VIC: Man declared security threat by ASIO loses case

AAP General News (Australia)
12-01-1998
VIC: Man declared security threat by ASIO loses case

By Gordon Feeney

MELBOURNE, Dec 1 AAP - A former Kuwaiti resident, declared a threat to Australia's national
security by ASIO after he sought refugee status, today lost a Federal Court battle.

But solicitors for Nashmy Obed Sultan, 35, said they were likely to appeal the case, which
was one of the first ever involving a challenge to an ASIO security assessment.

Mr Sultan, born in Kuwait but refused a passport as he was part of the Bedoon ethnic
minority, claimed he was jailed and tortured by Kuwaiti authorities after the 1990 invasion of
Kuwait by Iraq.

He was later deported to Iraq and spent time in Jordan and Syria before seeking refuge in
Australia last year.

Mr Sultan is being held at a Melbourne detention centre by the Immigration Department
pending the outcome of the litigation.

In a decision today, Justice Ross Sundberg said the Immigration Department ruled in August
last year that Mr Sultan qualified as a refugee.

But a character assessment was sought from the Australian Security Intelligence
Organisation (ASIO) which ruled Mr Sultan was "directly a risk to Australian national
security".

The judge said the ruling meant the Immigration Department could refuse Mr Sultan refugee
status, even though it found he had a well-founded fear of persecution if returned to Kuwait.

Mr Sultan had challenged ASIO's assessment in the Administrative Appeals Tribunal (AAT),
asking that ASIO be required to provide the reasons for the national security declaration.

During that hearing, ASIO sought an adjournment so that it could consult with an "overseas
agency" that had provided information about Mr Sultan.

The AAT ruled that some of ASIO's reasons be given to Mr Sultan in an amended form, but
ASIO appealed the ruling.

Justice Sundberg upheld the appeal, ruling that whether or not Mr Sultan was given ASIO's
reasons, the AAT had no power to review ASIO's national security assessment.

Mr Sultan's solicitor, Martin Clutterbuck of the Refugee and Immigration Legal Service,
said the case was one of the first involving a challenge to a security assessment by ASIO.

"I think it is a pretty disturbing precedent in that it says ASIO assessments are not
reviewable under any circumstances," Mr Clutterbuck said.

"We are likely to appeal. Everyone agrees that if he goes back to Kuwait he'll be
persecuted or even killed."

He said he was concerned ASIO's information may have come from Kuwait, the very country Mr
Sultan feared persecution from.

Mr Clutterbuck said that as a member of the Bedoon ethnic minority in Kuwait, Mr Sultan had
a low social status there, and was not entitled to a passport. He had travelled on false
documents.

Mr Sultan was stateless as he held no passport which would pose problems if Australia tried
to deport him, Mr Clutterbuck said.

Some details from the court case, relating to ASIO's information sources, were the subject
of a publication prohibition order.

AAP gf/jlw/it

KEYWORD: KUWAITI

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