Brisbane Criminal Defence and Immigration Detention

In May 2014 the Abbott government announced, with typical bombast, the arrival of a new super-agency into an already cluttered law enforcement environment. Backed by fresh legislation and armed troops fitted out in coal-black uniforms, the Australian Border Force (ABF) was to epitomise an increasingly belligerent approach to policing a frontier that the then-Immigration Minister Scott Morrison termed a “strategic national asset.”

This is only further confirmed by their recent intervention into the case of Omar, a young Kuwaiti man who came to Australia to commence a university degree.
Omar’s dream fell apart on a cool, wet Monday in June of 2016. That afternoon, he was visiting a suburban shopping centre in Brisbane when he was arrested. The police alleged he was responsible for a minor sexual assault on a minor constituted by brushing past him in a shopping aisle.

In his time as a detective having investigated many accusations of sexual offences against minors, Sibley suspected that Omar’s account was unlikely to be taken at face value, certainly not without corroborating evidence. He also knew that false complaints of sexual assault are uncommon. Nonetheless, from the outset it was clear that the acts alleged, even if substantiated, were at the lower end of the criminal spectrum.

Sibley was therefore unsurprised when the Magistrate approved bail subject to certain conditions, including the surrendering of Omar’s passport to the court. When he received a telephone call from his client later that afternoon, he expected it to be confirmation of his release.

What Omar instead told him shocked the lawyer: he was now being held at the Brisbane Immigration Transit Centre at Pinkenba. The ABF had stepped out of the shadows and were about to take things in an entirely different direction.

How the ABF became aware of Omar’s arrest remains a mystery. What is apparent is that sometime after the Magistrate bailed Omar but before he was freed from custody, someone in authority contacted the ABF in an evident attempt to subvert the court’s decision.
Up until then, the denial of bail had been entirely a function of Omar’s status as a foreign national; once it was granted, his citizenship became at law immaterial. But the rule of law, not to mention procedural fairness and common decency, tends to count for little when the ABF becomes involved. Ostensibly on the grounds that he failed the Migration Act’s vague “character test,” they grabbed Omar before his court-ordered liberty could be exercised, transferring him directly to Pinkenba and a highly ambiguous form of custody.

Tales of asylum seekers languishing for years in immigration detention are depressingly commonplace. In Omar’s case, conversely, the ABF acted with astonishing haste. Barely two weeks elapsed between his incarceration and deportation. In the fringe world of immigration detention, where actions can be hidden behind the blanket justification of “operational matters” and judicial process overridden by executive discretion, the principal strategy is to cut the individual off from society. Ignoring any basic right as to the presumption of innocence, the ABF presented Omar with two equally unpalatable choices: remain incarcerated at the very least until the court proceedings were finalised, likely to take twelve months or more, or accept an immediate one-way ticket back to Kuwait. Predictably enough, he chose the latter.

The furtive nature of the ABF’s role in Omar’s case was further demonstrated when the matter went back before the Magistrate in July. The prosecutor, acknowledging the accused’s departure from the country, asked for a bench warrant to be issued. This means that the proceedings will remain open indefinitely, in the unlikely event that Omar returns to Australia. Some weeks later, to Hannah’s surprise two uniformed police came looking for Omar; they in turn seemed astonished to find he had left the country. There is little doubt the officers were there to execute the warrant, and the Queensland Police Service have bizarrely claimed that their investigations are continuing, despite Omar’s deportation.
This palpable lack of communication between the ABF and the Director of Public Prosecutions and Queensland Police implies that almost certainly the alleged child victim and his family too have been left completely in the dark, badly let down by the combination of overreach and incompetence on display. For Sibley, the entire affair constitutes an unconscionable failure of process on behalf of the authorities involved.

Ultimately, Omar’s case is not about guilt or innocence, nebulous concepts at best and here rendered obsolete by the intervention of the ABF. It is about justice: for Omar, the complainant child and his family, and most importantly society as a whole. That in contemporary Australia we are so prepared to manipulate justice in the name of “national security” – in areas as disparate as denying the human rights of refugees and visa students to being complicit in unlawful drone attacks upon foreign nations – is tantamount to conceding that there is no longer any justice at all.