Some time in the next year, Darko Desic will finish a prison sentence begun in 1990 – interrupted by three decades of a hardscrabble liberty – to face the bizarre prospect of being deported to a country that no longer exists.
Desic’s case, with its movie-plot travails and redemptive arc, has drawn international attention and seen his community on Sydney’s northern beaches rally to his aid.
A plea for clemency under New South Wales’s rarely invoked royal prerogative of mercy is currently before the attorney general.
But his case is also one of a rising trend of deportation and indefinite immigration detention in Australia, where experts say it is “harder to become a member of the Australian community, and easier to be expelled from it”.
A secretive existence
“I believe,” the lean, bearded man told stunned officers on the front desk of Dee Why police station on a quiet September Sunday, “you’ve been looking for me”.
So long, in fact, had police been looking for Desic, they’d stopped searching.
Desic had been sentenced to a maximum of three years and eight months in prison in 1990, after being convicted of two counts of cultivating cannabis.
But in July 1992 – 19 months into his sentence – he used a hacksaw blade to cut through the bars of his cell in Grafton jail, and bolt cutters to cut through the perimeter fence, and fled.
He escaped, he said, to avoid being deported at the end of his sentence to his homeland of Yugoslavia, which was then descending into a brutal civil war, and from where he had fled as a teenager in the 1970s to escape compulsory military service.
Yugoslavia collapsed in the early 1990s. The country to which Desic legally belongs no longer exists. The Adriatic port town of Jablanac where he grew up is now part of Croatia.
In the 29 years since his escape, Desic had built a life on the margins.
He’d never held a Medicare card – when his teeth rotted, he’d pulled them out himself with pliers. He couldn’t apply to Centrelink for assistance. He walked or caught a bus to every job because he couldn’t get a driver’s licence.
It was a secretive existence, but hardly solitary: his had also been a life of friendship, of labour, of community and reciprocity.
A tradesman, he’d taught himself stonemasonry, and worked cash-in-hand jobs, fixing rentals for local real estate agents. He manned the till at a local bottle shop.
He was “Dougie” to his community.
But Desic’s liberty had always been precarious, and the Covid-19 pandemic saw the net close in. His work dried up. The tumbledown house he shared with a mate in Avalon, replete with an umbrella over the uncovered outdoor dunny, was sold, and he found himself sleeping in the sand dunes behind the beach.
He confided in a friend.
“Mate, I’ve done the crime, so I’ll deal with it.”
A police source put it bluntly: “He handed himself in to get a roof over his head.”
Magistrate Jennifer Atkinson sentenced Desic to two months of additional prison time, on top of completing his original sentence.
“He has well and truly changed over time,” she said. “Moreover he has shown remorse and contrition by handing himself in to police.”
But Atkinson said there was no alternative to prison for the serious offence of escaping custody.
“He chose to take tools and break out of the custodial centre … I accept he had real fears about what might happen to him [if sent to Yugoslavia].”
Desic’s sentence is due to expire on 29 December 2022.
‘Sydney has been my home’
It’s what happens beyond prison that worries Desic most.
The Australian Border Force has written to him to tell him that at the end of his sentence his visa will be cancelled, and he will be taken directly from prison to immigration detention, before being removed from Australia.
“He’s not a complainer, but he’s certainly very stressed,” his lawyer Paul McGirr told the Guardian.
“With the prospect of being sent away from Australia to a place he doesn’t know, you could imagine how that would feel – being locked inside a small cell and not being able to control anything. We are all trying to do the best we can for him.”
His community has rallied. Locals on the northern beaches have offered him a job, a home, and a GoFundMe page has raised more than $34,000.
Through his lawyer, Desic this week said: “I’ve tried to be the best person I can in the beaches community and I owe all the people who are supporting me the world.
“I see myself as an Australian and hope the government will understand that for almost half my life Sydney has been my home.”
‘Grossly inhumane’
McGirr has lodged a petition, supported by members of Desic’s family and community, seeking clemency on his sentence, with the hope of preventing deportation.
He is seeking commutation under the royal prerogative of mercy, a broad discretionary power that technically rests with the NSW governor, who acts on the advice of her ministers.
There is no legal restriction on the use of the power, but it is, government documents insist, “only exercised in rare and exceptional circumstances, where it is necessary in the public interest”.
