Australia palms off alleged Islamic State member to New Zealand

Australia has abrogated its responsibilities by revoking the citizenship of a dual national suspected of trying to join the Islamic State, writes Dr Binoy Kampmark.

“New Zealand frankly, is tired of having Australia exporting its problems.”

THESE STERN words from New Zealand’s Prime Minister Jacinda Ardern were a response to another abrogation by its neighbour of sovereign responsibility which has become second nature. It concerned the fate of a 26-year-old who had held the citizenship of both countries until last year.

The individual in question, travelling with two children, had been identified by the Turkish Ministry of National Defence as a member of the Islamic State, having been the subject of an Interpol blue notice.

In the words of the Ministry, they had tried:

'... to enter our country illegally from Syria [but] were caught by our border guards in Hatay’s Reyhanlı district.'

The woman in question is also known as “S.A” or, according to the ABC, Suhayra Aden of Melbourne.

An important fact was that Aden had left New Zealand at the age of six for Australia.

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Ardern was keen to point out that Aden was:

'... resident in Australia from that time, became an Australian citizen, left Australia for Syria, and travelled on an Australian passport.'

Fair-minded people 'would consider this person Australian, and that is my view too'.

The reaction from Australia’s Prime Minister Scott Morrison was that of an unconcerned bully and, it should be said, not particularly fair-minded. The unilateral cancellation of citizenship had been prompted by national security interests. “My job is Australia’s interests,” he declared.

That entailed a race to the cancelling line: if the national in question could have her citizenship revoked, New Zealand would assume the security and administrative burden.

Ardern snapped:

“I never believed that the right response was simply a race to revoke citizenship; that is not the right thing to do. Australia did not act in good faith.”

Morrison’s swatting reply was to suggest that Australia did:

“...not want to see terrorists who fought with terrorist organisations enjoying privileges of citizenship, which I think they forfeit the second they engage as an enemy of our country.”

With typically faulty reasoning, the Australian Prime Minister deferred to the process rather than any human agency. The cancellation was procedural, mechanical.

He claimed:

“The legislation that was passed through our parliament automatically cancels the citizenship of a dual citizen where they’ve been engaged in terrorist activities of this nature. And that happens automatically. And that has been a known part of Australia’s law for some time.”

Appallingly, Morrison is correct insofar as the legislation does enable that outcome. Section 33AA of the Australian Citizenship Act 2007 (Cth) comes to mind. Its central point is conduct that cancels or renounces citizenship where the person 'acts inconsistently with their allegiance to Australia'.

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Such conduct can involve a range of activities, which include: engaging in international terrorist activities using explosive or lethal devices; engaging in a terrorist act; providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act; and financing a terrorist.

Membership of a declared terrorist organisation supplies the intent; it is irrelevant, on reading this atrocious legislation, what the reasons might be for the person to be a member of that organisation. What of coercion and duress?

Section 35 of the same Act similarly declares that the citizenship of an individual will cease if that person engages in service outside Australia in the armed forces of an enemy country or a declared terrorist organisation.

The absence of judicial scrutiny, proper legal defence and evidence in these cases entails the nastiest of tyrannical presumption, beyond rebuttal: you are said, on paper, to be a terrorist and accused of such. Never you mind whether it is alleged or not, actual or verifiable. Citizenship is stripped as a matter of course, guilt is assumed.

The cancellation of Australian citizenship has also thrown Aden’s two children into a legal quagmire. “My concern,” expressed Ardern, “is that we have a situation where someone is now detained with two small children.” Children have a right to nationality and, so far as feasible, have the right to know and be cared for by their parents.

The citizenship issue with the children is pertinent as those born overseas to either Australian or New Zealand nationals can claim citizenship upon application. The extinguishing of citizenship in this instance means, effectively, that the children lose that line.

It is a point that has been taken up by the UN Committee on the Rights of the Child.

The Committee recommended in 2012 that Australia:

'Undertake measures to ensure that no child is deprived of citizenship on any ground regardless of the status of his/her parents.'

The act of removing citizenship, historically, has always been considered the gravest of deprivations, what in Roman law was termed civiliter mortuus, or a civil death. It has now become accepted, and acceptable practice, by countries who use the argument that the loss of citizenship for a dual national will not imperil a person with statelessness.

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There is still somewhere else to go: except, of course, when that country refuses to accept or acknowledge the individual in question.

This was the situation that befell the British school girl Shamima Begum, who joined the Islamic State in Syria when she was 15 and was stripped of her UK citizenship in 2019.

Unfortunately for Begum, she was disavowed by her other country of nationality, Bangladesh, in what became an inter-state game of 'hot potato'.

As she reflected at the time:

'I wasn’t born in Bangladesh, I’ve never been to Bangladesh and I don’t even speak Bengali property, so how can they claim I have Bangladeshi citizenship?'

Begum subsequently argued that she should be able to return to the UK to challenge the revocation. The Court of Appeal found in July 2020 that 'the only way in which she can have a fair and effective appeal is to be permitted to come into the United Kingdom to pursue her appeal'.

The Supreme Court is due to hand down a decision as to whether Begum can return to challenge the deprivation of her citizenship.

Casting a withering and suspicious eye at such individuals as Begum and Aden for their choices is natural, but they have been left to the mercy of executive actions undertaken by ministers who care less about judicial oversight than political urgency and legal expediency.

The evidence threshold is minimal, confined to shallow presumptions. Most glaringly of all, it has put paid to that most cherished of presumptions: innocence.

Dr Binoy Kampmark was a Cambridge Scholar and is an Independent Australia columnist and lecturer at RMIT University. You can follow Dr Kampmark on Twitter @BKampmark.