Court orders mute asylum seeker detained in Australia be released into community or moved to Nauru

·4-min read
<span>Photograph: AP</span>
Photograph: AP

A judge has ordered that a mute asylum seeker who has been detained in Australia for eight years be moved to Nauru or released from detention and allowed to live in a house in Perth pending the transfer.

If the man – known as AZC20 in court documents – is ultimately transferred to Nauru he would be the first person sent offshore by Australia in more than seven years.

AZC20, an engineer who fled Iran seeking protection in Australia, has been shunted between detention centres.

The indefinite nature of his detention has damaged his mental health, the federal court has heard. In a judgment delivered late last week, justice Darryl Rangiah noted AZC20’s “chronic demoralisation” and said the “unchallenged evidence is clear that ongoing and prolonged detention in the environment of detention centres is contributing to the applicant’s poor state of mental health”.

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After a suicide attempt in 2015, AZC20 was left unable to speak, the court heard. He has been diagnosed with psychogenic mutism. All subsequent interviews have been conducted with AZC20 writing answers.

Guy Coffey, a clinical psychologist, told the court “there is unequivocal clinical and research evidence that the mental health of people held in immigration detention deteriorates over time [and] exposure to violence hastens that deterioration”.

Coffey said AZC20’s mental health would not improve while he remained detained, but that if he was “released into the community and received appropriate psychological treatment his psychological condition would improve”.

The judge has ordered AZC20 be moved from the Perth immigration detention centre to Nauru, Australia’s only remaining offshore processing island. Australia’s last transfer of a new asylum seeker to its Nauru offshore processing centre was in September 2014. More than 100 people sent there by Australia remain on the island.

The judge found that AZC20 wanted to go to Nauru: asylum seekers and refugees held there by Australia have been free to move about the small Pacific island, about the size of Tullamarine airport, though not leave, since 2015.

“If the applicant is taken to Nauru, the applicant will be at liberty in that country. It is evident that the applicant regards liberty in Nauru as preferable to detention in Australia.”

Rangiah imposed a deadline: if AZC20 is not moved by 27 October he will be allowed to live in a house in Perth, offered by friends, where he will be accompanied by guards at all times. His friends in Perth have offered to care for AZC20, providing food and other essentials at no cost.

The judge found AZC20 should have been taken to a regional processing centre years ago. The government’s evidence, the judge said “does not explain why the applicant had not been taken to a regional processing centre”, as required by the Migration Act.

He said the government was wrong in arguing it could indefinitely detain AZC20 in Australia. “The fault is the secretary’s [of the home affairs department] refusal or failure to perform the duty to take the applicant to Nauru.”

The government argued the court could not order that the man be “detained” in a private residence of the court’s choosing and the conditions of detention were the prerogative of the minister.

But Rangiah disagreed and said the court had the power to order the form and condition of detention. AZC20 will be guarded at all times while living in Perth and defined, legally, as still being in “detention”.

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AZC20 arrived in Australia by boat in July 2013. He was held in detention for more than two years before being granted a temporary protection visa, claiming he faced persecution on account of his faith. His claim for protection was rejected and appeals lost.

Since then, he has remained in detention: Iran will not accept his involuntary return but the Australian government says it is in “ongoing discussions with Iranian authorities as to whether this policy might be changed”.

Sarah Dale, the principal solicitor at the Refugee Advice and Casework Service, said the federal court decision demonstrated the court’s authority to act in cases involving prolonged or indefinite detention.

“This judgment opens up new possibilities for people who are being indefinitely detained,” Dale said. “It is a reminder there are readily available alternatives to closed detention that are safer and significantly less costly to the public.”

Dale argued the facts of the case showed offshore processing, far from being consistently and universally applied, was a policy that randomly selected people for transfer to Nauru or PNG’s Manus Island.

In Australia, the crisis support service Lifeline is on 13 11 14 and the national family violence counselling service is on 1800 737 732. In the UK, Samaritans can be contacted on 116 123. In the US, the suicide prevention lifeline is 1-800-273-8255. Other international helplines can be found via www.befrienders.org

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