This 10-minute video was put together at around the time Sheikh Mansour was forced to leave Australia for Iran in 2010, and it beautifully illustrates the central role the man played in the spiritual community that he helped to create. The affection displayed for Mansour in the video is indicative of the love the whole community had for him, and what is even more remarkable is that even after five years of absence that love and esteem has not diminished!

The high-point of the video for me is the recording of Mansour trying to practice the old chorus “We shall overcome”, which we had planned to sing at the protest rally in Canberra. I tried to teach it to him repeatedly but he could never grasp the tune, eventually creating his own special Sheikh Mansour version (which I now prefer to the original).

Father Dave

Mansour Leghaei and Father Dave

Sheikh Mansour and Father Dave in Tehran in April 2014

It has been five years since Sheikh Mansour Leghaei was forced to leave Australia for reasons that were never disclosed to him!

It has been more than five years since the Sheikh lodged an appeal with the United Nations Human Rights Committee (UNHRC), claiming that he had been mistreated by the Australian government who should have told him what he was being accused of before breaking up his family!

Now, after more than five years, the UNHRC has decided that they agree with the Sheikh!

Long before taking his case to the UNHRC, Sheikh Leghaei took his case to the High Court of Australia, asking only that he might be told what crime he’d allegedly committed so that he might be able to defend himself. He was told then that in cases of national security foreigners had no right to a fair trial!

Leghaei then took his case to the United Nations, on the grounds that Australia was signatory to various human rights treaties that guaranteed the right to a fair trial to all persons in the country, regardless of race or religion or nationality. He was told when he lodged the appeal that it would take between eighteen months and two years for the UNHRC to reach a decision!

Two years seemed like a long time to wait, but just when those two years had almost elapsed, the Australian government wrote to the UNHRC suggesting that they had ‘additional submissions’ they wanted to make regarding the case!  This delayed the decision yet another two years!

But now, five years after his deportation, due process has finally been completed and a decision has come down from the United Nations, vindicating Sheikh Mansour Leghaei’s right to a fair trial!

The relevant paragraphs of the 9-page verdict read as follows:

10.3  The Committee recalls its jurisprudence that a State party’s refusal to allow one member of a family to remain in its territory may involve interference in that person’s family life. In the present case, the author of the communication had been living with his family in Australia for 16 years without ever being charged or warned by the domestic authorities as regards his personal conduct. His two elder sons were Australian citizens since 2003 and his youngest daughter was born in Australia and attended Australian schools, developing social relationships there. Upon the author’s request for a permanent visa, the State party decided not to grant it for what it considered to be “compelling reasons of national security”, while it allowed the other family members to remain on its soil. Eventually, the author’s wife decided not to be separated from her husband, they both decided that their minor daughter should stay with them and departed from Australia on 27 June 2010, absent a right of the author to stay. The Committee considers that a decision by the State party that involves the obligatory departure of a father of a family, which includes a minor child, and to compel the family to choose whether they should accompany him or stay in the State party is to be considered “interference” with the family, at least in circumstances where, as here, substantial changes to long-settled family life would follow in either case.[2] In the present circumstances, the Committee considers that the decision by the State party to refuse the author’s request for a visa which led to this situation constitutes interference within the meaning of article 17 of the Covenant.

10.4  The Committee has to determine whether such interference with his family life is arbitrary or unlawful pursuant to article 17, paragraph 1 of the Covenant. The Committee recalls that the notion of arbitrariness includes elements of inappropriateness, injustice, lack of predictability and due process of law. In the present case, the author had lived more than 16 years legally in the territory of the State party, apparently without any legal restrictions, when he had to leave, a fact that has not been refuted by the State party. The Committee considers that disrupting long-settled family life imposes an additional burden on the State party as far as the procedure leading to such disruption is concerned. The author was never formally provided with the reasons for the refusal to grant him the requested visa which resulted in his duty to leave the country, except for the general explanation that he was a threat to national security based on security assessments which he did not even receive a summary of. While his legal representatives were provided with information on the evidence held against the author, they were prevented by a decision from the judge from communicating with the author any information that would permit him to instruct them in return and refute the alleged threat he posed on national security.

