For years, the Australian government had vowed never to allow asylum seekers like Bandesh, who had been processed on offshore immigration centers in Papua New Guinea and the Pacific nation of Nauru, to settle on its soil.
Now, suddenly Bandesh, and six others, were free in Australia.
“I was just shocked, I didn’t know what to do,” said Bandesh, a Kurdish refugee who fled Iran seeking safety Australia. “There is no more headcount, there is no high security, there is no fences. Wow.”
Their release has given hope to other detainees.
“I am very happy for him,” said Bandesh’s friend and onetime roommate Mostafa Azimitabar, who remains detained in a Melbourne hotel with around 60 other men brought to Australia from PNG and Nauru for urgent medical treatment. “His happiness helps me not to give up.”
Australia’s Home Affairs department has declined to comment on the freed men, but their lawyers say they all had upcoming court hearings when they would argue they were being unlawfully detained.
Their release follows a landmark federal court ruling in September that ordered a man be freed under habeas corpus, a centuries-old legal principle that protects detainees from unlawful imprisonment. It’s the first time it has been used in modern Australian legal history.
As the government prepares an urgent appeal against that September ruling in the High Court, human rights lawyers say they’ve been bombarded with requests from detainees to file similar cases.
A sea journey to prison
Bandesh entered Australian waters after July 19, 2013, when Canberra announced that no asylum seekers who arrived by boat would ever be settled in Australia. Successive Australian governments have defended that policy, saying it has deterred both asylum seekers and traffickers who profit from their misery, saving lives at sea.
But Bandesh said he didn’t know about the policy when he came ashore on the remote Australian territory of Christmas Island. “When I reached Christmas Island I thought, This is the freedom, the nightmare’s over, I am a free man now,” he said.
Instead he was assigned a number and crammed into a compound on a remote island, thousands of miles from Australia. Life inside the guarded Manus Island camp could be violent, when tensions erupted into riots.
Bandesh was granted refugee status but told he could only live in PNG or Nauru, another island nation that agreed to detain Australia’s asylum seekers, or any other country willing to take him.
Others applied for a visa to live in the US, where 870 men have been resettled as of October under a deal struck between the countries’ former leaders, according to Australian government figures. Some went home, either voluntarily or by force, and almost 300 remain on PNG and Nauru, of whom at least 70% are refugees.
Medical treatment in PNG and Nauru was poor, and so campaigners pushed for the sickest to be brought to Australia for treatment under Medevac, a law that allowed doctors to decide if detainees needed treatment on the mainland. It has since been repealed.
The law stated the men would be detained while they received treatment for various ailments including post-traumatic stress disorder, asthma, heart conditions, stomach illnesses and deteriorating mental health.
Bandesh was among the sick. He said he arrived in Melbourne in July 2019 to receive dental care and treatment for other mental and physical problems. He said in the past year he’s received one root canal procedure, and was waiting for more.
The detainees are being held in a number of detention facilities, including hotels in Brisbane and Melbourne.
The men in the Mantra Bell hotel in Melbourne complained they were confined to one floor, with no access to outdoor areas and limited sunlight, especially during the coronavirus pandemic, when the only time they left the hotel was for medical appointments.
Australian Human Rights Commissioner Edward Santow said the commission’s latest inspection of the country’s detention facilities confirmed his concerns about the use of closed facilities to house asylum seekers and refugees brought to Australia for medical treatment.
“We are concerned that ongoing closed detention is likely to adversely affect the health of the people in this cohort,” Santow said. He said the release of the seven men was a “positive step,” but that all detainees receiving treatment should be released to the community, unless individuals posed a security risk.
The government said the men need to finish their treatment, then move on.
“Transitory people are encouraged to finalize their medical treatment in Australia so they can continue on their resettlement pathway to the United States, return to Nauru or PNG, or for those who are not refugees, return to their home country,” a Home Affairs spokesperson said in a statement.
“No one under regional processing arrangements will be settled in Australia.”
Bandesh said he thought the government would never free him, so he got a lawyer and decided to take his case to court.
In September, a Federal Court judge found that a Syrian man who was held in detention for months after his visa was canceled was falsely imprisoned because the authorities were not actively processing or deporting him.
Justice Mordecai Bromberg said the government should have given the man a protection visa, as it was unable to send him to Syria because of its international obligations not to return people to harm, and ordered him to be released.
He made the order under habeas corpus, a legal writ used in common law countries to free people considered to unlawfully detained.
