Immigration

Landmark legal case challenges the 'inhumane' use of handcuffs on asylum seekers

This image is for representation only. Source: Getty Images

The case will examine the use of handcuffs to transfer asylum seekers to medical appointments, with lawyers calling the practice inhumane, re-traumatising and re-triggering.

The use of handcuffs to restrain asylum seekers who are seeking access to medical appointments will be challenged before the federal court in a landmark legal case.

The case has been lodged by the Public Interest Advocacy Centre on behalf of asylum seeker Yasir*, who fled to Australia in 2013 to avoid persecution.

"I had no status as an ethnic minority and was constantly targeted by police and authorities," Yasir said.

"More than two decades earlier, I was deported from my country of birth with my family – we were imprisoned as ‘enemies of the state’ for two years when I was a small child and I was tortured by prison guards who kept me in handcuffs.

"I saw them do the same to my family and others."

During his seven years in Australian immigration detention, Yasir has been diagnosed with a number of mental health illnesses, including post traumatic stress disorder. 

"The things that happened in jail changed me forever," he said.

"I can’t even look at handcuffs without feeling like I’m going to have a seizure.

"I am not refusing treatment, I want treatment for my mental and physical health issues, but I cannot receive treatment in these circumstances."

The case will argue that the use of handcuffs to restrain men and women who are attending offsite medical appointments is inhumane and an illegal obstruction to those seeking access to healthcare.

It challenges the lawfulness of the procedure under both the Migration Act and Disability Discrimination Act.

Public Interest Advocacy Centre lawyer Jane Leibowitz said such actions were often disproportionate to any genuine risk.

"In this case, our client has a severe torture and trauma background which relates specifically to the use of handcuffs, so the use of handcuffs within detention is re-traumatising and re-triggering for him," Ms Leibowitz told SBS News.

"He's been in detention for seven and a half years and there have been numerous recommendations from doctors and other medical professionals that strongly advise that handcuffs should not be used due to his background, yet it continues.

"It's creating an incredibly damaging and harmful impact on our client, in addition to what he has already suffered."

Ms Leibowitz said the case was a crucial chance for the courts to examine the legality of the practice, and could have far-reaching implications throughout the immigration detention system. 

In 2017, data obtained by PIAC demonstrated that the use of force and restraints in Australia's onshore immigration system had more than doubled in nine months.

This was supported in a 2020 Commonwealth Ombudsman report, which showed a growing use of force as a first, rather than a last resort.

"In all settings handcuffs should always be the last resort, not the first choice," Ms Leibowitz said.

"With that principle in mind, there are many humane and safe ways to [organise a transfer].

"One very obvious example is that they are taken to an appointment unrestrained with a security officer; it's still a secure and safe transfer."

According to Ms Leibowitz, Yasir had been transferred to medical appointments in this way "many times" before. 

"He is fully cooperative and he's returned to the facility as he left," she said.

"It's an issue that potentially affects many people in immigration who are being subjected to this practice."

This observation is supported by a spokesperson for Refugee Solidarity Warrang (Sydney), who says the arbitrary use of handcuffs was recently observed in the transfer of asylum seeker, Farhad Rahmati.

Mr Rahmati was restrained during his transfer from Brisbane Immigration Transit Accommodation to Villawood Detention Centre, a move which he said made him feel "like a criminal". 

Farhad Rahmati (wearing blue) in the Kangaroo Point APOD before his transfer to BITA.
Farhad Rahmati (wearing blue) in the Kangaroo Point APOD before his transfer to BITA.
Stefan Armbruster/SBS News

The action group will protest his transfer outside Villawood Detention Centre on Thursday.

A spokesperson for the Australian Border Force told SBS News they "may approve the use of restraints to transfer detainees, where risk assessments indicate the need is appropriate and proportionate to the identified risk."

"An assessment of whether to approve the use of restraints is undertaken on a case-by-case basis, following a risk assessment in consultation with health professionals who consider known medical or mental health issues, including torture and/or trauma.

"All detainees in immigration detention have access to health care comparable to that available to the Australian community, including access to psychiatry, psychology and counselling services."

 

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