If the federal government had “the political will” to repatriate Australian women and children from Syrian detention camps “it would be a relatively straightforward exercise”, the full bench of the federal court has said in a judgment.
But there is no legal obligation on the government to bring its citizens back to Australia, the court ruled.
Australia is unwilling to bring its citizens back and the ruling means the Australian women and children could wait years to be rescued from what the home affairs minister has acknowledged is a dangerous and damaging detention.
There are about 40 Australians – 10 women and 30 children – held in detention camps in North Syria. They are the wives, widows and children of slain or jailed Islamic State fighters.
Most have been held in the squalid Roj detention camp, near the Turkish border, for more than four years. Four are understood to be held in Al Hol detention camp nearer to Iraq. None have been charged with a crime or currently face a warrant for arrest.
Several of the children were born in the camps and know no life outside it. Conditions are “dire”, the Red Cross says; illness and malnutrition are rife and the security situation is “extremely volatile”.
An appeal by Save the Children to compel the Australian government to take its citizens out of the Syrian camps was dismissed on Tuesday, with the court saying Australia’s capacity to repatriate its citizens did not amount to effective control of their detention.
Chief justice Debra Mortimer, and justices Geoffrey Kennett and Christopher Horan, accepted evidence that many countries, including Australia, had successfully repatriated citizens from the detention camps, aided by the Kurdish authorities that control north-east Syria.
“If the commonwealth has the political will to bring the … women and children back to Australia, on the evidence before the court, it would be a relatively straightforward exercise.”
The justices said it was “amply proven” that the commonwealth had the “means” to end the detention of the Australian women and children.
“But that is distinct from a finding that the commonwealth exercises control over them and their custody.”
The chief executive of Save the Children Australia, Mat Tinkler, said the child rights organisation would consider its next steps in support of the Australian group.
“Our commitment to helping bring the remaining children back to Australia, where they belong, remains unshakeable regardless of today’s outcome,” Tinkler said.
“These are innocent Australian kids who have experienced immense trauma and suffering but are left to languish in desert camps, where they are rapidly losing hope.
“What I find difficult to comprehend is that the Australian government could end their suffering right now by bringing them home and providing the chance for a real life, but our political leaders are choosing not to act.”
The US, Canada, the Netherlands and Finland have repatriated women and children from the camps in the last month, “showing once again that repatriations are possible”.
Australia has made two successful repatriations from the Syrian camps: in 2019 of eight orphaned children, including a pregnant teenager; and in October 2022, of four women and 13 children. All were returned to NSW.
The government did intend to bring more Australian children and mothers home – the court heard evidence from Australian officials “noting the plan to repatriate further groups of women and children”. But in the face of political backlash and hostile media coverage over alleged security concerns around the 2022 repatriation, it is understood to have abandoned any immediate plans to rescue its citizens.
The Guardian understands electoral considerations have meant that the government will not revisit the issue before the next election.
During public criticism over the repatriation missions in 2022, the home affairs minister, Clare O’Neil, defended bringing the Australian citizens home.
“The national security question for us is, do we want these children growing up in a squalid refugee camp where they have no access to health and education, where they are subjected every day to radical, violent ideology that tells them to hate their own country? Or do we want them to grow up here with Australian values? So that’s the choice for us”.
