In a landmark decision on Wednesday, Australia’s High Court ruled that indefinite immigration detention is unlawful. The decision overturns a 2004 ruling that said non-citizens without visas could be detained indefinitely as long as the government intended to remove them as soon as ‘reasonably practicable’.
The current case centres on a stateless Rohingya refugee facing the prospect of life in detention. The man was born in Myanmar and arrived in Australia by boat as a teenager in 2012. He had been granted a temporary visa, but it was cancelled in 2015 when he was convicted of a criminal offence and imprisoned. Upon completion of his sentence in 2018, the government transferred him to immigration detention. The Australian government had rejected his visa application on the grounds that he had committed a ‘serious offence and was a danger to the community’.
As an ethnic Rohingya, he is effectively denied citizenship under Myanmar’s 1982 Citizenship Act. Six other countries that the Australian government asked to resettle him have also rejected him.
In the 8 November ruling, the High Court found that because there was no real prospect of the man being removed from Australia in the ‘reasonably foreseeable future’, his continued detention was unlawful and he must be released immediately.
The ruling could trigger the release of more people from immigration detention. There are reportedly 92 people in a similar position, most of whom have been refused visas on character grounds. Most could not be deported to their home countries because of a well-founded fear of persecution.
The Australian government has been holding hundreds of non-citizens in immigration detention for years. The average detainee is held for 708 days and there are currently 124 people who have been detained for more than five years.
Successive Australian governments have used the detention of asylum seekers as a form of deterrence.
Since 1992, Australia has had a policy of mandatory detention for all asylum seekers arriving by boat. In 2013, the government tightened this policy further, requiring those arriving by boat to be sent to offshore detention or turned back to the country from which the boat departed.
Under international human rights law, immigration detention should be an exceptional measure of last resort, not a punishment.
The High Court’s decision offers real hope for those who have spent years in limbo in Australian immigration detention.
