LIFE IN REVIEW
IT'S almost dinner time in a leafy neighbourhood in Sydney's outer west. A group of small boys is immersed in a game of soccer. A toddler glides shakily by on the bike he has only just learnt to ride. A mother, wearing a striking red sari, ambles along the footpath, keeping a detached but vigilant eye on her little ones.
It could be a scene from any Australian suburb, except for one detail. This is a gated community where the gates are designed to keep the residents in, rather than would-be intruders out. Life at Villawood is unhurried because there is nothing to hurry to, or for, or from. Those who live here have not the slightest inkling when, or if, they will ever be allowed to leave.
I'm here to visit Ranjini, the 33-year-old Sri Lankan whose world was upended nine months ago when she arrived for what she understood would be a routine monthly appointment with immigration officials in Melbourne, only to be told that ASIO had deemed her a threat to Australia's national security.
The shock was more pronounced because Ranjini had only begun a new life in Melbourne one month earlier. After arriving on Christmas Island in April 2010, she had spent time with her two boys in detention centres in Perth and Adelaide before being released into community detention in Brisbane in April 2011. Her refugee status was recognised six months later.
Then, with the apparent blessing of immigration officials, she had married Ganesh, a Tamil refugee she met in Brisbane, moved to Melbourne and enrolled her two boys at Mill Park Primary. All she required to receive a protection visa was her security clearance.
The day after she was whisked away to the Villawood residential housing complex came confirmation that she and Ganesh were going to have a baby. Now, Paari, another boy, is six weeks old and Ranjini is recovering from a difficult caesarean birth.
I arrive with Ganesh, an information technology consultant who has moved to Sydney to be close to his family, and meet the two older boys in the visitors area before Ranjini joins us. Both are polite, alert and affectionate. Kathir, the younger one, turned seven the previous day and the family was allowed to celebrate the birthday at the nearest McDonald's, under the gaze of security guards.
When Ranjini joins us, I'm struck by the contrast of sad eyes and a warm smile, and the improbability that she could represent a threat to anyone. I am not allowed to formally interview her or take notes during the visit, but it isn't long before tears form rivulets down her cheeks and Ranjini says: "I don't understand why I am here."
We talk about the trip from India after the death of her husband, who fought for the Tamil Tigers, and she tells how the overcrowded boat was adrift without fuel for a week, and five young men swam for the shore they could not see, never to be seen again. She talks about the images of dead people, mainly children, from Sri Lanka's civil war that come back at her all the time.
She tells me about a recurring dream where Ganesh is allowed to live with her in detention and how, in the dream, this makes her happy but him sad. She smiles, then cries.
I play cricket with the boys while she prepares dinner alone in the unit that has been configured to accommodate two families. I am not permitted into the unit. Nor is her husband, who was able to enter for a few weeks in daylight hours after the birth. So we sit in the visitors' area and Ranjini limps down with the meal she has prepared: combination fried noodles and chicken drumsticks, lightly spiced with turmeric and lemon.
Ranjini is the face of Australia's human rights conundrum - one of 56 people who were found to be refugees but were deemed security risks by ASIO and not told why.
ASIO says it can't tell them the specific allegations against them for operational and security reasons, insisting it behaves ethically and professionally. The result is that the refugees have languished in detention, in some cases for more than three years, unable to defend themselves or plan for the future.
They are a paradox: people who fled persecution to what lawyer David Manne has dubbed "a cruel and inhumane Kafkaesque twilight world", who escaped their countries in fear of their lives, only to be haunted by suicidal thoughts in detention here.
When Ranjini's story was published in The Age after she returned to detention, it increased the pressure on the Gillard government to find a better balance between protecting security and meeting this country's treaty obligations to protect refugees. Several of those who had come to know her since her arrival simply could not comprehend that she could be considered dangerous. A website, lettersforranjini.com, was set up and attracted 265 letters of support and some 12,000 visits from 94 countries.
Now, the fate of Ranjini and the other 55 refugees rests in the hands of a retired Federal Court judge, Margaret Stone, who was assigned the task of reviewing their cases after the High Court struck down the regulation that prevented them from being granted protection visas.
Stone's appointment was not a response to the High Court decision, which is still being considered by the Gillard government. Rather, it was a reaction to calls from a host of government and non-government agencies, a parliamentary committee and the ALP national conference for a more humane approach.
Last August, for instance, the Commonwealth Ombudsman noted "with growing concern" the increasing number of people held in immigration detention for two years or more who have been found to be owed protection but have received adverse security assessments.
No one put the case for a review mechanism more succinctly than Daryl Melham, the veteran Labor MP who chaired an inquiry into Australia's immigration detention system. "I'm not trying to jeopardise national security, but I do not accept the argument that there is not one person in the whole of Australia who can adequately review an assessment of ASIO when someone's liberty is deprived," he said last March.
