Babak was in the Christmas Island detention centre during the riots. For three days there were no meals. Some boxes of sandwiches were dumped a few times but never enough to go round, and Babak, a slight young man, missed out.
On the third night, Babak crawled through a broken window in a kitchen looking for food. He was too late. Many had been before him. All he found was a packet; he grabbed it, but when he got into the light, he discovered that it was turmeric, so he put it back.
Babak was charged with having “entered or is in the place of another person, without that other person’s consent” and given a $1,500 good behaviour bond.
The charge sheet was not even completed. There was no evidence or suggestion that he had broken the windows. He had been found to be a refugee two months before the incident and security cleared one month after.
He was kept in immigration detention for a further 12 months awaiting the charge for entering the kitchen. Now he faces indefinite detention because he has failed the character test.
Under legislation which was amended in May 2011 and enacted in August the same year, a whole range of behaviours were listed as capable of “enlivening the Minister’s discretion” as to whether a person who had passed the refugee and security tests would be granted their freedom.
Under previous legislation, to fail the character test a person had to be charged with a serious crime, convicted, and sentenced to more than 12 months’ imprisonment.
Magistrates mindful of the consequences for asylum seekers have been careful in their sentencing of minor matters, which has displaced some in government. Persons in detention who are charged, whether guilty or not, or even if not charged but reported for bad behaviour in detention, can now enliven the minister’s discretion and be passed to the character determination team who investigates and then sends their deliberations to the principal assessor, who then makes a decision.
The minister then decides whether a person can be released from detention and on what visa this may be. The cases described demonstrate the human cost of this rough justice.
Ali arrived on Christmas Island in October 2010 seeking asylum from a known persecuting regime. He was recognised as a refugee through the determination process and was security cleared 10 months later.
During this time he was charged with smashing a computer and was kept in detention for a further eight months while awaiting court proceedings, even though he was by now a recognised refugee. During the last six months he became extremely depressed and was heavily medicated.
Finally, in February 2012, he was flown from Melbourne to Christmas Island to face the charges. The charges were dropped before he went into court because there was no evidence that a computer had ever existed in the place where he was supposed to have smashed it, and no guards would testify against him.
He had always denied the charge and asked Immigration to look at the security camera to prove that he did not do it. A few days later he was flown back to the Melbourne detention centre and there he waited a further seven weeks before the minister would sign his release.
Even dropped charges “enliven discretion” as to whether a visa will be granted. In all, this young man spent seven months in detention after he qualified for release, waiting for court on charges which were dropped. Rough justice indeed.
Amir was 17 years old when he arrived on Christmas Island. He had his 18th birthday a few months later and was then removed from the family camp to North West Point with the adult men.
He was terrified and lost 20 kilograms in weight as he tried to keep safe in this place of craziness, depression and self-harm. He was taken to a mainland hospital after trying to kill himself.
This skinny teenage boy has been charged with threatening a guard. He was found guilty and given a good behaviour bond. Two years later and 12 months after he was given a positive refugee decision and security cleared, he is condemned to indefinite detention because he automatically fails the character test as a result of the court decision.
There are two ways forward. The minister having had his “discretion enlivened” may use this discretion to personally grant the visa or the character determination team may assess his character and give their recommendations to the principle assessor – and only then can the minister grant the visa.
Otherwise Amir is doomed to indefinite life long detention. Last week, this boy found his roommate hanging. He was too small and slight to hold him up so he held him up on his shoulders until guards came. He suffered a neck injury and was hospitalised for two days as a result. This boy is sick from detention.
These men and boys all have horrific backgrounds of torture and persecution. Their strength and spirit got them out of dangerous countries, across the sea in dodgy boats, and into the Australian detention camps.
It is the treatment in this last destination which is breaking them. On any day in any detention centre around Australia people are thinking about how they can kill themselves. Guards are set to watch them. Doctors are dosing them up with as much sedation as they safely can in order to keep them from killing themselves.
The refugee process now takes two years or more to complete. All this time thousands of men, women and children are kept in locked detention. Until recently a token number were released to keep a “majority” of children out of detention, but still over 45 per cent of children are in locked detention.
While many adults are being released on bridging visas, there are still too many of the most vulnerable, long-term kept in detention for inexplicable reasons.
To indefinitely detain men and boys in detention without judicial review smacks of an executive power which seeks to usurp the power of the courts.
Surely to deny a person their liberty and freedom in a democracy where these values are prized and upheld by law is the roughest of rough justice. This is a shameful position for this nation and places us in some very dubious company.
In order to protect their identities, real names were not used in this article.
Pamela Curr – Campaign coordinator at the Asylum Seeker Resource Centre.