There are calls for new laws to make the Australian Security Intelligence Organisation periodically review its security assessments of asylum seekers and refugees.
The calls come after ASIO overturned an adverse assessment that forced a Sri Lankan woman to be kept in detention, even though she had been given refugee status.
Some human rights activists are cautiously optimistic the case will bring hope to other refugees being held in indefinite detention.
Hannah Sinclair reports.
The decision by ASIO to overturn a negative security assessment was only the second of its kind.
Now, 41-year-old Sri Lankan refugee, Manokala Jenaddarsan and her six-year-old son, have lodged new applications for protection visas.
Greens Senator Sarah Hanson-Young told the ABC the ASIO assessment procedure is shrouded in secrecy.
“This mother and her child had no idea what the effective charges were against them. They weren’t able to put forward their side of the story. There was no independent arbiter. And we find out now 18 months later, that the original decision was wrong.”
A negative security assessment means refugees can be held indefinitely, without knowing the details of why they are deemed a threat to security.
Ms Jenaddarsan, who is an ethnic Tamil, fled from Sri Lanka after her husband was killed during the long-running war between government forces and Tamil separatist rebels.
She was in the final stages of getting her refugee claim processed in 2011 when she was issued with the adverse security assessment, leaving her detained at Villawood detention centre in Sydney.
Spokesman for the Tamil Refugee Council, Trevor Grant, says after becoming a widow, she faced great adversity.
And he says she is no threat to security.
“She lived on the side of the road for 6 months, and in temporary shelters with her little baby. They’ve been through terror, we have been terrorising them again when they come here asking for our help.”
The Department of Immigration has confirmed there are 54 refugees currently facing adverse security assessments.
The group, ChilOut, which campaigns to get children out of detention, says nine children are affected by these assessments.
Campaign director Sophie Peer says ChilOut supports the Greens’ call for more regular reviews of ASIO’s decisions.
But she says the reviews shouldn’t be conducted by ASIO itself.
“It should absolutely be an independent review process. Many other nations have independent reviewers of their security systems and bodies, and there is no reason why Australia shouldn’t have the same.”
Retired Federal Court Judge, Margaret Stone, has been conducting an independent review of ASIO’s adverse assessments.
But she had reportedly not yet considered Ms Jenaddarsan’s case.
Spokesman for the Tamil Refugee Council, Trevor Grant says it’s a question of luck whether a decision is reviewed internally by ASIO.
“And this is the lottery these people are living with. And meanwhile they are having to remain in detention and suffer all sorts of psychological trauma.”
Federal Attorney-General Mark Dreyfus says the reversal of the initial decision on Ms Jenaddarsan shows the current review system works.
But the Greens’ Senator Sarah Hanson-Young disagrees, saying a change in the law is needed.
“It’s not a system that’s working. The fact that the ASIO assessment was reversed means that we need a system set down that requires a review of those assessments on a regular basis. Currently that’s not the case. The only way to make that happen is to change the law.”
The Australian Lawyers Alliance says lawyers representing refugee clients are often left in the dark regarding the security claims alleged against their clients.
President of the Alliance, Anthony Kerin, agrees a new system is needed to review ASIO assessments.
“The system is flawed and needs to be reviewed. You need to be able to challenge adverse findings against you if there is a basis for doing so. And at the moment that right doesn’t exist under Australian law in terms of ASIO assessments.”
In a case before the High Court last year, a Sri Lankan man challenged the legitimacy of his indefinite detention on the basis of an adverse security assessment.
The Court ruled that the method ASIO used to reject his visa application was invalid, but this did not lead to any legislative changes.
Sophie Peer, from ChilOut, says ASIO processes must be made more transparent.
“What there should be is a basic process of natural justice. If someone is going to be detained give them a chance to defend themselves. Let them know why they are being detained, what the charges are against them. I mean that’s just a basic rule of law.”