November 10, 2023
The Albanese government will immediately begin releasing people from indefinite detention after Wednesday’s landmark high court ruling, after receiving a flurry of demands from long-term detainees to be set free.
On Thursday the director of Human Rights for All, Alison Battisson, said the government was wrong to claim it needed to wait for the full reasons for the court’s decision, and could be liable to pay compensation for failing to immediately release people who it is not possible to deport.
In addition to releasing the plaintiff in the high court case, the government now concedes that for some detainees it is clear they must be released because it is not possible to deport them.
On Friday the immigration minister, Andrew Giles, said “other impacted individuals will be released and any visas granted to those individuals will be subject to appropriate conditions”.
“We are considering the implications of the judgment carefully and will continue to work with authorities to ensure community safety is upheld.”
On Wednesday at least a majority of the high court ruled that indefinite immigration detention is unlawful when there was “no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future”.
In question time on Thursday the government confirmed it has released the plaintiff in that case, a stateless Rohingya man known as NZYQ who was convicted of sexually assaulting a 10-year-old, but claimed it needed to wait for the court’s full reasons and legal advice before making a call on others.
That’s despite the solicitor general, Stephen Donaghue, telling the court on Wednesday the home affairs department believed up to 92 people could be eligible for immediate release if the commonwealth lost.
On Friday, Guardian Australia confirmed the government will imminently begin releasing cases clearly affected by the NZYQ decision, although some detainees will require further legal advice and the court’s full reasons before a decision.
Earlier, Battisson explained that the government does not have to wait “and shouldn’t” because the high court had “settled” the point of law that indefinite detention is not constitutional.
Battisson said the conditions the court had set for unlawful detention “captures people who are stateless, and those who are recognised as having protection obligations owed to them” who both have “no third country that they could go to”.
“Through no fault of their own they cannot be removed from Australia in the reasonably foreseeable future, so they must be released. Our constitution does not permit their ongoing detention.”
Battisson said that she had written individualised letters for 20 of her clients explaining why each is now entitled to release, sent to the home affairs and immigration ministers and their detaining officers.
Battisson said they were “people fleeing persecution in their countries of origin” including Sudan, South Sudan, Myanmar, Iran, Iraq, and Afghanistan, and who it was recognised faced harms including death, sexual violence or inability to subsist if they were returned.
“I’m surprised they’re not out already,” she said, revealing in some cases she intends to file as early as Friday for their release by seeking writs of habeas corpus.
On Wednesday, Donaghue told the court that all but nine of the 92 people likely to be affected by the NZYQ ruling were in immigration detention because of character concerns, a fact the Coalition has seized on to argue the government must mitigate against the risk of their release.
But Battisson noted the god-like immigration powers do not require “finalisation of a criminal process to cancel a visa” it is “sufficient that someone is charged or the department thinks they are otherwise not of good character”.
As a result, even people whose charges are dropped or they are subsequently found not guilty can remain in immigration detention due to the department’s adverse assessment, which she said was “abhorrent to the separation of powers”.
“It’s not the case that these are marauding hordes of violent criminals – they are a complex group, often traumatised by their refugee experiences.”
Ziya Zarifi, an immigration lawyer, said he is also identifying clients in detention who can’t be removed, such as refugees.
“We will be pursuing letters of demand to seek their release, perhaps on bridging visas, until people can be removed or another country is willing to accept them,” he said.
“But if no other country is willing to take them due to character concerns, then the government has no choice but to release them and take steps to rehabilitate them.”
On Wednesday, Donaghue warned the commonwealth would be exposed to “inevitable” damages claims for false imprisonment and these would be “undefendable” in cases where the government conceded the people had been detained while it was impossible to deport them.
Previous cases demonstrated that just the fact of unlawful detention – even without any other form of mistreatment – can trigger payouts in the order of $350,000 for 18 months unlawful detention, she said.
The president of the AHRC, Emeritus Prof Rosalind Croucher, said for decades, Australia’s system of mandatory and indefinite immigration detention has imposed an enormous burden on thousands of vulnerable people and their families.
“Those still facing indefinite detention are entitled to their freedom,” she said.
“Those detained when they should have been released now have the vindication that their detention was unlawful and may be entitled to restitution.”