Stone was appointed some seven months after the inquiry's report was tabled and took up the position of independent reviewer in December. After receiving her own security clearance and receiving detailed briefings from ASIO, she wrote to all those with adverse assessments, inviting them to apply for a review of ASIO's finding. All 56 took up the offer, and were then asked if they wanted to offer any information to assist Stone in prioritising the cases.
"Many have been in detention a long time and, as a consequence, have psychological and physical problems, so it's difficult to assign priority, but one does one's best," Stone told Fairfax Media.
The next step was to ask ASIO to provide an unclassified summary of its reasons for the adverse assessments, which could then be forwarded to the refugees and their lawyers. So far, 11 refugees have received the summaries and been invited to provided a written response within 45 days. Stone stresses her intention to be flexible about the deadline, and is inclined to agree to requests if the refugees wish to make oral submissions, which would entail her visiting them in detention.
"I think there is an element of generosity you can have here," she explains. "These people are very powerless and, if they want to make oral submissions, even if I think it probably wouldn't add very much, I think it would be a good idea to go and listen to them.
"This is a very hard time for them and a hard process. There is very little I can do about that and it's going to be especially hard for those whose review is adverse - where my finding is that ASIO's assessment is appropriate. I can't do anything about that, but what I can do is make sure the process is as open and accessible and, if I can, as friendly as possible."
It is a challenging assignment for Stone, but one she is well qualified to undertake, having spent 12 years on the bench of the Federal Court.
"Yes, this is particularly traumatic, but the thing about being a judge is that by definition, 50 per cent of the people before you go away unhappy," she says. "Imagine if you said to a doctor, 'Fifty per cent of your patients will by definition go away dissatisfied with what you do'. They'd be appalled. So, yes, of course it's hard, but it's not unfamiliar."
Stone notes one important difference between sitting in court and reviewing ASIO assessments. "When you sit in court and determine a case, you're looking at what happened in the past and saying, 'This is the proper legal analysis of the rights and liabilities of the parties'.
"ASIO has to take it one step further. They have to say, 'Let's look at the past in relation to this person, understood in the context of everything we know about the particular situation that might give rise to security concerns, and now - and this is the hard bit - make a prediction about what might happen in the future'.
"What you are judging is a prediction, and whether you think there were good grounds for that prediction. That's a much harder task. In many ways it's calling on elements of judgment that are different to what you get in a court."
To undertake the review, Stone has access to all the classified material on which ASIO made its assessment, as well as many hours of tape-recorded interviews between ASIO officers and the refugees. The problem for the refugees, and their lawyers, is that they are only being given a sanitised, or unclassified, summary of the cases against them.
Another worry is that Stone's recommendations are just that, recommendations, with no guarantee that ASIO will accept decisions that adverse assessments were flawed.
When pressed on what would happen if Stone found an adverse assessment was not justified, former attorney-general Nicola Roxon, who appointed Stone, replied: "It would be very difficult for any Director-General [of ASIO] not to comply with a finding from this independent reviewer."
Manne, the lawyer who led last year's successful High Court challenge, and whose Refugee and Immigration Legal Centre is representing 31 of the 56 refugees, says the inherent weakness of the process is that it is not set in law and that ASIO is not bound to follow Stone's recommendations. This, he says, is both extraordinary and disturbing.
"It's not a preferred model, but we're certainly going to give it everything we've got on behalf of our clients," he says.
For her part, Stone expresses confidence about the process. "ASIO, it seems to me, is a very professional organisation and they have a certain confidence in their own decision-making, and that decision-making is not just one person; it goes through many tiers. They accept nevertheless that informed minds can differ, [and] I am absolutely sure that if I said, 'I don't agree with your assessment', that they would take it very seriously. Ultimately, they're the custodians of security."
Another concern, but not one Stone is charged with addressing, is what will happen to those whose appeals fail. Here, Manne and agencies, including Amnesty International, point out that many comparable countries, including Britain and Canada, have much more humane ways of dealing with this situation, such as monitoring systems that enable those with adverse assessments to live in the community.
Many of those with adverse assessments are being held at a low-security detention centre at Broadmeadows. Several have wives and children overseas they have not seen for six years and they have suffered depression and contemplated or attempted suicide while in detention.
Brad Coath, a community worker, has visited them regularly over the past 12 months, including in hospital after acts of self-harm. Although their spirits lifted after the High Court win in October, he says many are now consumed with a sense of hopelessness.
Their plea, like Ranjini's, is as simple as it is plaintive. It was expressed by one of more than a dozen young men I spoke to at the centre this week. "All we are asking and begging is, please, give us a chance to show our good character."