An Iranian family who are now the only refugees held in the Darwin detention centre are trapped in legal limbo, as their lawyers argue there is no basis for their continued detention after eight years in Australia’s offshore system.
Hajar Maghames, 32, said she had “no resources left to withstand the oppressive situation” facing her parents, Malakeh and Yaghob, and her brother Abbas.
The Maghames family arrived in Australia by boat in 2013 and were detained on Christmas Island before being transferred to Nauru in March 2014. As members of the Ahwazi Arab ethnic minority, who are regularly persecuted in Iran, they were granted refugee status in 2019.
In February 2020, they were transferred to immigration detention in Darwin so that 61-year-old Yaghob could receive medical treatment, including for a five-year-old injury to his left elbow.
But the legality of their detention was called into question after an orthopaedic surgeon found in December that there was no prospect of successfully operating because the injury was too old.
As a result, the family’s lawyers maintained, the purpose of bringing them to Australia no longer applied, and they should be released into the community.
In March, the federal court found their detention was lawful for a specific period of time, namely from January 2021 – when Hajar asked to be transferred back to Nauru – until the date of the March court order.
Hajar subsequently withdrew the request, explaining she made it out of desperation, as the conditions in Darwin were intolerable, and she feared further harm on Nauru, where she said she had faced sexual harassment and violence from local men, including being stabbed in the arm.
In federal court last week, the family’s lawyers argued that Australia must undertake a “non-refoulement” assessment to ensure she was not returned to a place where she would suffer further persecution.
While they wait for that matter to return to court, the Maghames family remain in the Northern Alternative Place of Detention, which consists of small cabins at the back of Darwin airport. The only other people who had been held there – another Iranian couple and their son, who were waiting for their resettlement in the US to be scheduled – were transferred to detention in Melbourne without warning late on Tuesday night.
The Maghames family has also been interviewed for possible resettlement in the US, but in July were advised that their case was “currently pending additional processing”.
Hajar has complained about conditions in the cabins, saying she has been denied privacy and guards regularly came into her room at night and woke her up by shining torches in her face. Her mother was “constantly in tears”, she said.
“This feels like a relentless form of punishment,” she said, accusing the government of spending “massive amounts of money” to keep the centre open for a tiny number of refugees.
Hajar said she had also suffered extreme back, neck and leg pain and was diagnosed with sciatic nerve damage, which had required admission to Royal Darwin hospital. After the sudden transfer of the other family she collapsed and was again taken to hospital. Her father is diabetic and her mother has suffered depression, as well as a chronic knee injury that significantly restricts her mobility.
A spokesperson for the Australian Border Force said people held in alternative places of detention had access to “indoor and outdoor exercise and activity areas, and to appropriate food … cultural, recreational and sporting activities, internet and computer facilities, televisions, and clean, comfortable sleeping quarters”.
Detainees had access to healthcare services “broadly comparable with those available within the Australian community under the Australian public health system”, they said.
The couple’s eldest son came to Australia separately by boat three months earlier than the rest of the family and now lives in Adelaide. His mother, Malakeh, said she was desperate to see her oldest son “one more time”.
Dr Sara Dehm, senior lecturer at the faculty of law at the University of Technology Sydney, who has put the family’s case to the Australian Human Rights Commission, said: “Australia’s decision to keep recognised refugees in closed, indefinite immigration detention in Darwin has caused severe mental distress and ongoing harm. The minister has the complete discretion to grant this family a temporary or permanent visa so that they can rebuild their lives in the Australian community.
“This family has experienced prolonged legal limbo and suffering since arriving in Australia nearly eight years ago. Expelling refugees to offshore detention on Nauru or PNG does not discharge Australia of its obligation to provide asylum, nor to ensure they receive decent and necessary medical care.”
A spokesperson for the home affairs department said they would not comment on individual cases.
However, they reiterated that refugees transferred to Australia for medical treatment were “encouraged to finalise their medical treatment so they can continue on their third country resettlement pathway, return to Nauru or PNG, or return voluntarily to their home country or another third country”.
The case will return to court on a date yet to be decided.
