Two refugees are taking the Australian government to court, arguing that their detention offshore was fundamentally illegal because they were children at the time.
Cousins Mehdi and Adnan, who by chance travelled on the same boat from Jakarta to Australia, were just 16 when they were sent to Nauru – a Pacific island nation more than 3,000 kilometres (1,864 miles) northeast of Brisbane that had made a deal with Australia to host asylum seekers and refugees who had tried to get to Australia by sea. They prefer not to disclose their country of origin for security reasons.
The cases are just two of a series of upcoming hearings regarding refugees sent into Australia’s offshore detention system as unaccompanied minors.
The refugees’ lawyers allege that when the now young men were sent to Nauru, current Prime Minister Scott Morrison, who was the minister for Immigration and Border Protection at the time, failed to complete an essential piece of paperwork that would have made their detention legal.
The nature of the detention itself was also a serious breach of international and domestic law, they say.
Their lawyers argue the young men should never have been detained and could have been spared the physical and mental anguish they have had to endure.
When Mehdi and Adnan were sent to Nauru, an island smaller than Sydney’s city centre, there was already clear evidence that it was not a safe place for any refugee, let alone unaccompanied children.
In early March 2014, an investigation by Australian broadcaster SBS into the offshore system, revealed the poor conditions in the then-off-limits detention camps and the declining mental health of those held there. At the time, there were 27 unaccompanied children detained on Nauru.
Mehdi and Adnan arrived on the island a month later, in April 2014.
“I don’t wish for any human being to be in such a situation, ever,” Mehdi told Al Jazeera. “It was really terrifying.”
The full extent of the situation in Nauru was not exposed until years later when 2,000 files were leaked to the British newspaper, the Guardian, detailing the “assaults, sexual abuse, self-harm attempts” that had occurred in the camp, as well as its poor living conditions.
When the boys were given refugee status in late 2014, they were allowed out of the camp, joining other unaccompanied children and teenagers in group housing.
Reports coming out of Nauru at this stage disclosed a range of new issues, from a dysfunctional and often dangerous healthcare system to inadequate education options and a lack of transparency about when the refugees’ “processing” would end, which would have enabled them to be resettled in permanent housing.
The Department of Home Affairs defended the system in response to questions from Al Jazeera.
“All illegal maritime arrivals transferred to Nauru have access to primary, mental health, and specialist health care and welfare services,” a spokesperson said, adding that all school-aged children had access to education, including tertiary classes, through the Nauruan schools.
It added that there are currently no “transitory persons” who are children or unaccompanied minors in Nauru, saying that the centre for children had not been operational since early 2019.
‘Detention, frustration, misery’
According to numerous investigations from human rights groups, news reports and personal testimony, refugees also experienced serious violence from local people in Nauru.
This violence could include anything from rape and physical assault to being run down by trucks, says Daniel Taylor, a solicitor with Sydney West Legal and Migration who represents the boys, even attempted murder.
Taylor sees this violence as an “ethnic conflict”, the result of the Australian government’s decision to put more than 1,600 refugees and asylum seekers into fenced compounds on an island with a population of just under 11,000. The Nauruans simply did not want the refugees there, he told Al Jazeera.
Mehdi remembers being beaten up by the side of the main road for not having a lighter. He was 17 at the time.
“I was [walking] a little bit far away from my facility … speaking over the phone, [smoking],” he said. “A motorbike [carrying] two locals stopped.”
When they found that he did not have a lighter they swore at him and hit him in the head.
Mehdi did not bother going to the police.
“In [Nauru] … we’ve seen that there is no law … we have no rights [at all],” said Adnan. “You can’t leave. You can’t travel. You’re like a hostage without any rights.”
This was mostly what their childhood was like, he says, and all they got was “detention, frustration and misery.”
The spokesperson from the Department of Home Affairs insisted “dedicated services” were available to support the health and welfare of Mehdi, Adnan and other unaccompanied minors in Nauru. “Australia takes its commitment to international human rights obligations seriously,” the spokesperson said. The Nauru government did not respond to Al Jazeera’s repeated requests for comment.
In 2019, at the age of 21, Mehdi and Adnan were finally taken out of Nauru and brought to Australia under the short-lived Medevac bill, where they were detained at the Brisbane Immigration Transit Accommodation and Fraser Compound (BITA).
When COVID-19 hit, they were moved to the Kangaroo Point Central Hotel & Apartments in the same city, where detainees have appealed for their release, supported by protesters outside.
Now back in BITA, Mehdi and Adnan say that their situation is not much better than it was in Nauru.
Despite being recognised as refugees, they are still classified as “illegal maritime arrivals” and denied their freedom. They have now spent eight years in immigration detention
“Here we are in a smaller cage. There we were in a bigger cage,” said Mehdi.
None of it was lawful, lawyers say
The cases will be heard in the Federal Circuit Court in Sydney on Friday morning with the two men’s lawyers arguing Adnan and Mehdi are not “Transitory Persons” – a class of entrant to Australia that includes people deported to Nauru and other offshore detention centres – and therefore should never have been detained.
“The law says they’re transitory persons, that’s why we need to detain them,” said co-counsel Noeline Balasanthiran Harendran, a solicitor at Sydney West Legal and Migration who is working on the case with Taylor. “We’re saying they’re not transitory persons because they should have never actually gone to Nauru in the first place.”
Their case is hinged on a number of issues, including whether Morrison signed the necessary paperwork and the fact that under Australian law the immigration minister automatically becomes the guardian of every non‑citizen child who arrives in Australia without a parent or their own guardian.
The law says that in such circumstances the minister has “the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have.”
Australian law also states that “a minor shall only be detained as a measure of last resort”.
On top of that, the lawyers argue, the detention of unaccompanied minors on Nauru breached domestic and international law – including the UN Convention on the Rights of the Child – because it was not in the “best interests of the child”.
Adnan was also assessed, wrongfully, as an adult and spent his first year or so in detention with adult men.
“[In] a razor-wire encased compound under armed guard in an adult-male detention facility,” said Taylor. “It’s not [in the best interests] of a child to do that.”
The United Nations refugee agency (UNHCR) says it opposes the detention of those in need of international protection as a matter of principle.
Australia is one of the only countries in the world to mandate the detention of children.
“In Australia, if you don’t have a visa you must be detained,” Jade Herron, a senior external relations assistant at the UN High Commissioner for Refugees Multi-Country Office in Canberra told Al Jazeera. “There is no exception for children, and the movement of children to alternatives to detention currently depends on ministerial discretion. This law needs to be changed.”
The Australian government shows little sign of backing down, however.
A spokesperson from the Department of Home Affairs told Al Jazeera that regional processing remained a “key pillar” of its immigration policy applied to “all illegal maritime arrivals, including women and children, and unaccompanied minors”.
As their eighth year in detention continues, Mehdi and Adnan are growing desperate. Adnan has just had his application to be resettled in the United States rejected.
The court case in Australia offers some hope, and the men’s lawyers hope mediation can expedite their release.
“We are just ordinary people and we just want to live in peace,” said Adnan.
“We don’t know what to do,” said Mehdi, “so if the world can hear us, please share our story and raise our voice”.