Landmark High Court ruling paves way to end indefinite detention for asylum seekers with nowhere to go: ABC NewsWednesday, November 8 2023
The High Court has ruled a Rohingya man from Myanmar has been unlawfully detained in immigration detention, paving the way to end indefinite detention for other asylum seekers who have no immediate other country to go to.
Under a previous High Court ruling, which was sparked by another man, Ali Ahmed Al-Kateb, it was legal for the government to detain people indefinitely, so long as they were removed from Australia as soon as reasonably practicable.
But for many of those awaiting deportation, that time was unspecified.
On Wednesday, at the end of a hearing into the detention of the Rohingya man, the High Court set aside its earlier ruling and found that his detention had been illegal.
The man had been in immigration detention after serving time in jail for child sexual offences.
During the case, his lawyers told the court no other country could be found to take him, including members of the Five Eyes allies — the United Kingdom, New Zealand, Canada and the United States.
But late on Wednesday, government lawyers told the court, they did not believe that the American option was off the cards.
The court was told there had been ministerial involvement, and government staff had been told “no stone should be left unturned”.
Also during submissions on Wednesday, the government told the High Court there were 92 people in a similar position to the man in the current case.
The court was told most could not be returned home for fear of persecution and nine were stateless.
Five out of the 92 were in an “intractable” position and could not be removed due to factors beyond anyone’s control, including the Rohingya man.
The court heard many of them were detained on character grounds, with a few on the grounds of national security.
The Commonwealth solicitor-general warned the court if the Al-Kateb ruling was overturned, those people would have to be released and “the consequence [would] be indefensible damages claims”.
But the High Court judges appeared concerned about the lack of time frames facing those in indefinite immigration detention.
“The problem here is with a scenario where the provision is designed to achieve a fact that cannot occur at least in the foreseeable future,” Chief Justice Stephen Gageler said.
The remark pointed the way to Wednesday’s decision.
The government lawyers had warned the court that the man could be accepted into the United States before a decision was reached.
But the court pre-empted that, retiring for a few minutes before coming back to deliver its ruling.
The court will provide its reasons later.
Need to ‘fundamentally reform’ government policy
Executive director of Refugee Legal David Manne said the decision was of profound consequence.
“Detention can no longer be forever,” he said.
“Right now there are people who must be released in accordance with this ruling.
“The government must swiftly get on with releasing these people. It must then also address the very serious consequences of the deprivation of liberty unlawfully for so many people over the years and that may well involve looking into compensation for the harm done.”
Acting managing lawyer at the Human Rights Law Centre Josephine Langbien was in court for the ruling and said it provides an opportunity for the government to reform its policy.
“This is a hugely significant decision which will have lifelong consequences for people who have been detained for years without knowing when or even if they will ever be released,” she said.
The government said it was considering the judgement.
“Safety of the community remains the utmost priority of the government,” a spokesperson told the ABC.
“Individuals released into the community from immigration detention may be subject to certain visa conditions.”
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