name is Jacki, just in case you have forgotten”. However, no officer by the name of Jacki interviewed Abdellatif on that occasion.
Asio also gave Abdellatif false information, Mortimer found.
In one interview, Abdellatif likened his interrogations to being targeted by the Egyptian military regime.
“Asio is trying to pressure me mentally while I’m in the detention centre … either to admit something, to confess something I did not do, or I will be under this torture and this mental stress, pressure, for a long period of time. Egypt used the same methodology but in a different way.”
Given the length and breadth of the interviews, Mortimer said Asio’s expectations of how much information Abdellatif would be able to actively recall were “unreasonable and unrealistic”.
The judge found Asio officers had a “predetermined view”.
Interviewers queried Abdellatif’s phone and social media usage and who his friends were. Interrogators labelled him a “liar” and accused him of withholding information.
“There was no evidence whatsoever of any inclination to bring an open mind to the question of how the applicant might behave if released into the Australian community,” the judge found.
“The applicant showed, in my opinion, considerable patience and respect to the questioners, given his extraordinarily difficult circumstances.”
In one interview, Abdellatif defended himself in explaining his exile from Egypt: “Not all Muslim people are terrorists … I was put in a position, in a situation where I went through these things. I can’t do anything else to prove to you that this is the truth.”
On another occasion, Abdellatif, who has Crohn’s disease, said he was wearied by repetitive questioning and the inaction in his case: “I’ve had too many interviews … I told them everything and nothing happened.”
Abdellatif’s detention has been consistently condemned in Australia and internationally over a number of years. The UN human rights council said it was illegal and a “clearly disproportionate … deprivation of liberty” from which he should be immediately released, while the Australian Human Rights Commission called it “arbitrary … and unjustified”. The Australian government’s own inspector general of intelligence and security criticised its “lack of coordination and … urgency”.
A spokesperson for Asio said the agency was carefully reviewing the decision “and is considering its legal options”.
The spokesperson said Asio’s security assessments “involved rigorous analysis of intelligence by highly-trained experts… a thorough and robust process”.
“Where Asio becomes aware after the fact that information may have been obtained under torture, serious consideration is given to the overall credibility of the information.”
