The federal government is facing landmark class actions by 122 people who claim they were detained or prosecuted as adults for suspected people smuggling despite evidence they were children at the time.

The cases for alleged unlawful imprisonment and racial discrimination are spearheaded by Ali Yasmin, a young Indonesian crew member on a boat carrying asylum seekers who had his conviction overturned after serving time in a Western Australian adult prison.

The Australian government has rejected most of the allegations as “scandalous and embarrassing”, arguing that aspects of the cases, such as alleged negligence, are aimed at circumventing time limitations on claims.

Yasmin was taken to Christmas Island in December 2009 despite telling immigration authorities he was 14. He was among dozens of children prosecuted by Australian authorities between 2010 and 2012 after they were deemed adults using the now-discredited method of wrist X-rays.

He spent more than two years in a maximum-security prison but was released in 2012 and deported back to Indonesia due to doubts about his age. His conviction was overturned in 2017.

In 2012, the Australian Human Rights Commission concluded that Australia had committed “numerous breaches” of international human rights law between 2008 and 2011 by giving “little weight to the rights of this cohort of young Indonesians” as prosecutors and police faced pressure to “take people smuggling seriously”.

In two related cases now before the federal court in Victoria, Yasmin claims that he and 121 others were brought to Australia against their wishes after being apprehended on boats suspected of illegal entry into Australian waters.

Yasmin argues in court documents that Australia breached international laws that state people who might be children should be treated as such until identified positively as adults.

Yasmin claims that 97 days of his detention were unlawful because authorities applied an “undifferentiated” approach to adults and children and breached the Migration Act’s requirement that detention be used as a last resort for minors.

He also claims to have been assaulted in Hakea prison in 2010 while held on remand, a reference to an alleged sexual assault by another inmate.

In the second case, Yasmin alleges breaches of the Racial Discrimination Act and duties of care to the people detained, relying on the AHRC’s findings in its 2012 Age of Uncertainty report.

The Australian government solicitor wrote to Yasmin’s lawyers in September warning it may seek to have the entire second case thrown out based on deficient pleadings.

Given the “highly individual nature of the applicant’s pleaded claims, there must be substantial doubt” a class action on behalf of all 122 members could succeed, the AGS said.

The AGS argued Yasmin’s negligence claim was “vague” because it failed to specify what alternative method to determine the plaintiffs’ age it could reasonably have used.

It claimed alleged “pressure” to prosecute Indonesian boat crew members was “a pleading device that has been manufactured to serve as a hook on which to hang the claims of discrimination”.

The cases are scheduled to return to the federal court on 21 February for a case management hearing.

Yasmin and the plaintiffs are represented by Ken Cush & Associates and have disclosed to the court the case is supported by a litigation funding agreement – but the identity of the funder is confidential.

A spokesperson for the Department of Home Affairs said it was “aware of these matters” but since they were “currently before the court it would not be appropriate to comment further”.



READ NEWS SOURCE

LEAVE A REPLY

Please enter your comment!
Please enter your name here