Recently the high court has held, in a landmark decision of NZYQ to set a convicted child rapist free and overturning a 20-year-old precedent. And justice was done.
Indefinite immigration detention
So what did indefinite immigration detention mean? In the case of Al Kateb v Godwin concerned the power of the Australian Government to indefinitely detain asylum seekers was litigated.
PIAC represented five Iraqi and one Kuwaiti asylum seekers in applications to the Federal Court for release from migration detention. They claimed that they were being indefinitely held in detention. Their applications relied on the decision in Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs. That case had established that where there is ‘no reasonable likelihood or prospect’ of a person being removed from Australia in the ‘reasonably foreseeable future’, it was unlawful to continue to detain them.
During the hearing of the matters, the Minister conceded that, at least at the time, there was no real likelihood or prospect of PIAC’s clients being removed from Australia in the reasonably foreseeable future. Most of them had been in detention since 1999, awaiting removal from Australia for periods of up to three years since the exhaustion of domestic legal processes related to their refugee applications. PIAC’s clients were released into the community on interim orders in April 2003.
In August 2004, the High Court handed down its decision. The Court overturned Al Masri and decided that the Migration Act 1958 (Cth) does give the Commonwealth government the power to detain people in immigration detention, despite the fact that there are no reasonable prospects of their removal. This was the case even if it resulted in indefinite detention. The decision was by a majority of 4:3, with three members of the High Court finding that the relevant section of the Migration Act did not authorise indefinite detention, and should be read so as not to infringe fundamental human and common law rights.
After this decision, the Minister for Immigration reviewed the files of all long-term detainees. Many were granted bridging visas, which allow them to remain out of detention while still being subject to removal. Six clients were granted bridging visas. They received no social security and were not permitted to work. They were reliant on charity.
Another of PIAC’s clients, who had been in detention for over six years, and who could not be removed to India, was granted a bridging visa.
But as reported in the press NZYQ overturns the case of Al-Kateb, which had authorised indefinite detention of non-citizens without a valid visa even in circumstances where it is impossible to deport the individual.
On Wednesday the chief justice, Stephen Gageler, said that “at least a majority” of the justices agreed that sections of the Migration Act which had been interpreted to authorise indefinite detention were beyond legislative power.
The home affairs department believes the result could trigger the immediate release of 92 people who cannot be returned to their country of origin, including refugees and stateless persons, with the detention of a wider cohort of 340 people in long-term detention also in doubt.
In the first case heard since Gageler was sworn in as the chief on Monday, the high court ruled in favour of NZYQ, a stateless Rohingya man, who faced the prospect of detention for life because no country had agreed to resettle him, due to a criminal conviction for sexual intercourse with a 10-year-old minor.
The high court declared that because NZYQ had been detained when there was “no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future” his detention was unlawful.
It ordered he be released immediately, with the commonwealth to pay his costs. Gageler said the court’s reasons for its decision would be published “in due course”.
In submissions, NZYQ’s lawyers had argued the court must choose between an interpretation of the law that detention must cease if removal was not practically possible, or accept that “if it never becomes practicable to remove the detainee, the detainee must spend the remainder of his or her life in detention”.
Although NZYQ lost on the interpretation of the Migration Act, he won a separate constitutional argument that indefinite immigration detention breaches the separation of powers between executive government and the judiciary because it is punitive.
NZYQ’s case was supported by the Australian Human Rights Commission and the Human Rights Law Centre.
HRLC acting legal director, Sanmati Verma, said that “indefinite detention ends today”.
“This has life-changing consequences for people who have been detained for years without knowing when, or even if, they will ever be released,” she said.
“The government must respect the constitutional limits of detention and act immediately to free people who have been indefinitely detained.”
In Wednesday’s hearing the solicitor general, Stephen Donaghue, appeared to accept this, arguing that people in NZYQ’s position – where it is not reasonably practicable to deport them in the foreseeable future – “will need to be released immediately into the community”.
The shadow attorney general, Michaelia Cash, called on the government to “explore all available options to limit the risk posed by problematic individuals”.
The Greens senator Nick McKim said the decision “puts the lie” to the claim that “no-one is being detained indefinitely in immigration detention”, and that “anyone being held in contravention of this ruling” must be released.
The government is considering the high court’s decision. A spokesperson noted individuals released “may be subject to certain visa conditions”.
Donaghue warned that such a ruling would trigger “undefendable” compensation claims and the release of “undesirable” people into the community.
NB – a new Bill regarding a new bridging visa has passed the lower house – we will keep you posted…
