High Court bid to repatriate ‘ISIS brides’ as legal road comes to an end

A legal push to repatriate Australian women and children with links to Islamic State from a Syrian detention camp will be decided by the nation’s highest court.

Australian women and children at the Al-Hawl camp in northeast Syria.

A legal push to repatriate Islamic State-linked Australian women and children from a Syrian detention camp will be decided by the highest court in the land, as the Albanese government faces another High Court challenge.

Lawyers will argue that the federal government does have control over the detention of the so-called “ISIS brides” in the Al-Roj camp, meaning their imprisonment is unlawful and they should be returned to Australia. 

The legal challenge, filed by non-profit Save the Children appealing a Federal Court ruling, argued an error had been made in finding that there were not sufficient grounds to conclude the commonwealth had control over the detention of the remaining women and children. 

The unlawful imprisonment, or habeas corpus, claim argues the Australian government had “de facto control” of the women and children, believed to number about 34, because of its agreement with the Autonomous Administration of North-East Syria, which oversees the camp, that they will be repatriated on Canberra’s request.

However, the Federal Court in June rejected the appeal on behalf of the remaining women and children, finding the “threshold” for control had not been met, meaning the High Court is the last avenue for appeal.

Save the Children has applied for leave to appeal in the court, arguing the government has an obligation to rescue the women and children – all eligible for Australian citizenship – from the squalid detention camp.

Australian women and children at al-Roj camp in northeastern Syria. Picture: Ellen Whinnett

“Court below erred in concluding that a writ of habeas corpus should not issue because there were not reasonable grounds on which to conclude that the commonwealth had control over the detention of the … women and children by virtue of an agreement or arrangement with AANES,” documents filed in the High Court said.

In October 2022, the government repatriated four women and 13 children, the wives and children of ISIS fighters, from the Al-Roj camp

Amid speculation that Labor’s plans to repatriate the remaining women and children had been shelved after efforts stalled, the government declined to comment on the latest development.

The remaining women have been detained in the camp without charge since the fall of Islamic State in March 2019.

The case, which names the commonwealth and Home Affairs Minister Clare O’Neil as respondents, comes after the government has been buffeted by a series of wrongful imprisonment cases concerning non-citizens following the landmark NZYQ decision in November.

“It is common ground that de facto control is enough for habeas to issue … that it was possible for the commonwealth to have control over the custody of individuals physically detained outside Australia … and that the detention was unlawful,” the documents said.

Save the Children CEO Mat Tinkler, whose organisation is representing six women and 11 children, has previously argued the government has the power to bring the remaining cohort home and it was the right thing to do.