An Egyptian man challenging the lawfulness of Australia’s indefinite detention system in the high court has been warned that Border Force is preparing to remove him from the country “unwillingly” within a month if he doesn’t agree to leave on a commercial flight.
Tony Sami, who has been detained for a decade after his visa was cancelled in 2012 and who is fighting to stay in Australia to be with his two children, had been preparing for a landmark case that could determine the freedom of hundreds of asylum seekers and detainees.
Sami’s lawyers are seeking to overturn a controversial 2004 high court decision that indefinite detention is authorised by the Migration Act. In an interview with Guardian Australia this month, Sami alleged he was subject to excessive use of force in detention, and is calling on the immigration minister to intervene and release him and allow him to stay in the country.
But just weeks after Sami’s lawyers applied to move his case to the high court, they received a letter from the Australian government solicitor, informing them Sami could be involuntarily removed from Australia, meaning he may never get his day in court. Sami has been told this could occur as soon as 8 March.
According to the 3 February letter, on 1 February the Egyptian consulate asked for a “travel itinerary for your client in order to issue a travel document”, asking if he would “agree to be removed voluntarily” on a commercial flight.
“If your client chooses to remain unwilling to be removed, arrangements for a charter flight will be required,” the letter said, noting that “planning has commenced in the event such a flight is required”.
The letter said there were often difficulties getting commercial airlines to take passengers who were travelling involuntarily.
A ‘leisurely approach’ to removal
Sami has been detained since February 2013 and has not been able to be deported because Egyptian authorities would not issue him a travel document.
He arrived in Australia as a tourist in 2000 and obtained a partner visa in 2003. Sami and his first wife had two children who are both Australian citizens, including one severely autistic son.
His partner visa was cancelled in 2012 after he was convicted for “a number of offences involving fraud or dishonesty”. After serving an 18-month sentence in prison, Sami was released in February 2013 and put into immigration detention pending his removal from Australia.
Sami said the home affairs department kept him “in the dark” for three years, failing to inform him in 2018 that Egypt was unwilling to provide a travel document until he nominated his relatives in Egypt. Sami says he has no relatives there.
“It’s in the best interests of two Australian citizens [my children] for me to be released … Why should they be punished for a crime they didn’t commit?”
According to a Department of Home Affairs document dated July 2022, seen by Guardian Australia, Sami could not be removed to Egypt because he “will not comply” with requests from the embassy to provide fingerprints on a form for a travel document.
In December the federal court justice Debra Mortimer found departmental officers appeared to have taken a “leisurely approach” to removing Sami, with little evidence of engaging with Egypt beyond “a series of emails and somewhat random inquiries”.
Sami said that, in an attempt to get his Egyptian documents approved, ABF staff had incorrectly claimed to Egyptian authorities he had “no connection” to his children because he had instructed them not to visit to avoid the distress of seeing him in detention. ABF has since apologised for breaching his privacy.
‘Sometimes I get angry’
In an interview with Guardian Australia, Sami detailed his detention experience, saying it amounted to “torture”.
He said he had lived with dental pain for one and a half years before he was referred to a dentist, claiming that his pain had been used “as a weapon”.
Sami also said some Serco officers “are willing to use force in the first instance”, alleging that in the last week of January officers had “jumped” on him for having kicked a chair and “put me in a concrete room for 24 hours”.
A Department of Home Affairs document dated July 2022, seen by Guardian Australia, noted Sami has been involved in 482 incidents since being detained in 2013.
Those incidents include: 98 of threatened self-harm; 67 of actual self-harm; 34 of food or fluid refusal; and 52 of unplanned use of force to prevent self-harm or injury to others.
The department also recorded 108 incidents of “abusive and aggressive behaviour towards staff and fellow detainees”. Sami responded that he was an “exemplary detainee” and that these included minor incidents such as swearing or shouting.
“We are not a robot, we have emotion,” Sami said. “I’m a human being who has been in detention for 10 years without my children – sometimes I got angry.”
Documents provided to the Guardian appear to support the toll the detention was having on his mental health.
In 2017, the home affairs department found Sami was not eligible to be referred for ministerial intervention despite International Health and Medical Services finding community detention would “allow him to have more contact with his family” as Sami continued to display signs of “detention fatigue”, according to an Australian Human Rights Commission report.
The AHRC concluded that Sami’s “continuing detention in closed facilities may be considered arbitrary” for the purposes of the international covenant on civil and political rights.
In July 2020 the commonwealth ombudsman recommended that the department consider allowing Sami to move to community detention “on the basis of his ongoing health conditions”.
According to the AHRC report on 21 September 2020, Sami was assessed to be a high risk of harm to the community. Sami attributed this to minor incidents in detention and self-harm, rejecting suggestions that he is a threat.
In response to the dental pain allegation, International Health and Medical Services responded that it had forwarded the question to Department of Home Affairs.
Serco – which runs the detention centres – denied use of improper or excessive force. “Our priority is always to treat people in our care with dignity and respect in a safe and secure environment,” it said.
In relation to the January incident, Serco said “no formal complaints were made to Serco in relation to the alleged incident … and there is no evidence to suggest there was any excessive use of force by staff”.
“All Serco employees working in immigration detention are bound by local law, the APS code of conduct and Serco’s own code of conduct.”
The home affairs department said it “does not comment on individual cases due to privacy, nor does it comment on matters currently before the courts”.
“Where an unlawful non-citizen has exhausted all administrative, procedural and legal avenues for appeal, they have no legal basis for remaining in Australia and are therefore expected to depart,” it said.
“Non-citizens in Australia who do not hold a valid visa will be liable for detention and removal as soon as practicable, pending resolution of any ongoing matters.”
Guardian Australia contacted the immigration minister, Andrew Giles, for comment.
In Australia, the crisis support service Lifeline is 13 11 14. In the US, the National Suicide Prevention Lifeline is 1-800-273-8255. In the UK, Samaritans can be contacted on 116 123. Other international suicide helplines can be found at befrienders.org
