Detained Refugees to Walk Free in Days Following Landmark High Court Decision

Asylum seekers gesture to protesters holding a pro-refugee rights rally from their hotel room where they have been detained in Melbourne on June 13, 2020. William West/AFP via Getty Images

Refugees who were detained indefinitely will have the prospect of setting foot on Australian streets just days after a landmark High Court decision.

The High Court ruling on Nov. 8 found that indefinite immigration detention was unlawful, effectively overturning a 20-year-old precedent.

The court revealed that at least 92 detainees unable to return to their countries of origin could be released, with another 340 detainees in long-term detention potentially joining them.

In a statement published on Nov. 10, Immigration Minister Andrew Giles said the Albanese government is considering the judgment’s implications and will continue to work with authorities to uphold community safety.

“Other impacted individuals will be released and any visas granted to those individuals will be subject to appropriate conditions,” Mr. Giles said.

The announcement by the immigration minister comes after the Coalition expressed concerns over the release of detained refugees who committed serious offences or violated character provisions.

“Now that’s hundreds of potential criminal offenders who are non-citizens to be released onto the streets and Australians will be frightened this morning waking up, realising the implications of this,” Senator Paterson said on Nov. 9.

“We urgently need action from the Albanese government to make sure that the Australian community is safe.”

Senator Paterson also urged the Albanese government to have a “plan B” ready for the Senate to protect the Australian community from “unlawful non-citizens.”

UN Welcomes Ruling

Meanwhile, the United Nations’ refugee (UNHCR) agency on Nov. 9 welcomed the ruling, saying that depriving refugees of their liberty should only be a “last resort” and only when “absolutely necessary.”

Adrian Edwards, the agency’s regional representative for Australia, New Zealand, and the Pacific, noted that the decision has the “potential to begin to align Australia’s immigration detention practices with international law,” reported EFE.

UNHCR has been approached for comment.

On Nov. 8, the High Court overturned the 2004 ruling in Al-Kateb v. Godwin, where indefinite detention of a refugee was lawful as long as the government could relocate the person to another country.

In the case of NZYQ, a stateless Rohingya man from Myanmar, whose criminal conviction of child sex offences prevented other countries—including the United States, the UK, New Zealand, and Canada—from accepting him.

The High Court ruled in favour of NZYQ, making his detention unlawful.

High Court Chief Justice Stephen Gageler said on Nov. 8 that sections of the Migration Act authorising indefinite detention were beyond legislative power as they breached the separation of powers between the executive and judiciary arms of government.

As such, the High Court declared that the “real prospect” of NZYQ being removed from Australia was not “practicable in the reasonably foreseeable future,” and his detention was therefore unlawful.

Solicitor-General Stephen Donaghue, KC, argued before the High Court that overturning the 2004 case would allow those with bad character to enter Australia.

“The more undesirable they are, such that the more difficult it is to remove them to any other country in the world, the stronger their case for admission into the Australian community,” Mr. Donague said.

However, Greens immigration spokesperson Nick McKim hailed the ruling as “long-overdue.”

“People who have been living in a state of perpetual uncertainty can now look forward to freedom and a life beyond the cruelty of indefinite immigration detention,” Mr. McKim said.

According to the Human Rights Law Centre, the average period for which the Australian government holds people in immigration detention is 708 days.

Currently, 124 people have been detained by the government for over five years, with many of these people being stateless.