Pro-bono unlawful detention class action launched for people seeking asylum

26 October 2017
A pro-bono class action has been launched by Maurice Blackburn Lawyers, alleging that people seeking asylum who were never likely to be sent offshore and were subjected to excessively long visa processing periods were unlawfully detained by the Commonwealth Government.

The case is being brought by a four-year-old boy known as DBE17, through his Litigation Guardian Sister Marie Theresa Arthur. DBE17 was born into detention in Darwin in September 2013, and was detained on Christmas Island with his family for the first 482 days of his life. His family was granted a visa in early 2015.

Maurice Blackburn head of Social Justice Jennifer Kanis said the class action would be open to people seeking asylum detained for more than two working days in any part of Australia, including on Christmas Island, from August 2011 to July 2017.

The class action alleges that  people seeking asylum were unlawfully detained on the basis of unreasonable visa delays, and that they could not lawfully be  taken to Nauru or Manus Island from 12 August 2012, despite the Commonwealth later declaring that all persons arriving by boat in Australia would be sent offshore.

“This pro-bono case is significant in shining a light on the Commonwealth’s harsh border policies and in challenging the unlawful detention of detainees under Australian law,” Ms Kanis said.

“The Commonwealth were very clear in declaring in July 2013 that anyone who arrived by boat would be sent to Manus Island or Nauru, despite that many of these people seeking asylum could never be sent offshore – namely pregnant women, young children and their families - because of significant limitations in the ability of Manus Island and Nauru to safely take them.

“The Commonwealth knew this and took no action, instead leaving these detainees to languish in detention for years under the guise that they might eventually be sent offshore.

“This is not only terribly cruel, but something we believe constitutes false imprisonment.

“The class action also looks at people seeking asylum who were detained prior to  the Commonwealth’s decision to send boat arrivals offshore, and who were eligible to apply for a visa to come to Australia.

“These detainees we allege were also unlawfully detained because of excessive and unreasonable delays in the processing and approval of visas by the Commonwealth.

“For some of these detainees, the visa approval process took years, despite the Immigration Minister having the ability to grant a visa to a detained person at any time.

“We will be asking the Court to determine what a reasonable timeframe should be for the approval of a visa or to determine visa eligibility - in our view a reasonable time frame is two working days to six months, not years as we have seen on repeated occasions with detainees.

“This is a significant case both in seeking acknowledgement that people were unlawfully detained, but also in seeking a more humane approach to the Commonwealth’s detention of asylum seekers.

“It is patently cruel and wrong to leave vulnerable people who are seeking asylum, including families with young children, in detention indefinitely with no end in sight and little clarity about what their future holds.

“We hope that this case will lead to recognition from the Commonwealth Government that a fairer and more decent approach to the processing of people seeking asylum is urgently needed,” she said.

DBE17’s father, known as ‘F’, said the class action was important in seeking acknowledgement from the Commonwealth that the prolonged detention of people seeking asylum with no end in sight could not continue.

“For my family the situation felt very hopeless,” F said.

“Each day we had no idea what would happen to us: where we might end up, when we would get our visa and when our detention would end.

“Our family was in detention for almost 18 months before we were finally granted a visa.

“Every day we lived in fear of being sent to Nauru. It was very cruel for our children especially, we didn’t know what was happening and for them it was harder still - no family should have to raise their children like that.

“Our child had just been born and already we were told he had to be sent to Nauru which terrified our family.

“Living without hope was so difficult for my family.  If you take our hope, you take everything away from us,” he said.

Potential group members can register their interest in this class action by contacting Maurice Blackburn Lawyers on 1800 930 956 or by email at aslyumseekersclassaction@mauriceblackburn.com.au

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