The High Court has ruled that a Rohingya man from Myanmar was unlawfully detained in immigration detention, paving the way for an end to indefinite detention for other asylum seekers who have no immediate alternative country to go to.
Under an earlier High Court ruling, prompted by another man, Ali Ahmed Al-Kateb, it was legal for the government to detain people indefinitely as long as they were removed from Australia as soon as reasonably practicable.
But for many of those awaiting deportation, that time was indefinite.
Today, at the end of a hearing into the Rohingya man’s detention, the High Court overturned its earlier decision and found that his detention had been unlawful.
The man had been in immigration detention after serving time in prison for child sex offences.
During the case, his lawyers told the court that no other country could be found to take him, including members of the Five Eyes allies – the UK, New Zealand, Canada and the US.
But late today, government lawyers told the court they did not believe the American option was off the table.
The court was told there had been ministerial involvement and that government staff had been told ‘no stone should be left unturned’.
Also during today’s submissions, the government told the High Court there were 92 people in a similar position to the man in today’s case.
The court was told most could not return home for fear of persecution and nine were stateless.
Five of the 92 were in an ‘intractable’ situation and could not be removed due to factors beyond their control, including the Rohingya man.
The court heard that many were detained on character grounds, and a few on national security grounds.
The Commonwealth’s attorney general warned the court that if the Al-Kateb ruling was overturned, these people would have to be released and ‘the consequence [would be] unjustifiable claims for damages’.
The High Court judges, however, appeared concerned about the lack of a time frame for those in indefinite immigration detention.
The comment pointed the way to today’s decision.
Government lawyers had warned the court that the man could be sent to the United States before a decision was made.
But the court pre-empted that by recessing for a few minutes before returning to give its ruling.
The court will give its reasons later.