10.5  In light of the 16 years of lawful residence and long-settled family life in Australia and the absence of any explanation from the State party on the reasons to terminate the author’s right to remain except for the general assertion that it was done for “compelling reasons of national security”, the Committee finds that the State party’s procedure lacked due process of law. The State party has therefore not provided the author an adequate and objective justification for the interference with the author’s long-settled family life. In the specific circumstances, the Committee considers that the State party has violated the author’s rights under article 17, read in conjunction with article 23 of the Covenant, and, as a result, has also violated the rights of his family under those provisions.

12. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective and appropriate remedy, including a meaningful opportunity to challenge the refusal to grant him a permanent visa; and compensation. The State party is also under an obligation to prevent similar violations in the future.

Legal persons I have spoken to say that such a clear and decisive chastisement of the Australian government from the United Nations is rare indeed. Clearly the UNHRC took the case very seriously and saw Sheikh Leghaei’s mistreatment as a dangerous precedent!

So what happens next?

We can’t be sure.

For better or for worse, the United Nations has no direct means of coercing member countries to obey its rulings.  Countries such as Israel have flouted UN resolutions over the years with impunity. Australia may think it can do the same!  Even so, a spokeswoman for Attorney-General, George Brandis, has indicated that he will respond to the ruling within the 180-day limit set by the United Nations!

Perhaps in the next six months Sheikh Mansour Leghaei will indeed see justice! Indeed, perhaps his case will set a precedent for better treatment for all foreign nationals in Australia!

Father Dave

Father Dave Smith

Parish priest, community worker, martial arts master, pro boxer, author, father of four.

an update by Father Dave

It seems that the Australian Government has suddenly decided that they have more information about our deported friend, Sheikh Mansour Leghaei, that they wish to share – at least with the United Nations!

More than two years has elapsed since the deportation-with-trial of Sheikh Mansour Leghaei. Before the deportation took place, a complaint was lodged by Mansour and his family with the United Nation Human Right Committee (UNHRC), claiming that the Australian government had breached various international Human Right Conventions to which it was signatory in the way it had treated Mansour.

Various communications took at that time place between the UNHRC, the Australian government, and the legal representatives of Sheikh Mansour and his family. The case was then left with the UNHRC who informed us that it would take them 18 months to 2 years to return a decision.

With that time period now having almost fully elapsed, a ruling from the UNHRC may have been imminent except that on June 6th 2012, the Australian government wrote again to the UNHRC, claiming that it “will be lodging additional submissions in response to counsel’s comments.”

What is the Australian government up to? The correspondence gives no indication as to the nature of these ‘additional submissions’, nor does it offer any time-frame  within which it intends to lodge such submissions, nor does it provide any justification as to why such submissions should be accepted at this late stage.

It is possible that this fresh initiative on the part of the government is an indication that they are finally taking Sheikh Mansour’s case seriously. It seems far more likely to me though that this move is simply designed to stall the process and let the next government deal with the embarrassment pursuant to Australia’s flagrant violation of Sheikh Mansour’s fundamental human rights!

The legal team representing Sheikh Mansour have written to the UNHRC, objecting to the request for late submissions and asking that his case be given immediate consideration.

It’s been more than a year since Sheikh Mansour Leghaei was forced to depart Austarlia as an alleged security risk, having never been told what it was that he was supposed to have done wrong! Mansour lives quietly with his family but his friends in Australia have by no means given up on his return.

Complaints over Mansour’s treatment by the Australian government were made to the United Nations Human Rights Committee (UNHRC) early in  2010, but we still await a final ruling.  The Austarlian government did eventually make a response to questions posed by the UNHRC. Sheikh Mansour’s team in Australia subsequently responded to the Australian government’s response. The case is before the UNHRC and we await a final ruling with a great degree of confidence.

In the meantime questions continue to be raised about the role of ASIO in Australia. They seem to be accountable to no one – pursuing people for reasons that often prove to be completely erroneous, and making assessments of people that can destroy people’s lives but which they never have to prove.

