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Ali Leghaei – Sheikh Mansour’s son – has started a petition, asking the Australian Minister for Immigration to accede to the directions of the United Nations’ Human Rights Committee (UNHRC) by reassessing his father’s case.

Click here or the pic to sign the petition now.

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.

Assoc. Professor Ben Saul

The following is an open letter from the supporters of Sheikh Mansour Leghaei to Australian Prime Minister Kevin Rudd.

The Hon. Kevin Rudd, MP
Prime Minister of Australia
Australian Parliament
Canberra, Australian Capital Territory, 2600

June 3, 2010

Dear Prime Minister

Re: Request to prevent the deportation of Sheikh Mansour Leghaei in accordance with the communication of the United Nations Human Rights Committee of 21 April, 2010.

We are supporters of Sheikh Mansour Leghaei, a moderate Iranian cleric who leads the 1500-member Imam Husain Islamic Centre in Earlwood and is the elected head of the local Interfaith Committee.

As you will be aware, Dr Leghaei and his family have lived peacefully in Australia for 16 years. His application for Permanent Residency in Australia has been denied due to two Adverse Security Assessments issued by ASIO in 1997 and 2004.

A leading proponent of interfaith dialogue and religious tolerance in Sydney, Dr Leghaei strenuously denies he has ever been a threat to Australia’s national security.

Contrary to the right to a fair hearing enshrined in the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory, Dr Leghaei has never been informed of the nature of the allegations against him, either by ASIO or in any of the court proceedings he has brought to challenge ASIO’s assertion. In one of these hearings, a judge of the Federal Court of Australia observed that Dr Leghaei’s right to procedural fairness had been reduced to ‘nothingness’.

Australia’s failure to guarantee a fair trial is at odds with much of the liberal democratic world: in Britain and Europe, for example, human rights law requires that a person always be told the substance of the allegations. The denial of a fair hearing is also foreign to our ancient common law tradition, which requires that a person can challenge the evidence against them in an adversarial process.

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

On April 21, the United Nations Human Rights Committee issued a request, under rule 92 of its rules of procedure, that the Australian Government not deport Dr Leghaei and his accompanying dependents to Iran while their case is under consideration by the committee.

However in contravention of this request, the Minister for Immigration, Senator Chris Evans, announced on May 17 that Dr Leghaei would not be granted a visa and that he was expected to make preparations to leave the country by June 28.

This breach of Dr Leghaei’s human rights has provoked concern among the international human rights community. Support for his case has now been received from, amongst others: Bishop Desmond Tutu of Cape Town; Bishop Riah Abu El-Assal, Bishop of Israel, Palestine, Jordan, Syria and Lebanon; Máiread Corrigan-Maguire, Nobel Peace Prize laureate; Dr Chandra Muzaffar, Malaysian political scientist; Professor Hans Köchler, President of the International Progress Organization; Dr Norman Finkelstein, American political scientist, and Bishop George Browning, retired Bishop of Canberra and Goulburn.

Dr Leghaei and his family have also received thousands of letters of support from members of the Anglican, Catholic, Indigenous and Muslim communities. His removal from Australia will result in the closure of the Centre and deprive 1500 Muslims of a leadership which preaches tolerance and peace.

Today more than 1,000 concerned Australians from different community backgrounds have travelled to Canberra to deliver this letter to you.

We applaud your Government’s stated commitment to human rights and global governance. At a time when it is more important than ever to build bridges between people of different faiths, we call on you to ensure that the principles of human rights and the right to a fair trial are upheld in this individual case.

Therefore we respectfully request that you provide an assurance to Dr Leghaei that he will not be removed from Australia until the UN Human Rights Committee has finally determined his case on its merits.

Sydney, April 1:  Christians in the Dulwich Hill and Marrickville area are staging a 24-hour prayer vigil over the Easter Weekend to pray for the welfare of the local Islamic community and for their spiritual leader, Sheikh Mansour Leghaei.

Representatives of the Anglican, Catholic and Uniting churches as well as members of the indigenous and Muslim communities are expected to join the vigil at the Holy Trinity Church, Dulwich Hill, from 9 am on Saturday, April 3 until 9 am on Easter Sunday.

Dr Leghaei, a moderate Shia cleric, is facing deportation along with his wife and 20 year-old son.  He is a key member of the local interfaith community, which holds dialogues across religious divides to address common community issues such as youth outreach and marriage counselling.

“I’m not trying to downplay the differences between our faiths,” said Father Dave Smith, parish priest at Holy Trinity Dulwich Hill, “but there are fundamental things that unite us that are greater than our differences, such as our commitment to justice for this good man.”

Despite living in Australia for 16 years, Dr Leghaei has been denied permanent residency due to two Adverse Security Assessments issued by ASIO. He has never been told the reason for the assessments and strenuously denies that he has ever been a threat to national security.

Prominent human rights and civil libertarian groups, including the International Commission of Jurists and the NSW Council for Civil Liberties, have raised concerns over the lack of procedural fairness in ASIO’s treatment of Dr Leghaei .

Dr Leghaei has lodged a last ditch appeal to the Immigration Minister, Senator Chris Evans, to allow him to remain in Australia and continue his important work.

“We believe that everybody should have the right to a fair trial, regardless of their race or religion, and regardless of whether they are citizens or not.  This in itself is an issue that should have everyone at prayer,” Father Dave said.

Media are invited to cover the prayer vigil

When: Saturday, April 3, from 9 am

Where: Holy Trinity Church, Cnr Seaview & Herbert Sts, Dulwich Hill

Father David Smith, 61-2-9569-1255 (or use contact form at www.fatherdave.org)

For more details, download the Easter Prayer Vigil poster here