Asylum seekers who face imminent removal from Australia have lodged a legal challenge to their deportation, saying a security breach by the Department of Immigration means they cannot be returned safely.
At least 16 applications have been made to the Federal Circuit Court by asylum seekers who are fighting removal from Australia, on the grounds that their personal information was published on a government website, a lawyer acting for them says. They are seeking a re-evaluation of their claims for protection.
Last month a massive security breach saw the online publication of the personal information of up to 10,000 people held in Australian immigration detention. The data lapse was first reported by the Guardian on February 19. This highly sensitive information was available to download for more than a week before the Department of Immigration and Border Protection removed it.
The list reportedly included everybody who was being held in an immigration detention centre within Australia in January 2014, as well as some people in community detention arrangements. It is believed some of these people are scheduled for removal from Australia.
The accidental breach is currently being investigated by KPMG and the Australian Privacy Commissioner Timothy Pilgrim. The implications of this release of information are still unknown, yet there has been no public announcement about whether a hold will be placed on the deportations of people who have been unsuccessful in their claim for asylum.
“People who have exhausted all outstanding avenues to remain in Australia and have no lawful basis to remain are expected to depart,” a spokesperson for Immigration Minister Scott Morrison told SBS in response to questions about deportations in relation to the data breach.
Dr John Sweeney, Co-ordinator of Research with the Edmund Rice Centre, is working with other advocacy groups and lawyers to provide information to asylum seekers about what legal recourse is now available to them in light of the security breach.
They are encouraging asylum seekers who face deportation to make applications to the Federal Court on the grounds of breach of privacy.
“The breach has effectively made these people a refugee and the expression is sur place,” says Dr Sweeney.
People who are not refugees when they leave their country of origin, but become refugees due to subsequent events are known as refugees “sur place”.
Dr Sweeney says two people being held at the Villawood Centre were told on February 26 to collect their things as they would be taken to the airport for removal.
“Those two people said: 'You've breached my privacy. I can't go back because you've breached my privacy, you've published my details,'” Dr Sweeney told SBS.
“There was some delay and the Department decided not to take them to the airport.”
“I know their names. I have no doubt that this event took place,” Dr Sweeney said.
The reason for the apparent reversal of the deportation could not be confirmed. SBS sought to verify this incident with the Immigration Department.
“For operational reasons, the government does not discuss the timing of any possible removals,” says a spokesperson for the Minister of Immigration.
Michaela Byers is the solicitor handling 16 of the cases made to the Federal Court from people being held in Villawood Detention Centre. She is a migration agent and lecturer in Immigration and Refugee Law at the University of Western Sydney. She is seeking refugee status and permanent residency for the 16 people facing deportation.
“There are a number who haven’t even started any process, and those who have completed the process. But all of them are on the removal pathway,” says Michaela Byers.
“Some of them have identity issues, so the Department’s having problems getting travel documents to remove them. But most have been sitting in detention for a number of years. One has had a postponed removal,” she says. “So most of them are finalised, they’ve gone through the refugee determination process and they’ve been through court. Although there is a group of them within there who were barred from making any sort of application.”
Michaela Byers is not aware of anyone being told by the Department that their privacy was breached. “There’s been no notification as required under the Privacy Act,” she says.
“I anticipate large numbers of people filing in court. Especially as the Department doesn’t give them any sort of notification or response as to how they’re going to proceed now that they’ve disclosed – by accident, but it makes no difference – their information to whoever was trawling through the internet for their personal information. Which is most police agencies in the world.”
“I’m also getting phone calls from Christmas Island. People there want to file in court as well,” Ms Byers says.
Injunctions will be sought in court to prevent the removal of asylum seekers affected by the data breach. Many fear for their personal safety if returned.
“Most of these countries take a very severe view on their nationals going overseas and making claims against their country. Some people have outstanding warrants and in the case of people that have left Sri Lanka illegally, they face imprisonment upon return, anywhere between two days and 15 years depending if they crewed the boats they were on that came to Australia,” says Ms Byers.
On February 6 the Department of Immigration sent 45 asylum seekers back to Sri Lanka. This was before the data breach was realised. Michaela Byers says deporting people who have had their information released is a breach of international law.
“As to getting them back from Sri Lanka, that would be impossible. They would be able to identify them and I would say most of them would still be sitting in Negombo Remand Unit. So once they’re gone, they’re gone,” she says.
MANY MORE ‘SUR PLACE’ CASES EXPECTED
There are many asylum seekers who have been unsuccessful in their claims for protection who have been affected by the data breach, according to Ian Rintoul from the Refugee Action Coalition.
“There are Tamil families in Darwin, there are Tamil single men in Curtin and Bangladeshis in Yongah Hill. They have been told they will be removed. So we’ve got potential removals from Australia over the next few days,” he says.
Greens Immigration Spokesperson Sarah Hanson-Young has called on the Government to ensure the safety of all those affected by the data breach, including people who have been unsuccessful in their claims for protection.
“I think it’s really concerning that the Government is even trying to deport, for example, Hazaras back to Afghanistan. They should not be being sent back there. There’s no way we can guarantee their safety back in Afghanistan. And if this data breach is anything to go by, we’ve got even less assurance than we ever had before that they wouldn’t be targeted by the Taliban,” she told SBS last week.
“Similarly, for Sri Lankans who have been held in Immigration Detention and the Department may want to send them back to Sri Lanka the data breach means those people cannot have their safety guaranteed,” says Sarah Hanson-Young.
“Anybody who is currently listed for deportation should not be removed from the country,” she says.