It is not an avenue of appeal, nor is it an acquittal.
The petition is now with the state’s attorney general, Mark Speakman.
His spokesperson confirmed “the attorney general will advise the governor on the matter”.
Desic’s visa status was a matter for the commonwealth government, the spokesperson said.
“This is a unique case,” McGirr told the Guardian. “Clemency is not something we would seek for all matters, but there is a huge groundswell of support from the community.
“Nothing is being gained by a 64-year-old man sitting in a cell, worrying about what happens if he is released. This man has lived a crime-free life for 30 years: he doesn’t claim to be perfect, but he’s lived a good life. He’s worked and contributed, he’s helped people in his community.
“And at the end of all this, Australia is going to drop him in a place he doesn’t know, that he’s not been to in more than three decades. That is grossly unfair and inhumane. That’s not the Australia I grew up in.”
But the decision on Desic’s right to stay in Australia rests not with NSW – which sentenced him for his crime – but with the federal government’s home affairs department.
Asked about Desic’s situation, the department of home affairs said it would not comment on individual cases, but said it took seriously “its responsibility to protect the Australian community from the risk of harm posed by non-citizens who engage in criminal conduct or other behaviour of concern”.
A spokesperson said non-citizens who wanted to stay in Australia must satisfy identity, health, character and security requirements.
“Non-citizens in Australia, who do not hold a valid visa will be liable for detention and removal as soon as practicable, pending resolution of any ongoing matters.”
‘Regime of alarming secrecy’
The government’s use of its “character test” to cancel visas has escalated dramatically over the past decade, increasing nearly tenfold from 139 in 2012-13 to a peak of 1,278 in 2016-17.
In 2020-21, 946 people had their visas cancelled, resulting in their detention or expulsion from Australia. Drug offences were the most common cause for cancellation (126), followed by assault (109). Ten people had a visa cancelled because of an “association” with a person or a group, without being charged with or convicted of any crime.
This year, the government has sought to deport a man for being a member of a motorcycle club that was not outlawed in the state where he lived: he was never accused or charged with a crime. Another man who was acquitted of a crime also had his visa cancelled.
In both cases, the government was overruled by the courts, but a new law currently before parliament would allow the government to use secret evidence to deport migrants from Australia or indefinitely detain stateless people, such as Desic.
Legal organisations and rights groups say the law would install a “regime of alarming secrecy” and prevent people from contesting deportation or indefinite detention based on information that might be erroneous, maliciously planted or misinterpreted.
Sangeetha Pillai, a senior research associate at the University of NSW’s Kaldor Centre for International Refugee Law, said Desic’s case presented the government with a choice on what to do next. With his permanent residency cancelled, Desic will become, under the migration act, an “unlawful non-citizen” who must be detained or removed from the country.
That can’t be to Yugoslavia, but if a state that has emerged in its place – likely Croatia, given his origins – agrees to accept Desic, he could be deported there.
“If there’s somewhere that he can be sent to, he will be sent there,” Pillai said.
“But if there’s no place that agrees to take him, what he faces is indefinite detention. [The] Al-Kateb [judgment in the high court concerning a stateless refugee] says ‘if that’s forever, that’s forever’. If it never emerges there’s a place that will take you, then you stay in detention.”
Pillai has argued consistent legislative changes over two decades have massively expanded the federal government’s powers to exclude people from the Australian community, making it easier for non-citizens, including long-term permanent residents, to be stripped of their visas on character or security grounds, and subsequently detained or removed from Australia.
“Post-9/11, Australian law has become increasingly exclusionary: it is harder to become a member of the Australian community, and easier to be expelled from it,” she wrote.
The “god powers” held by immigration and home affairs ministers – so-called even by former ministers who held them and were uncomfortable with their unfettered capabilities to determine the course of someone’s life – are among the most powerful held by any minister in Australia.
“The discretion is very, very broad,” Pillai told the Guardian. “If the minister thinks that a person’s past or present, criminal or general conduct indicates they are not of good character, and the minister thinks it is in the national interest, they can cancel a visa and that person will be deported.
“Whether that’s a good idea is another question. This man, Darko Desic, appears to be loved by his community, his life is here, he is part of the Australian community.
“What is the actual public interest in getting rid of this person, a person who has done no harm for 30 years and who has made a contribution in that time.”
