Mustapha El Ossman has never been accused
of criminal wrongdoing, passed three security checks, and was on verge of
gaining a visa before new Asio ruling El Ossman has never been
accused of any criminal wrongdoing and has always complied with his visa conditions.
He has had three positive security assessments from the Australian Security
Intelligence Organisation (ASIO) since he first visited Australia. But
suddenly, and with no clear explanation, that position changed. After an
adverse security assessment from Asio in August 2015, Dutton used his
discretion to cancel El Ossman’s visa on Asio’s recommendation, which led to
his placement in the Villawood detention centre in Sydney. The immigration
department and Serco, the private contractor that manages Villawood, decided to
place El Ossman in the highest security area of the Villawood compound, known
as Blaxland." src="data:image/png;base64,R0lGODlhAQABAJAAAAAAAAAAACH5BAEUAAAALAAAAAABAAEAAAICRAEAOw==" ns1:v:shapes="Picture_x0020_2" width="1" height="1">
He potentially faces indefinite detention in Villawood and is unable to seek a review of the Asio decision on its merits because he is not an Australian citizen. This gap in Australian law has consistently been criticised and has drawn the attention of the UNHRC on several occasions.
Mariam Albaf and her family have spoken out about the security assessment in a video interview with Guardian Australia. She has issued a direct plea to Dutton to reconsider the visa cancellation and the family has started a petition to call for his release from detention.
Albaf told Guardian Australia her daughter has difficulty recognising her father when they visit the detention centre.
“It’s a travesty; you’re in a system where you’ve got laws that protect humans and their rights,” she said. “But he doesn’t have rights as a human. So we don’t get to find out why he’s in there. We don’t get reasons.
“Right after he was taken away if I left the room [my daughter] would scream hysterically. She would literally hold onto my leg.
“She started waking up in the middle of the night. She’d wake up screaming hysterically.”
El Ossman has appealed against the visa cancellation decision to the Administrative Appeals Tribunal on two occasions but the appeals were rejected in September 2015 and December 2015.
Although the tribunal member Antoinette Younes in September 2015 ruled against El Ossman, she noted: “The applicant is in detention and it is possible that he could remain in indefinite detention as a consequence of the cancellation.”
Younes acknowledged that family unity was important and that the interests of their daughter was a primary consideration “but the tribunal is satisfied that they are not the overriding interests in this matter”.
In the subsequent appeal, the senior tribunal member Irene O’Connell ruled against El Ossman but cast some doubt over Asio’s assessment, given its secret nature.
This time O’Connell was critical of some aspects of the decision.
“The applicant was not, for example, picked up in a raid, questioned by police, or charged with any terrorist activities,” she wrote.
“Given the nature of the Asio assessment, that the applicant is directly or indirectly a risk to security, it is to be given considerable and substantial weight.
“However, the manner in which the assessment has been implemented would tend to suggest that the attribution of substantial weight to the Asio assessment is to be treated with some circumspection.”
The basis for the decision is almost entirely unknown. In July 2014 El Ossman was questioned by Asio about his political views on the Syrian conflict and his religious views. No clear allegation has been put to him about any extremist activities or links, although Asio has suggested that this is the basis for the decision.
“I said that I love and respect this country and I want to live here for the rest of my life and I love this country to stay safe and sound,” El Ossman said in a written recollection of his interview.
“I promise Asio that if had any information about anyone who is trying to mess with the national security of this country that I will not hesitate to contact them, even if that person was a family member, as the damage that this person can cause in this beautiful country will hurt everyone.”
After the five-hour interview El Ossman thought this was the last he would hear from Asio. He even laughed and joked with the officers during the interview. They made him feel at ease. He told Mariam when he left that he thought it was fine, they didn’t seem bothered.
While both were anxious about the interview, nothing happened for almost a year. The family had been living in Sydney.
More than a year later, in September 2015, El Ossman was called in to the immigration department for what his family thought was a routine meeting. The family thought he was going to be granted his partner visa.
He was walked into another room, where two Australian Border Force officers were sitting. They told Mustapha his visa had been cancelled because of a security assessment from Asio. Neither officer would tell him any more than that. They asked him to explain why his visa shouldn’t be cancelled but did not accept his response. He was taken into detention immediately.
