Home affairs minister ordered into mediation with Afghan refugee detained in Australia

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The Australian home affairs minister has been ordered into mediation with an Afghan refugee who assisted coalition forces during the Afghanistan conflict and remains in detention in Australia after eight years.

A federal circuit court judge on Tuesday said the man “is a refugee and requires resettlement”.

The judge, Rolf Driver, ordered mediation between the Afghan man – a former member of the country’s national security directorate – and the home affairs minister over the man’s ongoing detention in Australia, which he says is frustrating his efforts to rescue his wife and four children from Afghanistan.

Related: Afghan refugee sues Australian government, saying detention prevents him saving his family from Taliban

Anonymised in court documents as FGS20, the man has repeatedly requested to be returned to Papua New Guinea, where, outside the confines of detention, he says he could apply to be reunited with his family, work to raise money for their escape from Afghanistan, or approach the US embassy about evacuation for his family members.

The US government has announced plans to evacuate Afghan nationals who assisted the US military effort, and their family members, to military bases on US soil.

The court has heard that FGS20, an ethnic Tajik, was recruited to Afghanistan’s national security directorate aged 17 and worked as a driver and scout for a regional chief of intelligence. He worked alongside US forces, and included in his government file are certificates from the US military recognising his service.

Now 37, FGS20 arrived in Australia by boat in 2013 having fled the Taliban who had attacked him, thrown grenades into his house and sent repeated warning letters he would be killed because of his work for the Afghan government and in assisting coalition forces.

Fifteen members of his extended family have been killed by the Taliban, including his brother who was shot last year. His wife and four children remain in Afghanistan but are trying to find a way out, as resurgent Taliban advance across the country. Guardian Australia is not reporting FGS20’s name to protect his family. Permission has been granted to publish historical photographs of him, which are also before the court.

In an email sent to his case manager in the Department of Home Affairs from a Melbourne hotel detention centre where he is now held, FGS20 pleaded to be allowed to help his family.

“Every day Afghanistan is getting worse,” says the email, which was read in an earlier court hearing. “My family is in a dangerous place and I need help now please. If you wait I will lose my family. Why do you wait? The Taliban want to kill my family.

“You need to find some way to move them please because I don’t want them to die. It is enough that you have kept me in detention for eight years for no reason.”

FGS20 spent nearly six years held on Manus Island and in Port Moresby as part of Australia’s offshore processing regime. He was brought to Australia in July 2019 – under the now-repealed “medevac laws” – suffering a multitude of physical and mental health issues.

He has received some medical treatment but several health professionals presented evidence to the court that his health problems – particularly severe headaches – were “exacerbated by his detention”.

In a judgment delivered on Tuesday, Driver found FGS20 should not be in detention or in Australia.

“He is a refugee and requires resettlement,” he said. “It appears that Australia is not an available option to him for resettlement. He was free in the PNG community prior to being brought to Australia for medical treatment. The applicant has made three requests to be returned to PNG and those requests should be acted upon.”

The government had made only “preliminary” steps towards moving FGS20 out of detention and returning him to PNG, complicated by Covid-19 travel restrictions, the judge said.

Driver ordered mediation regarding movement out of Australia’s detention system and “when such removal will occur”. The judge declined to find that the detention was unlawful – ruling that FGS20’s current detention was justifiable to ensure that he was available to be removed from the country – and he dismissed a writ of habeas corpus to release him from detention.

FGS20’s lawyer, Daniel Taylor, asked the court to expedite mediation given the rapidly deteriorating security situation in Afghanistan, arguing that FGS20’s family members were at acute risk of Taliban violence because of their relationship to him.

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