Drug trafficker uses NZYQ ruling as his ticket to freedom
A convicted Polish drug smuggler has used the landmark NZYQ ruling to be released from immigration detention.
A convicted Polish drug smuggler has used the landmark NZYQ High Court ruling to walk free from immigration detention, in a legal challenge that signals the arrival of a wave of damages claims for unlawful imprisonment.
The man, who was sentenced to a decade in prison for his role in a drug-smuggling scheme, was granted a bridging visa by a delegate of Immigration Minister Andrew Giles and quietly released into the community last month.
The Polish citizen, known as CZA19, has previously applied for a protection visa arguing that he would be a target for “organised crime figures” if returned to his home country.
Despite his visa application being rejected after he took legal action to compel the government to make a decision, The Australian understands CZA19 is still owed protection and cannot be returned to Poland.
After years in immigration limbo, CZA19 lodged the wrongful imprisonment, or habeas corpus, case in the Federal Court in March, after the High Court decision in November found that indefinite detention was unlawful.
Details of the drug trafficker’s case emerged amid revelations on Friday that the number of non-citizens being monitored in the community has ballooned to 160, an increase from 153 in April.
The figures from the latest Community Protection Board summary report show 85 are wearing ankle monitors and 77 are subject to curfew conditions.
CZA19 arrived in Australia on a tourist visa in 2009 and was charged with importing a commercial quantity of a border controlled drug and sentenced to 10 years and eight months prison before being moved to immigration detention, court documents show.
His application for a protection visa was rejected by a delegate of the then immigration minister in 2019, and the decision was affirmed by the Administrative Appeals Tribunal. Following a fresh legal challenge, the court ordered the Albanese government to pay costs to CZA19 following his release on May 13.
The case remains before the court as CZA19 seeks damages against the federal government, arguing that his detention was unlawful while his protection visa application was being processed.
“In summary, the respondents submit that the issue of whether the applicant’s detention was lawfully authorised for the purpose of processing his protection visa application remains to be resolved as part of the applicant’s extant claim for damages and the issue of costs should await a decision on that question,” the judgment, dated May 28, states. The federal government had held CZA19 in detention since the NZYQ decision based on a legal precedent allowing for a non-citizen to be held in detention while their visa application is being considered.
“The department was under a legal duty to determine CZA19’s visa application as per usual process,” a Department of Home Affairs spokesman said. “The commonwealth maintains that CZA19’s detention was validly authorised while his visa application was being determined.”
Australian Lawyers Alliance spokesman and barrister Greg Barns SC said while he could not comment on a case which is before the court, the NZYQ ruling meant the federal government could not continue to detain people when it’s unlawful to do so.
“The commonwealth has to comply with the November High Court decision of last year,” he said. “I’m aware of – but not involved in – claims for wrongful imprisonment by some individuals who were detained under a power that has been deemed to be unconstitutional.”
Migration Institute of Australia national president Reuben Saul said any case where a person remains in detention “longer than they are supposed to” placed the government in a position where they could be liable for damages.
“When a person has been unlawfully detained, they are entitled to seek damages,” he said.
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