Australia ponders asylum-seeker issue after court ruling frees 100 – Nikkei Asia

Friday, November 17 2023

SYDNEY — Around 100 asylum-seekers in Australia have been freed after the High Court ruled their detention to be unconstitutional last week, as activists celebrate the “momentous” decision that has thrown up questions for the government over those still in custody.

The ruling on Nov. 8 ends Australia’s controversial practice of detaining asylum-seekers indefinitely, generally because there is no way to deport them. This regime was introduced by former Prime Minister John Howard’s government over two decades ago.

“It’s a landmark decision that is a fundamental victory for the right to freedom, for the rule of law and for common humanity,” said David Manne, executive director of Refugee Legal, a Melbourne-based legal nonprofit organization that advocates for asylum-seekers. “This puts an end to a very dark chapter in Australia’s history.”

Until the latest decision, Australia routinely detained asylum-seekers it deemed a risk to society, and those who cannot be deported because they are stateless, such as Rohingya. Some are not deported because their countries of origin, will not take them back. Others cannot be deported because their home countries are considered unsafe.

The High Court ruled on Nov. 8 that the detention of a Rohingya asylum-seeker, known as NZYQ, was unlawful. The judges noted that the inability to deport NZYQ did not mean that the Australian government could hold him indefinitely.

Solicitor-General Stephen Donaghue agreed that the decision meant that individuals who are unlikely to be deported in the near future “will need to be released immediately into the community.”

NZYQ arrived in Australia by boat in 2012 and was given a bridging visa, pending processing, in 2014. This allowed him into the community, but he was convicted in 2016 of raping a minor, for which he served two-and-a-half years in an Australian jail. Upon the end of that sentence, he was moved to immigration detention.

The latest ruling overturned a precedent set by the High Court in 2004 that judged a Palestinian man whose application was rejected could be held legally under immigration detention.

The government of the current Prime Minister Anthony Albanese is now in an awkward position. While the new ruling obliges the immigration department to release all asylum-seekers, the High Court has yet to provide details of its conclusions. This leaves the government uncertain about how to proceed with those still in custody.

In the meantime, members of the opposition coalition are accusing the Labor government of releasing hardened criminals into society, and failing to establish a strategy to safeguard Australian communities.

Speaking in parliament on Tuesday, the Shadow Minister for Immigration and Citizenship Dan Tehan pressured the government to introduce firmer commitments to “keep Australians safe from these criminals” in the wake of the ruling, saying that the release of more asylum-seekers “will result in more violent crimes against Australians.”

In response, his counterpart in government, Andrew Giles, said, “We took steps in anticipation of this decision… thinking about all of the arrangements that we would make to keep the community safe.”

In a statement released last week, Giles said the government is considering its next steps.

Figures from the Refugee Council of Australia showed that 1,056 people were in “closed detention” and 282 in “community detention” at the end of August. The average time spent in immigration detention is 708 days, with 361 applicants incarcerated for more than two years, according to the council.