Saturday, November 19, 2011


Well done Ian Rintoul and Shane Prince!!

Kirsty Needham, SMH


THE federal government's plan to deport an Afghan asylum seeker by force for the first time has been stopped by the courts.

Afghan Hazara man Ismail Mirza Jan, 27, wept in the Sydney Federal Magistrates Court yesterday as a temporary injunction blocked his forced removal from Australia to Kabul.

The injunction, in place until a full court hearing, is the latest in a series of judicial curbs on the Gillard government's refugee policies. The High Court injuncted the removal of asylum seekers from Christmas Island to Malaysia on the eve of the first transfer, and later permanently blocked the Malaysia refugee swap.

Advertisement: Story continues below About two-thirds of rejected refugee claims from boat arrivals are being overturned in the Federal Magistrates Court because of a lack of procedural fairness.

''Federal Magistrate [Shenagh] Barnes granted our client an injunction, stopping our client departing tomorrow on the basis our client has an arguable case that he was denied natural justice in relation to a decision that it was reasonably practicable to remove him to Afghanistan,'' his lawyer George Newhouse said.

''It is a sound decision based on a universal principle of law which protects all Australians and those who come within our borders. Our client … is still living with the uncertainty that he may be removed in the future.''

A directions hearing for Mr Jan's case is set down for next month. A refugee activist, Ian Rintoul, said it was likely the case would not be heard until next year. It is believed that travel documents issued by the Afghan government will expire at the end of January.

Mr Jan fled Afghanistan a decade ago as a teenager and his family now live in Pakistan. He fears for his safety if returned to Afghanistan.

He arrived in Australia by plane in 2010, having spent years moving between European countries. His claim for refugee status was rejected by the Refugee Review Tribunal.

A spokesman for the Immigration Minister, Chris Bowen, said: ''It's a fundamental part of our immigration system that if people are found not to be genuine refugees that they should be removed.

''People are only removed where their refugee claim has failed at multiple levels of assessment. This government is committed to a proper and robust assessment of asylum claims as a signatory to the Refugee Convention.''

The Afghanistan expert William Maley and Amnesty International have cautioned against deporting anyone to Afghanistan as the security situation in Kabul deteriorated.

A second legal front was opened in the Federal Court yesterday. The barrister Shane Prince commenced legal action seeking time to appeal an earlier court decision which had upheld the rejection of Mr Jan's refugee claim.

Although the Afghan government has issued travel documents, it has publicly indicated it is unhappy at the forced return of its nationals under a controversial agreement struck with the federal government.

As war against the Taliban continues, Afghans continue to be the largest group of asylum seekers worldwide, with the number of Afghans applying for refugee status leaping 20 per cent in the first half of this year, according to the United Nations High Commissioner for Refugees. Asylum claims reached their highest level since 2002 in the most recent quarter measured by the UNHCR.

The Immigration Department had planned to take Mr Jan from the Villawood detention centre today and escort him by plane to Kabul, charging him $32,000 for his removal.

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