The judge made it clear in his ruling that “a person can only be detained for a purpose, which is admittance or removal from Australia, and that purpose must be pursued,” said the Syrian man’s lawyer Alison Battison, from Human Rights for All, a pro bono human rights law firm. “The new piece of the puzzle is the pursuing of a purpose. You can’t just warehouse somebody.
“It’s an absolute game changer in terms of human rights law in Australia, and it has chipped away and counteracted almost 20 years of indefinite detention,” said Battison. The Attorney General intervened to request an appeal in the High Court as soon as possible.
Lawyers for the seven men freed also planned to use habeas corpus in their submissions.
“Our submissions were such that we requested for their freedom and there was nothing else that would have satisfied us other than their freedom,” said legal representative Noeline Balasanthiran Harendran from Sydney West Legal.
The September ruling is one of a number of recent immigration court cases that have gone against the government. In June, a federal court judge threatened to bring contempt of court charges against Home Affairs Minister Peter Dutton for failing to make a decision on whether to grant an Iranian man a protection visa. Days later he made that decision: visa denied.
The same federal court judge then accused acting Immigration Minister Alan Tudge of engaging in criminal conduct by failing to release an Afghan man, who had fled the Taliban, and had been awarded a visa by a tribunal. Tudge denied the claim and the man was subsequently released.
Then, earlier this month, a High Court ruling cleared the way for asylum seekers and refugees to file claims in the federal court alleging the government failed to provide adequate medical care. At least 50 cases are pending, according to the National Justice Project, a non-profit that provides legal assistance to vulnerable people.
A ray of hope
When word got out that the minister had granted some men visas, a ripple of excitement spread through the detention system.
Human rights lawyers said they were flooded with calls and messages from detainees asking if their case could be considered, and advocates rushed to renew their pledges to offer men accommodation, if they were released.
“Support has been offered by an amazing network of groups and individuals, including accommodation,” said Jana Favero from the Asylum Seeker Resource Centre. Some men even asked for help updating their CVs, said refugee advocate Jane Salmon.
More cases are expected to be filed, but law firms and rights groups have warned detainees that attempting to pursue similar cases involves “very serious risks” that could see them forcibly removed from Australia.
Human Rights Lawyer George Newhouse said the men released face an uncertain future. The men’s lawyers declined to disclose the terms of their visas for privacy reasons, but it’s believed they are on bridging visas, typically granted for a short period only, with no guarantee they’ll be extended. It’s believe the men have the right to work, but will receive little government support.
“They are in a uncertain situation,” said Newhouse. “The system is designed to punish them for having the temerity to seek asylum in this country.”
From one hotel to another
Last Monday, as the men in Mantra hotel considered their options, they were informed by Australian Border Force officials they would be moved to a new place of detention. The lease on their hotel was expiring on December 30, a Home Affairs spokesperson said.
On Thursday, dozens of police were deployed to the hotel, including some on horseback who formed a corridor to prevent protesters from blockading the convoy of buses and police escort vehicles.
“The level of policing that was used to move 60 traumatized men just shows the ridiculous nature of this policy and hopefully Australians will finally realize that this is just absurd and it has to end,” said Graham Thom, refugee coordinator for Amnesty International Australia.
The men weren’t told where they were would be held until the buses pulled up at the new location, the Park Hotel.
There, the refugees have access to a restaurant on the first floor for meal times, as well as the roof, said Azimitabar.
There is more outdoor space there, but also reminders of other places he’s been held since arriving in Australian waters.
“Everything is white in this place, the corridor, the room. It makes me very anxious,” he said. “It reminds me of the time when I was in Manus detention in Oscar compound for three years. Everything was white. I was really hurt from that time.”
As Azimitabar and the other men settled into their new hotel rooms, protesters rallied outside, chanting “free the refugees.” Azimitabar couldn’t see or hear them. He doesn’t have a view of the street from his room; his window overlooks a cement wall.
Many of the other windows in the hotel are tinted, blocking the men from view.
“I waved at them but they couldn’t see me,” Azimitabar said. “I feel like a ghost.”
It is unclear if there will be more releases before the High Court appeal. The Home Affairs department said it was “aware” of the September ruling, but as it was subject to appeal it was “not appropriate to comment further.”
Bandesh said he worried for Azimitabar and the others, who advocates say are slipping further into despair about having lost years of their lives in detention, when all they wanted was safety.
“Of course, I’m worried,” Bandesh said. “I just want him to be free, like me.”