“I said why? What have we done wrong?” his wife says.
“I said but he’s my husband, he’s the father of this child. Why? You can’t just take a man away from his family without saying why.”
The truth was that neither officer knew. They, like the immigration minister, and the tribunal, have no idea about Asio’s reasons for the security assessment. But his visa was still cancelled.
You can’t just take a man away from his family without saying why.
Mariam Albaf, wife of Mustapha El Ossman
The toll it has taken on the family is enormous and was recognised in both tribunal cases.
Albaf said: “I have nightmares. I’m a grown woman and I have nightmares. I’m moving because I don’t feel safe in my house.”
“I’m moving because I have nightmares that Asio comes into my house in the middle of the night and takes my daughter away.
“I have nightmares that Asio comes in and plants things in my house. Because there’s nothing in my house, because they want proof that my husband was a bad person.”
El Ossman has launched a federal court challenge to the assessment. Because Australian law does not permit him to appeal Asio’s decision on its merits, he is limited to questions of law, which can be more limited grounds of appeal.
Stephen Blanks, who is representing El Ossman, said the situation for non-citizens faced with adverse security assessments was a “very unfair situation”.
“It makes it very difficult to challenge and it’s terribly unfair, when somebody is deprived of their liberty but have no knowledge of who is making accusations against them or what they are,” he said."
The immigration minister has to revisit his policy that non-citizens who receive these assessments should have their visas cancelled.
“By all means monitor them, even impose some small conditions on them, but don’t take them from their family and all the support networks that make them productive members of our society.”
After a lengthy delay, El Ossman was given a carefully redacted version of Asio’s reasons. It raises far more questions than it answers. The heavily redacted assessment claims he “harbours extremist ideology” and maintains some form of unsatisfactory association with individuals “involved in activities prejudicial to security” but does not disclose any clear basis for the decision.
Asio says he was not truthful in his interview with some responses about Syria and his views on the conflict, and maintains associations with “extremist individuals”, but does not outline what it believes is the basis for this view.
The decision is particularly controversial because Asio had already given El Ossman three positive security assessments. It was only the fourth assessment that was found to be negative.
Asio’s security assessment procedures have come under scrutiny before. The auditor general previously released an audit that noted some operational failings “limit assurance that the agency is making sound assessments that result in non-prejudicial advice”.
When asked why they only recommended El Ossman have his visa cancelled now, after being in Australia for several years, Asio said: “Asio does not provide a recommendation on the detention or otherwise of the individual. Asio issues assessments based on its knowledge and information available at the time and in the context of the security environment at the time.”
Convicted offenders are placed in Blaxland to await deportation and El Ossman’s mental health has deteriorated since his placement there. The population of Villawood has radically changed over the last 18 months and is now increasingly criminals awaiting deportation rather than asylum seekers.
It also means that his family must undergo strict security screening in order to visit him and have to take their infant daughter into the detention centre on a regular basis.
“It’s not a place that you want to bring your child to. There’s people in there who have committed crimes,” Mariam Albaf said.
“They provide toys that are broken and that have been vandalised. They’re weapons, they’re not toys.”
When questioned about the basis for the placement decision, a spokesman for the immigration department would not comment on El Ossman’s individual placement. But he added: “Decisions on where to place individuals in the detention network are based on a number of factors, including criminal histories, operational requirements, security and welfare issues.”
“In circumstances where an unlawful non-citizen has been determined as presenting a risk to the community, they may be detained in a facility commensurate to the level of risk they pose.”
Serco did not respond to questions and referred questions to the immigration department.
Dutton has been talking up the government’s human rights record before the looming federal election after he announced it had released children from mainland immigration detention centres.
When asked about El Ossman’s case, a spokeswoman for Dutton asserted that the minister had nothing to do with the decision, because the decision was made by a delegate of the minister.
“The minister’s a very busy man, he doesn’t have time to look at every single individual’s cancellation,” she said. “You’re making it sound like he personally reached in and ruined this guy’s life.”
She added: “If you want to go in to bat for these people then that’s fine.”