Laws allowing the home affairs minister to cancel the Australian citizenship of a dual national suspected of terrorist activities are being challenged in the high court.
An urgent case was filed on Friday on behalf of a 34-year-old Turkish Australian currently imprisoned in Damascus, Syria, whose lawyers say is at “imminent danger of torture, serious bodily harm or death” after his Australian citizenship was stripped on 2 July.
According to documents filed in the high court by his sister, Delil Alexander left Australia for Turkey then Syria in April 2013. He was arrested by Kurdish militia in March 2018 and found guilty of unspecified offences by a Syrian terrorism court in January 2019 due to admissions he says were obtained under torture.
In July 2020 the charges were downgraded to “secondary involvement in offences”. Alexander was sentenced to five years’ hard labour but was later pardoned.
Despite the decision, Alexander remains behind bars in limbo – unable to be sent to Turkey because his Turkish citizenship is under a different name, and unable to come to Australia because the home affairs minister, Karen Andrews, cancelled his Australian citizenship.
Asio had advised the minister Alexander had “likely engaged in foreign incursions and recruitment by entering or remaining in al-Raqqa” after it became a “declared area” in December 2014, according to the court filing.
In the Syrian terrorism court, Alexander denied the conduct of which he was accused and that he was part of any terrorist group or activity. He said that he went to Syria to marry his wife Zehra and did not live in the conflict areas.
On 13 July Alexander was moved to Far’ Falastin, a prison operated by Syrian intelligence, which prompted the warning from his lawyers that he is at risk of torture, harm or death.
The case, launched by his sister, Berivan Alexander, on his behalf because he is unable to be contacted, seeks to overturn not only the decision to cancel his citizenship but to prove that the ministerial power to do so is invalid.
Alexander’s case is the second major challenge against Australia’s citizenship stripping laws, after Melbourne woman Zehra Duman challenged the automatic cancellation of her citizenship.
Launched in the high court in June 2020, that case has stalled due to the plaintiff’s inability to instruct her lawyers.
According to his application to the high court, seen by Guardian Australia, Alexander’s case will argue that the “aliens power” in the constitution does not allow the government to remove the citizenship of a “a natural-born Australian citizen who has not renounced citizenship”.
The application argued that stripping Alexander of citizenship had “no discernible capacity to assist in the defence” of Australia, because an exclusion order prevents him returning until at least January 2022, the Australian Federal Police do not intend to prosecute him, and other legislation allows him to be monitored if he does return.
It also claimed there is an “implied limitation” in the constitution “preventing the involuntary deprivation of Australian citizenship”.
“The commonwealth parliament cannot unilaterally or arbitrarily alter or remove a person’s constitutional status as one of ‘the people of the commonwealth’.”
The power to cancel an Australian’s citizenship for conduct such as “engaging in foreign incursions” and terrorist recruitment should be reserved for a judge, as the minister should not be able to punish individuals not convicted by the courts by “banishing or exiling” the person, it said.
“The vice of [the section] is that it empowers the minister permanently to exclude from the Australian community a citizen that she alone considers has engaged in the conduct element of a criminal offence, without any conviction following a trial by jury and, indeed, even if the person has been acquitted of an offence in respect of the conduct in question.”
In 2015 the Abbott government created powers to strip Australian citizenship from dual nationals convicted of terrorist offences or deemed to have renounced citizenship by their own conduct, even without a conviction.
The law was watered down from the original proposal pushed by then home affairs minister, Peter Dutton, to allow even sole nationals of Australia to be stripped of citizenship, in cases where they were entitled to apply for citizenship of another country, after a backlash in cabinet from then-attorney general George Brandis and others.
Nevertheless Dutton had said he expected the laws to be challenged after they were criticised by leading constitutional lawyers, human rights groups, ethnic community organisations, refugee organisations and then human rights commissioner, Gillian Triggs.