Asio’s willingness to use foreign evidence obtained under torture to detain an Egyptian refugee for more than a decade on security grounds meant Australia’s spy agency had “acquiesced in the use of torture”, the man’s lawyer has told the full bench of the federal court.
Sayed Abdellatif, an Egyptian national, has been exiled from his homeland for 26 years after being convicted in absentia in a discredited mass trial in Cairo in 1999 for offences he never committed. He arrived with his family in Australia by boat seeking asylum in 2012 – and they have lived in the Australian community for years.
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 his home country. But he has been denied a visa on the basis of the tainted security assessments and held in immigration detention.
The evidence used to convict Abdellatif of terrorism offences was obtained using torture, submissions to the court have outlined. That fact was known by the Australian government since 2015.
In Sydney on Wednesday, the full bench of the federal court heard an appeal lodged by the government against a decision by justice Debra Mortimer in April. That decision found the adverse security assessments made by Asio against Abdellatif – resulting in him being detained for more than a decade – were legally unreasonable and denied him procedural fairness.
Mortimer found the Asio officers who interrogated Abdellatif unfairly prejudged him, calling him a “liar” and accusing him of withholding information.
In her 133-page judgment, Mortimer found there had been the 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”.
She ordered the 2018 security assessment made by Asio – the basis of him being denied a protection visa – and a subsequent 2020 security assessment be set aside.
The decision brought hope for Abdellatif’s release into the Australian community after more than a decade spent in immigration detention.
Michael O’Meara SC, representing Abdellatif, said on Wednesday the discredited torture evidence was used in a material and significant way by authorities.
“It’s difficult to see how that caution [using trial material] was manifested,” he said.
“By being prepared to rely on what was likely the fruits of torture without coming to grips with the fact or fully acknowledging it as it ought to have done, her honour found that Asio acquiesced in the use of torture and that is a breach of its own policies.”
For the government, Perry Herzfeld QC argued Abdellatif’s initial 2018 adverse security assessment used the discredited Egyptian trial material as part of “broader” intelligence including classified material.
He argued the trial material was not “material and significant” and no Asio security assessment policy prohibited consideration of evidence obtained by torture, but rather required Asio to assess the weight accorded to such evidence and to approach it with caution.
“It is not a prohibition, it’s a direction to take into account those matters and therefore take suitable caution in the further use or dissemination of that information,” Herzfeld said.
On 15 September 2020, Asio officials questioned Abdellatif about his phone and social media use and about people with whom he was communicating. Interrogators labelled him a “liar” and accused him of withholding information.
“There was no evidence whatsoever of any inclination to bring an open mind to the question of how the applicant might behave if released into the Australian community,” Mortimer said in her April decision.
Herzfeld argued that Mortimer’s findings that Asio officers were biased and had pre-judged Abdellatif should be rejected.
“The primary judge here found the Asio officers who conducted the interview were actually biased in the sense that they had actually prejudged the outcome – they had a predetermined view when they came in.
“It is a very serious finding … it’s not simply a finding of apprehended bias, it’s a finding that the officers involved had no interest in finding out if the respondent poses a risk to security.”
Herzfeld argued that it was the fifth time Abdellatif had been interviewed and his third security assessment and scepticism expressed by Asio officers did not amount to approaching the matter with a closed mind. He said officers were required to put to Abdellatif that they believed he was being untruthful.
“Even if your honours were to find they approached the interview with scepticism that is not approaching the matter with a closed mind,” the government’s lawyer said.
“If they hadn’t squarely confronted him with their belief that he was lying … there may have been a denial of procedural fairness. There was no way of avoiding putting that to the respondent.”
Justices Michael Wigney, Robert Bromwich and David O’Callaghan heard the appeal lodged by the director-general of security, Mike Burgess, the home affairs minister and the commonwealth. They reserved their decision.
Abellatif remains in detention in Sydney.
