Egyptian refugee Sayed Abdellatif faces an indefinite immigration detention after the government won an appeal in the federal court, with Asio telling the court it held “classified information” it could not share with Abdellatif, but which demonstrated he held extremist views.
Abdellatif has been exiled from his homeland for more than two decades after being convicted in absentia in a discredited mass trial in Cairo in 1999 for offences he says he never committed. The evidence used against him was obtained under torture, and he says he has also been the victim of torture.
Abdellatif arrived in Australia by boat in 2012, seeking asylum with his wife and children. His family has lived in the Australian community for years, while he has remained detained.
Abdellatif’s claim for protection has been recognised by Australia. He has a well-founded fear of being persecuted and cannot be forced to return to Egypt. But he has been denied a visa on the basis of security assessments conducted by Asio.
The Australian government’s initial security concerns about Abdellatif were raised because of an Interpol red notice, akin to an international arrest warrant. The notice was quashed when evidence was presented to Interpol that the convictions listed against him were either never made in court, or obtained using evidence obtained under torture.
Last year, Abdellatif won a federal court appeal to set aside two adverse security assessments from Asio, arguing those assessments also relied on evidence obtained using torture in his discredited trial in Egypt.
Justice Debra Mortimer found there had been use by Asio “in a material and significant way, of evidence that had been wholly discredited, including because of the likelihood it was obtained through torture and/or ‘prepared’ by Egyptian authorities”.
Mortimer ordered that a 2018 security assessment made by Asio – which formed the basis of him being denied a protection visa – and a subsequent 2020 security assessment be set aside.
The government appealed that decision and on Thursday, the full bench of the federal court – justices Michael Wigney, Robert Bromwich and David O’Callaghan – upheld the government’s appeal.
Asio told the full bench of the court it did not rely on the discredited Egyptian trial – known as the Returnees from Albania trial – nor evidence obtained under torture.
It said it held “classified information” that it could not share with Abdellatif on which it based an assessment that “it is likely [Abdellatif] held an ideology supportive of politically motivated violence”.
Asio said it believed Abdellatif had engaged with members of the proscribed Egyptian Islamic Jihad (EIJ), had travelled to Yemen in the mid-90s with members of EIJ, and that he had lied to Asio in his interviews about his beliefs and activities.
“[Abdellatif] presents an avoidable risk to Australia’s security which would be mitigated by refusal of his application for a temporary protection visa,” Asio said in its assessment.
In his security interviews with Asio, Abdellatif denied all of the allegations put to him.
“[He] described himself as a ‘moderate Muslim’ who did not agree with the use of violence to further a belief,” according to an interview summary in the court judgment. “[He] also said he did not support any extremist group.”
Abdellatif denies having travelled to Yemen.
The court judgment said: “Abdellatif was invited to comment on how Asio could believe that he wished to live peacefully in Australia when he continued to withhold information, to which his response was that he needed to be provided with the evidence that Asio had before he could respond and that seeking a response was imposing pressure upon him to admit or confess to something he did not do, likening this to torture, and repeating his denials of association or activities of the kind that had been put to him.”
Abdellatif remains in Villawood detention centre. The Guardian has sought comment from his legal representatives.
