A refugee who fled a brutal civil war in his homeland and who Australia has agreed it must protect, has been held in immigration detention for more than 11 years, caught in an arcane legal limbo and potentially facing a limitless incarceration.
Alex – a pseudonym (the Guardian has chosen not to reveal his name for safety reasons) – has no criminal convictions and faces no charges.
But he is one of the longest detained people in Australia’s immigration detention system.
He has not seen his family in more than a decade and has never met his son, who is now 10 years old.
“After more than 10 years, I want to live freely,” he has told friends from detention.
In 2009, Alex fled Sri Lanka in what the federal court heard described as an “extraordinary emergency”.
Of Sinhalese ethnicity and a member of Sri Lanka’s Catholic minority, Alex had been kidnapped and mutilated because of his association with an opposition political party, and his business partner was seized by security forces, before later being found dead.
Alex had also witnessed the murder of more than a dozen men by the secessionist Liberation Tigers of Tamil Eelam – the Tamil Tigers.
The Tigers waged a 26-year civil war against Sri Lankan government forces, with the violence reaching a brutal conclusion in May 2009.
In March of that year, seeking to flee the steadily escalating violence in Sri Lanka, Alex and 31 others pooled their money to buy a small fishing boat. They left the country from a port city just north of the capital, on 31 March, arriving in Australian waters on 22 April. They were intercepted near Barrow Island, off Western Australia, and taken into immigration detention.
Alex, while an organiser of the boat journey, made no profit from the trip.
But because the boat was registered in his name, he was charged and convicted in 2010 of “organising the bringing of groups of non-citizens into Australia”, and sentenced to five year’s jail.
His conviction, however, was quashed on appeal, the court of appeal ruling that the jury had been misdirected over Alex’s defence that the boat journey had been organised in circumstances of a “sudden or extraordinary emergency”.
“There is a significant possibility that the appellant has lost the chance of an acquittal,” the Western Australian supreme court said.
The commonwealth director of public prosecutions withdrew the charge, arguing it “was not in the public interest” for another trial to be brought, and Alex was released from prison.
But despite the quashing of his conviction and the withdrawal of all criminal charges, Alex was not released into the community, but into immigration detention, where he remains, more than eight years later.
He has been bounced between a string of onshore detention centres, and sent back to Christmas Island twice. He fears being sent back there again, where communications are far more limited, and – pending legislation currently before parliament – he could have his phone, his lifeline to his family, taken from him.
Australia’s immigration assessment authority found Australia legally owed Alex “complementary protection”, akin to refugee status, and that if he were returned to Sri Lanka he would likely be imprisoned, with a “strong likelihood” he would suffer “serious physical mistreatment including torture”.
Australia cannot legally return Alex to Sri Lanka.
The Australian government also accidentally leaked his personal details online, potentially jeopardising his safety.
But when Alex applied for a safe haven enterprise visa to live in Australia, it was rejected by the immigration minister David Coleman, who said he failed the “character test” provisions of Australia’s Migration Act.
The minister said he “reasonably suspected” Alex had “engaged in the offence of people smuggling”.
The minister said he noted submissions before court that Alex had acted “out of necessity to save his life”, and that he had displayed “good conduct while in detention despite the prolonged nature of his detention … without having been convicted of a crime”.
But the minister said: “There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.
“Irregular maritime migration remains a continuing challenge for Australia and therefore deterring people to become involved in such activity must continue to be a priority while noting that people seeking asylum is a strong motive for their actions. I find that [Alex]’s actions are serious as his conduct has sought to circumvent Australian immigration laws.”
That decision was challenged in the federal court, and in February this year, the court ordered that the minister again assess Alex’s claim.
But in the seven months since, nothing has happened, and a further federal circuit court action has now been launched seeking to compel the government to make a decision.
“Our argument is very plain, the government has an obligation to make a decision within a reasonable period, and three years – in the context of a decade in detention – is not a reasonable period.” Alex’s lawyer Sanmati Verma told the Guardian.
Verma said Alex was “extraordinarily distressed” by his situation, particularly the threat of being returned to the isolation of Christmas Island and the fact he faces, potentially, a “ceaseless detention”.
“From Alex’s point of view, he’s succeeded in a court proceeding, and yet nothing has happened, that’s a particularly hopeless situation to be in, when you win and your life doesn’t change.”
Verma said the extraordinary powers granted to the minister by the “character test” provisions of the Migration Act were dangerous.
“It is a particular interest of this government, this minister, and this department, to create a set of powers allowing the minister to revisit and gainsay the decision of a court.
“This is the minister saying ‘yes well, we have the court of appeal saying, according to Australian law, your conviction was defective, and you were not re-tried, but still I think you did it’. That is very dangerous and raises questions around the separation of powers.”
A spokesman for the Department of Home Affairs declined to answer questions on Alex’s case, saying “as the matter is before the court, it would be inappropriate to comment”.