The following 7.30 Report segement was put together by Greg Miskelly:

The following article was written by Ben Saul,  Associate Professor of International Law at Sytdney University.  It first appeared in the Sydney Morning Herald, Monday June 7th.

In Franz Kafka’s novel The Trial, an ordinary man finds himself trapped inside the byzantine processes of a shadow justice system. When he asks what he has done wrong, the bureaucrats reply, “It’s not our job to tell you that.”

When he goes to court, he and his lawyers are not allowed to see any of the evidence against him.

His faceless accusers always remain unknown to him. Inevitably, in a system such as this, he is found guilty. All around him, life continues as normal, as if the fair trial of one man is of no concern to the world.

Kafka’s story is a terrifying glimpse into a world which, on the surface, claims to be ruled by law, but in reality is one where the modern bureaucratic state exercises total control over the individual. The individual’s right to be treated decently is extinguished for an unknown greater good. Kafka was writing about rising authoritarianism in early 20th-century Europe, but he could well have been describing Australia’s migration and security laws.

Mansour Leghaei is a long-term resident of Australia soon to be deported to Iran on national security grounds. All he has been told by the intelligence agency ASIO is he is a risk to national security. He has been shown no evidence by ASIO or in any of the court proceedings he brought to challenge ASIO’s assertion.

Absurdly, he has received letters from the authorities asking him to answer the allegations against him, when he has no idea what they are. A Federal Court judge observed his right to procedural fairness had been reduced to ”nothingness”.

Because Australia has no bill of rights, in Leghaei’s case, Australian law cares nothing for the right to a fair hearing of foreigners in security cases. This places Australia in direct breach of its international law obligations under the human rights treaties which it agreed to. Human rights law recognises the importance of a country’s security concerns, but requires minimum guarantees of fairness for an affected person.

The Australian approach is at odds with much of the liberal democratic world. In Britain and continental Europe, which face greater security threats than Australia, human rights law requires a person to be told the substance of the allegations. Sources and informants and other sensitive information can be protected, but an affected person must always receive a summary of the reasons and evidence. That delicate balancing of interests is a sign of living in a civilised society bound by the rule of law.

The denial of a fair hearing is foreign to our ancient common law tradition. The common law depends on an adversarial process, in which a person can challenge the evidence against them. Only be exposing allegations to the harsh light of day can their truth be tested.

Allegations may be false, informants may bear grudges, conduct may have innocent explanations, and intelligence may be misinterpreted. Few can forget that Iraq was invaded in 2003 based on botched intelligence; no reasonable Australian can have blind faith in ASIO.

Where a person is unable to see or test the evidence, it cannot possibly be determined whether the person is actually a risk to national security or not. Deporting Leghaei in such circumstances would be arbitrary, capricious, and internationally unlawful.

It would also deprive Australia of a moderate religious leader and voice of tolerance, as well as depriving his children, who are Australian citizens, of their father. As a Federal Court judge said: “His deportation may well cause hardship to utterly blameless Australian citizens and permanent residents”.

For that reason, the United Nations Human Rights Committee has ordered Australia not to deport him until the UN has ruled on his complaint against Australia.

The UN’s temporary order aims to prevent the ”irreparable harm” to the Leghaei’s family life which will result if he is torn apart from his wife and children – including his 14-year-old daughter, who will lose her father – by deportation. The UN’s order is binding under international law, necessary to ensure the procedural integrity of the complaints system.

While the Rudd government talks the talk of human rights and global governance, signing up to every treaty under the sun, it is in individual cases the rubber hits the road.

By announcing that it will deport Leghaei in defiance of the UN’s order, the government has revealed its true colours and its contempt for international law.

Its commitment to the UN system is flaky and selective. Kafka Kevin’s hypocrisy is remarkable, particularly when a tedious and splenetic Opposition turns up the heat on immigration.

Leghaei’s request of the government is not radical: tell him what he has supposedly done, let him explain it, and only then deport him if the allegations are true.

That is what a fair and civilised society ruled by law would do.

No Australian can have confidence in our security where it is based on faceless accusers and secret evidence – and where ordinary people are judged in the shadow of the law.

Professor Ben Saul

Assoc. Professor Ben Saul

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