ACT News

Bid by Indonesian teen jailed for people smuggling to have conviction quashed hits setback

Ali Yasmin served about two years of a five-year jail sentence for people smuggling.
Ali Yasmin served about two years of a five-year jail sentence for people smuggling. 

An Indonesian teenager who was wrongly jailed as an adult has lost a Federal Court case which would have allowed him to appeal his conviction then possibly sue for wrongful imprisonment.

But Ali Yasmin is still hopeful Attorney-General George Brandis will refer his case to the Court of Appeal of Western Australia soon.

Yasmin, also known as Ali Jasmin, served about two years of a five-year jail sentence for people smuggling.

The sentence meant he was sent to a maximum security prison at age 14, despite the Australian government having evidence at the time that showed he was a child.

Yasmin was released in 2012, aged 16, and returned to his home on the island of Flores, Indonesia.

In December, Yasmin's lawyers, Canberra firm Ken Cush and Associates, filed a case in the Federal Court in a bid to force Mr Brandis to refer the case to the WA court.

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Once referred, Yasmin could then ask that court to quash his conviction as he had been a child at the time.

Indonesian boat crew found to be children should not have prosecuted, and those whose age had been in doubt should be sent home, according the federal government policy of the time.

If Yasmin were to succeed in having his conviction quashed, the way would be clear for him to make a bid to sue for wrongful imprisonment.

But Justice Jayne Jagot dismissed Yasmin's application on Thursday, finding the Commonwealth Attorney-General did not have a legal duty to consider the request.

"This is not a case where there is any suggestion that the Attorney-General has decided not to deal with the petition," Justice Jagot wrote in her decision.

"Given the context, and the language of the [law], I would not construe it as imposing any duty on the Attorney-General to decide whether or not to refer a petition to the Court of Appeal."

Yasmin was ordered to pay the Commonwealth's costs.

Yasmin's lawyer, Sam Tierney, said his client had been disappointed by the decision.

"He remains hopeful that in light of the Human Rights Commission Report into his case and given the Commonwealth Director of Public Prosecutions has already indicated he supports a referral of Mr Yasmin's case back to the Western Australian Court of Appeal that the Attorney-General will consider his request and make a decision soon," Mr Tierney said.

Yasmin was 13 years old when he crewed a boat carrying 55 Afghan nationals to Australia in December 2009.

The Department of Immigration estimated he was about 14.

But the Australian Federal Police estimated his age at 19 after using an unreliable wrist X-ray technique.

A subsequent Australian Human Rights Commission probe discovered evidence of Yasmin's age – including his birth certificate and a confirmation letter from the Indonesian National Police – had been ignored by the authorities and never presented at his court case.