November 10, 2023
A High Court ruling against locking people in immigration detention indefinitely has been labelled “disturbing” and could lead to dozens of stateless detainees being released, as a 20-year precedent is overturned and a refugee who raped a 10-year-old boy is set free.
Refugee advocates celebrated the landmark ruling delivered late Wednesday, which could trigger the release of 92 other non-citizen detainees who have not been released into the community due to “character concerns”, and cannot be deported to their home countries.
Newly appointed Chief Justice Stephen Gaegler said “at least a majority” of the High Court bench agreed NZYQ, a stateless Rohingya man, had been unlawfully detained since May, and his continued detention would be unlawful.
“The court will publish its reasons for the order in due course,” Chief Justice Gaegler said.
NZYQ was faced with indefinite detention because no country would resettle him, due to a criminal conviction for having sexual intercourse with a minor.
His barrister Craig Lenehan SC told the court at a hearing on Tuesday: “He is not a citizen of Myanmar and he is unable to obtain that citizenship. He is not a citizen of any other country and he has no travel document. He is a stateless person.
“The Department (of Home Affairs) has never successfully removed a person who has been convicted of an offence involving sexual offending against a child, to a country other than a country which recognises the person as a citizen,” he said.
Solicitor-General Stephen Donaghue KC said that while it was a “hard case”, NZYQ should remain in detention “while attempts are made to secure a third country to which he can be removed.”
“If arrangements ultimately cannot be made with the USA then, in our submission, the act operates validly to require him to be detained until another country can be found that will accept him or until the minister decides under various personal, non-compellable powers to grant a visa, and we accept that it is possible that that might take some time, potentially a long time,” he told the court.
The result overturns the case of Al-Kateb which had authorised unrestricted detention of non-citizens without a visa, even if it is impossible to deport the individual. A spokesperson for Immigration Minister Andrew Giles said that detainees released into the community may be subject to special visa conditions. “Safety of the community remains the utmost priority of the government,” the spokesperson said.
Opposition home affairs spokesman James Paterson described the implications of the ruling as “disturbing” as dozens of people now face release.
Senator Paterson told reporters in parliament house on Thursday the government needed to urgently act to ensure the community would remain safe.
“A man, a non-citizen, who has been in detention for committing a very serious child sex offence has been declared by the High Court to have been unlawfully detained and called to be released. The implications of this for Australia and the Australian community are very disturbing,” Senator Paterson said.
“There are 92 other people, according to the Solicitor-General, who are in the same circumstances. These are also non-citizens who committed serious offences or violated the character provisions of the Migration Act and who need to be released.”
Greens immigration spokesperson Nick McKim said the High Court had “struck a blow for liberty and decency”.
“This is a long-overdue rejection of a Labor/Liberal policy which has seen vulnerable people warehoused in detention with no end in sight,” he said.
“For too long, Peter Dutton and his Labor replicas have acted unlawfully and contrary to the Constitution and foundational principles of a liberal democracy.”
Australian Human Rights Commission president Rosalind Croucher said the decision was “truly historic” and thanked those who had “contributed in their own ways to bringing this about”.
“I also acknowledge the thousands of people who have endured years in immigration detention with no light at the end of the tunnel. This is their day.”
