The High Court of Australia has ruled that indefinite immigration detention is unlawful.
The result came from a case about the detention of a man awaiting deportation. The High Court ruled this is unlawful because there is “no real prospect” of his removal from Australia “in the reasonably foreseeable future”.
The decision, which overturns a 2004 High Court decision on a similar matter, has implications for Australia’s immigration detention system and may lead to the release of other detainees.
Australia’s Migration Act requires authorities to detain any person who enters or tries to enter Australia without a valid visa.
The purpose of that detention is to hold people until they are either granted a visa or deported.
This law has been used to detain thousands of asylum seekers who tried to enter Australia by boat.
Laws passed in 2012 denied visas to asylum seekers who arrived by boat. Refugees were instead to be resettled in other countries.
At the time, those laws saw thousands placed in detention facilities. Today, many of those people have been resettled elsewhere, while others are living in the community on temporary visas awaiting resettlement.
However, roughly 1,000 people remain in Australian immigration detention (not all are asylum seekers). The Department of Home Affairs says over 90% of detainees have a criminal history.
The case heard by the High Court this week related to a Rohingya man born in Myanmar, who was identified as ‘NZYQ’.
He arrived in Australia by boat in 2012 and was declared ‘stateless’ (meaning he has no citizenship).
NZYQ spent a short time in the community on a temporary visa, but in 2015 was charged and subsequently convicted on one count of child sexual abuse in Australia.
The conviction meant NZYQ’s application was refused, but he couldn’t return to Myanmar due to fear of persecution. The Rohingya people face a long history of persecution by successive governments in Myanmar.
A deal for him to be deported to another country was not secured, which meant Australia was authorised to detain NZYQ indefinitely.
Lawyers for NZYQ argued his detention was unlawful for two main reasons.
The first was that the Migration Act which authorised his detention was based on the assumption that there was a realistic possibility of NZYQ being released. The second was that indefinite detainment in these circumstances should be a matter for the courts, not the Government, to decide.
Chief Justice Stephen Gageler rejected the first argument but agreed with the second, and ordered NZYQ’s immediate release.
Government lawyers argued against NZYQ’s release. They contested the arguments made about the Migration Act. They also argued the decision would cause “considerable practical difficulties and uncertainties” for others in immigration and undermine the Government’s “right to determine who is to be admitted into the Australian community and who is refused”.
Government lawyers told the High Court up to 92 people in detention due to “character concerns” may be impacted by the decision.