One of the Australian women hoping to return from a detention camp in Syria will be blocked from coming home by the temporary exclusion order imposed on her by the Albanese government.
Representatives of the family had hoped the government would relent and allow the woman, who has a child, to return to Australia if Syria deported her – under the condition she would be placed under a terrorism control order or electronic surveillance once in Australia.
But legal experts, government sources and sources close to the Syrian government agree that, under the law, she will be blocked from travelling to Australia. The exclusion order would be flagged to the airline if she bought a ticket and the woman would be refused passage, sources said.
“In practice, a person with a [temporary exclusion order] will not be allowed onto a plane whose destination is Australia,” said a government source who declined to be named because he is not authorised to speak publicly.
This might happen at a hub such as Doha, or more likely in Damascus.
Under the order, the woman maintains her Australian citizenship so is not rendered stateless, but she is placed in limbo. It is unclear whether the single-entry passport the government has granted her could be used to travel anywhere else.
The situation poses a dilemma for the woman, whose child is not subject to the order. She can either stay in Syria with her child, who is also an Australian citizen, or send the child to Australia with the remaining six women and 13 children, who were the last of the Islamic State-linked family members to leave the al-Roj camp this week.
Four women and nine children who had been in the camp returned to Australia earlier this month, and three of the women were arrested. Two were charged with crimes against humanity relating to enslavement and using a slave, and one was charged with entering a terrorist zone.
The remaining seven women and 14 children left the camp late this week and arrived in Damascus. Camp director Haval Rashid confirmed the movement of the women, saying there were now no Australians left in al-Roj, where they have lived for the past seven years.
Family advocates say the mother under the temporary exclusion order (TEO) is unlikely to part from her child, so both would be trapped in Syria for up to two years – longer if the government issues a new exclusion order.
Asked if Australia would provide them consular assistance during that time, the government source said that since it had not offered assistance to the women and children in the camp, it would not offer help for someone in an airport in a “relatively safe part of the world”.
Another source who is close to the Syrian government but also not authorised to speak publicly agreed the woman would not be permitted to leave Damascus.
“We can handle her,” the source told this masthead. “I don’t think it’s going to be an issue for a single person – the issue is if there are any dependants. We’re going to seek advice about how to help them in Syria.”
As for the family advocates’ hope that the government might allow the woman entry to Australia subject to other conditions, such as a terrorism control order or electronic surveillance, the Australian government source said it would not negotiate on the issue.
“I’m not sure what leverage the families think they have,” he said.
Don Rothwell, an international law professor at ANU, said the woman was in “completely unknown legal territory” because this was the first time such an order would be tested.
“If you were a lawyer representing this individual, the best outcome would be for the [temporary exclusion order] to be lifted,” Rothwell said. “There is a legal avenue to challenge, but on the basis of the factors I’m aware of … unless you could identify some sort of administrative error on the part of the minister, or error or irregularity in the security advice the minister receives, the ability to challenge would be very limited.”
The lawyer for the women did not respond to queries about a challenge, or whether they would apply for a “return permit”, under which the minister can agree to a return. Government sources would not confirm whether a return permit had been sought.
The exclusion order was imposed by Home Affairs Minister Tony Burke in February during the political conflagration over an earlier attempt to return the so-called ISIS brides.
An exclusion order is placed on ASIO advice, and if the minister suspects it would help prevent a terrorist act, or training or support for terrorism. It can also be imposed if ASIO assesses the person to be “directly or indirectly a risk to security for reasons related to politically motivated violence”.
In February, Burke said the woman who is subject to the order was an immigrant to Australia who had been granted citizenship under John Howard’s prime ministership, and had gone to Syria while Tony Abbott was prime minister.
The government source said the woman could try returning to her birth country, but Burke said in February: “Given the country that she came from in those circumstances, I’m … pretty confident they wouldn’t recognise that citizenship.”
Save the Children chief executive Mat Tinkler said that “all innocent Australian children deserve a chance at safety home in Australia regardless of the actions their parents may have done. As we’ve seen from previous repatriations, there is no security risks that these women impose that can’t be handled by Australia’s robust systems.
“The TEO just kicks the can down the road, makes this woman someone else’s responsibility and doesn’t deal with Australia and fundamental obligations.
“Remember, two-thirds of the people we’re talking about are children, and when they finally arrive home this will be the first time many of the children have slept in a bed outside a tent in a detention camp. Let’s not get too preoccupied with only a discussion about the mothers.”
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Michael Bachelard is a senior writer and former deputy editor and investigations editor of The Age. He has worked in Canberra, Melbourne and Jakarta, has written two books and won multiple awards for journalism, including the Gold Walkley.Connect via X or email.