The High Court of Australia ruled on Nov. 8 that the federal government’s practice of holding asylum seekers in indefinite immigration detention is unlawful.
The move overturns a 20-year-old precedent that allowed such detention if the unsuccessful asylum seeker couldn’t be moved to another country.
At the same time, shadow home affairs minister, Senator James Paterson, has slammed the ruling, saying that the implications of “hundreds of potential criminal offenders” being released onto Australian streets are “very disturbing.”
The ruling came in the case of NZYQ, a stateless Rohingya man from Myanmar, whose criminal conviction of child sex offences prevented other countries—including the United States, the UK, New Zealand, and Canada—from accepting him.
The High Court ruled in favour of NZYQ, making his detention unlawful.
Additionally, NZYQ’s lawyers revealed that the Australian government attempted to deport him to six countries.
Under the now-overturned ruling in Al-Kateb v. Godwin, the High Court deemed indefinite detention as lawful on the condition that the government could relocate the person to another country.
In NZYQ’s case, home affairs minister Clare O’Neil authorised a “no stone unturned” approach in finding a third country to resettle NZYQ.
High Court chief justice Stephen Gageler said on Wednesday that sections of the Migration Act on the authorisation of indefinite detention were beyond legislative power as they breached the separation of powers between the executive and judiciary arms of government.
As such, the High Court declared that the “real prospect” of NZYQ being removed from Australia was not “practicable in the reasonably foreseeable future,” and his detention was therefore unlawful.
According to the Solicitor General, 92 other people are in the same circumstances as NZYQ.
The Solicitor General also told the High Court that up to 340 people could be impacted by this decision, warning that the ruling would be a catalyst for a wave of compensation claims.
Ruling Has ‘Life-Changing Consequences’: Human Rights Law Centre
According to the Human Rights Law Centre, the average period for which the Australian government holds people in immigration detention is 708 days.Currently, 124 people have been detained by the government for over five years, with many of these people being stateless, meaning that they cannot be returned to their countries.
“This has life-changing consequences for people who have been detained for years without knowing when, or even if, they will ever be released.”
Principal solicitor Hannah Dickinson said the decision involving stateless Palestinian Ahmed Ali Al-Kateb in the now-overturned 2004 ruling had underpinned Australia’s immigration policy for more than two decades.
“This decision will have real, life-changing impacts for those who have been deprived of hope, liberty, and security for years on end … (the) government must now move swiftly to act on the High Court’s decision, freeing those who have been unlawfully detained,” Ms. Dickson said in a statement.
Labor MP and former High Court associate, Andrew Leigh, expects a government response in the coming days.
“The ruling has just come down so the government is studying and will respond on its implications … it is a fresh judgment, we'll study it and respond,” Mr. Leigh said.
This also follows a challenge last week that saw convicted terrorist Abdul Nacer Benbrika retain his Australian citizenship after the High Court deemed the cancellation of his citizenship as unconstitutional.
