For more than seven years, Ajak (not her real name) had no idea when she would see her son again.
He was being held in immigration detention, despite Ajak’s family having fled South Sudan more than two decades ago and having refugee status.
In 2016, Ajak’s son was sentenced to nine months in prison for drug and alcohol-related crimes. After serving his full sentence, his permanent humanitarian visa was cancelled and he was transferred to immigration detention.
After more than seven years in detention, Ajak’s son was released last year but he is still under strict curfew conditions.
“Right now his mental health is really bad,” Ajak tells Crikey. “My son was there for seven years, other kids have been there for 15 years and some for 20 years. They look like they’re still in jail. They’re still facing all these things — they’re not free.”
A class action lawsuit run by the Asylum Seeker Resource Centre (ASRC) is challenging the indefinite detention of those from South Sudan who have been found to be refugees. It is looking to expand the High Court’s ruling last year in the NZYQ case, which found that it is unlawful to hold a non-citizen in immigration detention indefinitely when there is no real prospect of them being removed to another country in the foreseeable future.
The class action case is arguing that this ruling should be extended so that once a person is recognised to be a refugee, their continued detention is unlawful.
“That’s a significant difference,” ASRC principal solicitor Hannah Dickinson tells Crikey. “Fundamentally both legally and ethically the detention of refugees needs to end, and that’s the purpose of the case.”
The plaintiff in the class action is a South Sudanese refugee dubbed LPSP, who arrived in Australia when he was 12 years old on a humanitarian visa. He has suffered from post-traumatic stress disorder, trauma and addiction in the years since, and was sentenced to 15 months in prison in 2016.
While serving this sentence, his humanitarian visa was cancelled, and after being released from prison he was transferred to an immigration detention centre. It wasn’t until late last year that a tribunal ruled he was not a danger to the community, leading to his release in March.
“They’re recognised under law as a refugee, but after that point the Australian government continued to indefinitely detain them for three further years in appalling conditions away from their friends, family and community,” Dickinson says.
“We say that from the time his status was recognised, rather than after the visa refusal, his detention was unlawful from that point.”
Dickinson says this situation would inevitably result in either a visa being granted and the individual being released, or the visa denied and the NZYQ principal applying as they cannot be returned to South Sudan.
“The continued detention is purely punitive and without justification,” she says.
The case was first filed in Federal Court when LPSC was still in detention. After he was released, it was expanded to be a class action. With a number of other similar cases being filed, the ASRC applied and was granted leave to intervene.
Two of these cases will be heard by the High Court today (Thursday), with the ASRC to provide a written submission on the class action.
If the class action is successful, all South Sudanese refugees held in immigration detention will be released, and they along with those who have been previously held in detention may receive compensation.
Lawyer and Dinka Community Union of Victoria president Bol Machar has witnessed the devastation that indefinite immigration detention has had on the South Sudanese community in Australia.
“Some have been in the centres for ages and they don’t know whether they’ll come back to their families and what their future will be,” Machar tells Crikey.
“Australia is a member in the international community where human rights are important — what does it mean if you detain someone for eight or 10 years in prison and with the potential for more? It tells us that Australia is not actually committed to what it has signed and is denying freedoms of those individuals.”
The NZYQ decision created a political firestorm for the federal government, one that was reignited last week when the High Court struck down the curfew and ankle bracelet regime imposed on those released by the ruling.
Soon after this decision, the federal government announced new laws giving it the power to pay other countries to accept these individuals, and then return them to immigration detention if they refuse to go.
This typifies the “targeting of refugees and people seeking asylum for political gain” and a “disturbing willingness to ignore the system Australia has in place to protect every person’s rights”, Dickinson says.
The indefinite detention of South Sudanese refugees is having a huge impact on the wider community in Australia, she says.
“There is a lot of sanitisation of what immigration detention means, but the reality of locking a person up and throwing away the key has a devastating and generational impact on people and their families and communities,” Dickinson says.
For Ajak, a victory in the class action will help efforts to rehabilitate these young South Sudanese refugees who have instead been sent indefinitely to detention.
“It will help people because they came here as young children and they came from refugee camps,” she says.
“They’ve had bad lives and we were hoping coming here would be for a very good life … we brought our children here to something that can come and kill them — it’s like throwing your child to the lions. It’s really very bad and people should know the situation.”
Is it time Australia rethought its immigration detention system? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
