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Indefinite immigration detention ruled unlawful by High Court
By Angus Thompson
The High Court has ruled locking people in immigration detention indefinitely is illegal in a decision that overturns a 20-year-old precedent and could lead to the release of dozens of stateless detainees.
The successful challenge was brought by a plaintiff with the pseudonym NZYQ – whose visa was cancelled because he was convicted of child sex offences – after his legal team argued it was unconstitutional for the Commonwealth to continue to hold a person when there was no prospect of leaving Australia.
At least 90 people currently in immigration detention could be released after this ruling. Credit: Shannon Morris
His barrister Craig Lenehan, SC, said his client was a Rohingyan man – a persecuted group in Myanmar – who was not a citizen of Myanmar “and he is unable to obtain that citizenship”.
“He is not a citizen of any other country and he has no travel document. He is a stateless person,” Lenehan told the court on Tuesday. The man had been detained since he was paroled in 2018, and several attempts were made to deport him.
“The Department [of Home Affairs] has never successfully removed a person, who has been convicted of an offence involving sexual offending against a child, to a country other than a country which recognises the person as a citizen,” Lenehan said.
The court made orders on Wednesday to the effect that the government could no longer continue to detain people if there was no prospect of deporting them in the foreseeable future.
The government is considering the judgment delivered by the High Court, a spokesman for Immigration Minister Andrew Giles said.
“Safety of the community remains the utmost priority of the government. Individuals released into the community from immigration detention may be subject to certain visa conditions.”
Sanmati Verma, acting legal director at the Human Rights Law Centre, said the decision meant an end to the precedent set by Al-Kateb v Godwin, which “allowed the government to lock people up in immigration detention potentially for the rest of their lives”.
Ahmed Al-Kateb was a stateless Palestinian man who was denied a protection visa after arriving in Australia in 2000.
“Indefinite detention ends today,” Verma said, urging the government to immediately act to free people detained in immigration detention for years on end. “This has life-changing consequences for people who have been detained for years without knowing when, or even if, they will ever be released.”
Comment has been sought from Home Affairs Minister Clare O’Neil’s office about the implications of the decision, but Solicitor-General Stephen Donaghue, KC, told the court more than 90 people were in a similar position to the plaintiff.
According to the Human Rights Law Centre, 127 people have been in immigration detention for more than five years, and the average period spent by people in detention is 709 days.
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