The High Court has ruled that it is unlawful to hold people in immigration detention indefinitely, in a decision that overturns 20 years of precedent and could lead to the release of dozens of stateless detainees.
The successful challenge was brought by a claimant using the pseudonym NZYQ – whose visa was cancelled because he was convicted of child sex offences – after his legal team argued it was unconstitutional for the Commonwealth to continue to detain a person when there was no prospect of them leaving Australia.
His lawyer, Craig Lenehan, SC, said his client was a Rohingyan – a persecuted group in Myanmar – who was 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,” Lenehan told the court on Tuesday. The man had been detained since he was released on parole in 2018, and several attempts had been made to deport him.
“The Department [of Home Affairs] has never successfully removed a person who has been convicted of an offence involving a sexual offence against a child to any country other than a country that recognises that person as a citizen,” Lenehan said.
The court on Wednesday ordered that the government could no longer detain people if there was no prospect of deportation in the foreseeable future.
The government is considering the High Court ruling, a spokesman for Immigration Minister Andrew Giles said.
“The safety of the community remains the government’s first priority. Individuals released from immigration detention into the community may be subject to certain visa conditions.”
Sanmati Verma, acting legal director at the Human Rights Law Centre, said the decision meant an end to the precedent set by Al-Kateb v Godwin, which “allowed the government to lock people up in immigration detention, potentially for the rest of their lives”.
Ahmed Al-Kateb was a stateless Palestinian man who was refused a protection visa after arriving in Australia in 2000.
“Indefinite detention ends today,” Verma said, calling on the government to act immediately to release people who have been held in immigration detention for years. “This has life-changing consequences for people who have been detained for years without knowing when, or even if, they will ever be released.”
Home Affairs Minister Clare O’Neil’s office was asked to comment on the implications of the decision, but Attorney General Stephen Donaghue KC told the court that more than 90 people were in a similar position to the claimant.
According to the Human Rights Law Centre, 127 people have been in immigration detention for more than five years and the average length of detention is 709 days.
