Richard Niall

Richard Niall, SC ... asserted ASIO had denied his client procedural fairness. Photo: Jason South

THE continued detention of a Sri Lankan refugee deemed a security threat by ASIO was justified because it was too early to conclude that no other country would take him, the High Court was told yesterday.

Although seven countries have so far rebuffed approaches and the United Nations has refused to assist, counsel for the Gillard government said steps were still being taken to find a country that would accept the 36-year-old refugee.

Stephen Donaghue, SC, conceded that the refugee's removal was ''not presently reasonably practicable'', but argued there were no grounds to reopen the Al-Kateb decision of 2004 upholding the indefinite detention of asylum seekers who cannot be removed to third countries.

Dr Donaghue also maintained that ASIO had ''comfortably cleared'' the requirements of procedural fairness to the man, who has been detained for almost three years after fleeing Sri Lanka.

He told the court it was ''utterly pointless'' for ASIO to question the refugee, known only as M47, on whether he still supported the resistance movement in Sri Lanka because he had told ASIO he had been forced to become a member of the movement before fleeing the country.

''It would have really been, we submit, a farcical exercise,'' Dr Donaghue told the court.

Lawyers for the refugee say ASIO denied him procedural fairness because no specific allegations were put to him that went to the question of whether he was a threat to security.

They are also seeking to overturn the 2004 Al-Kateb decision of the court that found it was lawful to detain asylum seekers who cannot be removed to another country.

Dr Donaghue said the refugee could have explained why he was not a security threat in an interview where he was asked about his involvement with the Tamil resistance, known as the LTTE.

He also maintained that Australia's protection obligations under the refugee convention did not require the refugee to live and work in the community.

Richard Niall, SC, asserted that ASIO had denied his client procedural fairness by failing to put specific allegations to him and, instead, asked open-ended questions. Had the refugee been asked, he would have said that he had not, and would not, support the movement, Mr Niall said.

Dr Donaghue was challenged after he asserted that there were no grounds to revisit the Al-Kateb because it was a ''fully reasoned and considered decision''.

Justice Virginia Bell said the detention regime had shifted from one where unlawful non citizens were held in detention pending removal, to one where options included community detention.

''If one turns to what it is that this plaintiff seeks, it is not that he be entitled to live and work in Australia as if he were a lawful non-citizen,'' Justice Bell said.

''It is that he not be detained, conceivably indefinitely, and he acknowledges that his liberty in Australia, pending orders made by this court, might be subject to conditions.''

The hearing is expected to conclude tomorrow.

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