The only barrier to repatriating ISIS brides and their children from a Syrian camp is the lack of a “political decision”, a court has been told.
Non-profit organisation Save the Children Australia has brought legal action in the Federal Court seeking an order forcing the government to bring 11 Australian women and their 20 children home.
Described as the “last resort” after advocacy efforts failed to make headway, the civil case is asking for a writ of habeas corpus to be issued requiring the women and children to be brought before the court.
On Thursday, counsel for Save the Children Australia, Peter Morrissey SC said the women, who are not facing any charges, are being unlawfully detained by the Autonomous Administration of North and East Syria (AANES) in “appalling” conditions.
“All of them wish to return to Australia … the US is desperate for repatriations to continue, as is the AANES,” he said.
“Repatriation is the only durable solution to this urgent humanitarian situation.”
The women and children have been held in the Al-Roj detention facility in northeastern Syria since the fall of Islamic State in 2019.
Australia has undertaken two repatriation missions from the camps, with eight orphaned children brought back in 2019 and four women and 13 children returned in October last year.
Save the Children Australia has argued the AANES has shown a willingness to repatriate foreign nationals and evidence before the court “comfortably establishes” Australia has control over their ongoing detention.
The evidence, Mr Morrissey argued, suggests the AANES was “completely dependent” on support from the Global Coalition Against Daesh – of which Australia is a member – which gives the coalition “de facto authority” over the detainees.
The Australian Government has argued AANES holds “complete and unfettered discretion” over the detainees and therefore cannot be compelled to repatriate them.
“Merely being able to ask for a person’s release, and even having high hopes that would be successful, would never be enough,” Counsel for the Commonwealth, Craig Lenehan SC, said.
“Our fundamental point is the applicant fails to prove its case.”
Delivering his closing address, Mr Morrissey said the situation on the ground in Syria was perilous, and the AANES did not maintain long term control.
He told the court communication between Australia’s Ambassador to Turkey Marc Innes-Brown and AANES representatives proved there was an “ongoing plan” to continue reparations after the group was brought back in October.
Evidence before the court, he said, showed officials had made visits to “Australia St” in the camps and spoken with the women.
He argued there was no “particular barrier” preventing further reparations, aside from the lack of “political decisions” to go ahead.
The trial continues.