The UN Human Rights Council’s (UNHRC) Working Group on Arbitrary Detention declared the man’s imprisonment to be “de facto”, “indefinite” and in breach of international law.
The asylum seeker, who prefers to be known as Mr A for his family’s safety, fled Iran in 2010 via Indonesia, arriving in Australia later that year by boat. He was held in immigration detention for the next 18 months while his case was assessed before being given a bridging visa.
He spent the following six years living as an asylum seeker in the Australian community. But in 2017, he was detained again.
“He was in a car, which he was test-driving to buy. He was with a friend. There [were two weapons] in the car,” said Alison Battisson, Mr A’s lawyer and director and founder of Human Rights for All, an Australia pro-bono law firm that works with refugees and asylum seekers.
Mr A was charged with four offences and found not guilty of three of them. The fourth never proceeded to a conviction and he does not have a criminal record.
But by the time Mr A was acquitted of the alleged crimes, he was already in immigration detention. His visa had been cancelled under Section 501 of the Migration Act, under which any temporary visa holder charged with a crime or otherwise found to have character concerns must be detained.
Desperate for release after nearly six years of failed applications for freedom, Mr A brought his case before the UNHRC Working Group on Arbitrary Detention two years ago.
The group’s findings, handed down last month, unequivocally condemned Mr A’s detention.
The group reported that the Australian government had not presented any “particular reason” for the detention, “such as an individualized likelihood of absconding, a danger of crimes against others or a risk of acts against national security”.
The group found Mr A’s “deprivation of liberty” to be in contravention of several legal instruments.
The group also “strongly condemned Australia’s detention of Mr A, not only because of the nature of the detention itself, but because he’s an Iranian dissident and because of his deteriorating mental health”, said Battisson.
Mr A suffers from depression, which has been causally linked to his detention, and is unable to receive effective treatment.
“You’re getting counselling on the impact of detention and then after the counselling session, you go back to detention,” she said.
The UNHRC group has called for Mr A’s immediate release, and to grant him “compensation and other reparations, in accordance with international law.” It has also urged the Australian government to investigate the circumstances surrounding his arbitrary detention, and to “take appropriate measures against those responsible for the violation of his rights”.
No punishment mechanisms
Under a longstanding and controversial policy, any asylum seeker arriving in Australia by boat is sent to offshore detention centres for processing and told they will never be allowed to settle in Australia.
The centre-left government of Anthony Albanese, which was elected last year, has shown no inclination to change the policy and Battisson is sceptical that the government will take any of these actions.
When it comes to boat refugees, Australian politicians “are arrogant enough” to operate as though international law does not apply to them, she said.
The UN has no applicable punishment mechanisms to push them to act.
“Almost every UN body that looks at anything to do with human rights and detention has condemned what Australia is doing,” said Battisson. “But they’re not going to go to the Security Council and ask for sanctions.”
Mr A is now 43. He said being detained for so many years has “wasted [his] life”.
“This is all torture,” he said. “Every day I have these thoughts. We are waiting every hour for our names to be called by immigration over the loudspeaker in detention, to be released.”
“I just stay in my room thinking,” he continued. “I think to myself, ‘what did we do for this to happen to us?’”
Mr A is not alone. According to political activist Ian Rintoul, the cancellation of any temporary visa on character grounds is common – refugee visa or not.
“Anyone who’s a non-citizen can have their [visa] cancelled under Section 501,” he said.
The difference between temporary visa holders, such as tourists, and refugees and asylum seekers is that the former can typically go home, he explained. Refugees and asylum seekers cannot.
The 1951 Refugee Convention, which Australia has signed, defines a refugee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”
“That’s why the detention is indefinite – because the government can’t remove you,” said Rintoul, adding that by law, the government can detain a person indefinitely if they cannot remove them.
‘I cannot go back’
Mr A is no exception to this. He has not been recognised as a refugee by the Australian government – he is still an asylum seeker – but he says he cannot go home.
“My country is occupied,” he said, referring to the Iranian government’s oppression of the Ahwaz ethnic group. “It has been occupied by Iran for 95 years. If I go back, not only will my life be in danger but that of all my family. I cannot go back.”
When Mr A lived in Iran, he was a vocal member of the National Liberation Movement of Ahwaz (NLMA). He worked to raise awareness about Ahwaz’s Arab history and origins as well as their alleged persecution by the Iranian government.
“We can’t work, we are not allowed to speak our language, to wear our clothes. Iran denigrates our belie[fs] and culture,” he said.
He was arrested, beaten and interrogated for three days in 2009 for wearing traditional Arab dress. The following year, the government took him into custody again for having Arab clothes in the back of his car.
Mr A managed to escape the prison, went straight to the airport and left Iran on a plane to Indonesia in the middle of the night.
“I had an overwhelming feeling of fear. Every moment I thought they will arrest me,” he said.
In the years after Mr A left Iran, members of his family back home were arrested on several occasions and two of his friends who also worked for the NMLA were killed for trying to flee the country.
“We maintain that [Mr A’s] risk profile is such that he is a refugee,” said Battisson.
Mr A’s case has been put forward to the Australian government and his team is waiting for a response.
A spokesperson for the Australian Department of Home Affairs told Al Jazeera it could not comment on individual cases but that the government was “committed to humane and risk-based immigration detention policies” where “detention is used as a last resort”.
Immigration detention was subject to “regular review” they added.
“Those with new, credible protection claims relating to changes in their country of origin or personal circumstances, may request Ministerial Intervention,” the spokesperson said in a statement.
In the meantime, Mr A remains detained. All he wants to do, he said, is live his life “like everyone else”.
“This detention affects our morale and spirit. We don’t know what to do,” said Mr A. “I fled from prison in Ahwaz and I came to prison here. As a human, I want to live my life. I’m really very tired.”