‘Unprecedented’: High Court reveals reasons for releasing refugees, criminals from ‘unlawful’ detention

Australia’s highest court has delivered its reasons for ordering the release of people being held indefinitely in immigration detention – some of them foreign criminals – after it found the scheme was “unlawful”.

The federal government suffered a humiliating setback after the High Court of Australia earlier this month overturned a decades-long precedent on the nation’s immigration detention scheme, calling it an “unprecedented” ruling.

The High Court of Australia on Tuesday published its reasons behind a landmark decision that found the country’s immigration detention scheme was “unlawful”. NCA NewsWire/Gary Ramage Credit: NCA NewsWire

In its landmark ruling, the High Court justices founda stateless man and convicted child sex offenderfrom Myanmar who had been in detention after serving time in jail for child sex offences had been unlawfully detained.

The man, given the pseudonym NZYQ, had been in detention since May this year.

The Rohingya Muslim arrived in Australia by boat in 2012 and was given a bridging visa in 2014.

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In 2016 he pleaded guilty in the NSW District Court to the rape of a child and was sentenced to five years’ jail with a non-parole period of three years and four months.

The man was taken back into immigration detention in 2018 and a protection visa was refused in 2020.

“Officers were then obliged under s 198 of the Act to remove the plaintiff from Australia as soon as reasonably practicable. The plaintiff also requested to be removed to another country,” the High Court’s reasons state.

Immigration Minister Andrew Giles said the man had been released into the community under ‘strict’ conditions following the ruling. NCA NewsWire / Martin Ollman Credit: News Corp Australia

“As at May 30, 2023, there was no real prospect of his removal from Australia in the reasonably foreseeable future.”

The man’s legal team argued to the High Court that his continued detention was “not authorised” under sections 189 and 196 of the Migration Act (1958).

During his case, the man’s legal team sought leave to reopen the High Court’s decision in another 2004 case titled Al-Kateb v Godwin.

That case stated both sections applied to require the “continuing detention of an unlawful non-citizen … of whom there was no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future … (and) did not contravene CHIII of the Constitution.”

The High Court justices unanimously agreed the man had been unlawfully held in immigration detention.

They found the plaintiff had failed on the statutory construction issue but succeeded on the constitutional issue.

“The court held that ss 189(1) and 196(1), as applied to the plaintiff, contravened ChIII of the Constitution because the plaintiff’s detention was not reasonably capable of being seen as necessary for a legitimate and non-punitive purpose in circumstances where there was no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future,” the judgment states.

“The relief (sought) included a declaration to the effect that his continuing detention had been unlawful since May 30 and continued to be unlawful by reason of there having then been, and continuing to be, no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future.

“The relief also included a writ of habeas corpus requiring his immediate release.”

In a statement, Immigration Minister Andrew Giles said the government had “noted” the court’s decision.

“(It is) a case which the Commonwealth strongly opposed,” he said on Tuesday.

“Community safety remains the utmost priority of the government, which will continue to work with authorities to carefully consider the implications of these reasons and finalise rigorous and robust legislation.”

NSW Greens Senator David Shoebridge said the government’s High Court loss took “some doing” following the unanimous reasons being published.

In a post on X, formerly Twitter, he said: “Not knowing it was about to happen is a whole other thing. You have to wonder who is running the show?”

Tables from the Senate documents revealing the number of detainees by category of serious offences and their time spent in detention. Supplied Credit: Supplied

In the High Court’s reasons, the justices state release from unlawful detention “is not to be equated” with the right to remain in Australia.

“Unless the plaintiff is granted such a right under the Migration Act, the plaintiff remains vulnerable to removal under s 198,” the reasons state.

“Issuing of a writ of habeas corpus would not prevent re-detention of the plaintiff… in the future.”

“Nor would grant of that relief prevent detention of the plaintiff on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody.”

Documents tabled in the Senate on November 16 reveal of the 92 people currently detained, 27 of them fall under the category of “very serious” violent offences.

The category includes “serious violent offences … (of) family/domestic violence, sexual or exploitative offences against women” and “very serious” crimes against children.

Of those detained, 47 had spent more than five years in detention.

One has spent up to 13 years in detention, the documents reveal.

Refugees from Afghanistan (18), Iran (17) and Sudan (10) make up the top three citizenships of current detainees.

9 are considered stateless, the department's document states.

The number of immigration detention detainees by their Australian home state. Supplied Credit: Supplied

40 of the detainees are currently housed in NSW, 24 are in Victoria and 11 are in Queensland.

Eighty refugees were immediately released following the ruling, but there are hundreds more in “long-term detention” who could be released.

While the ruling has been hailed as historic by human rights advocates, the opposition has slammed the potential release of serious criminals into the community.

“The government argued against this but is required, by law, by the court, to release individuals who are affected, as any government would be required to do,” Mr Giles told reporters on November 18.

“The full implications of this unprecedented decision will not be clear until the High Court has handed down the reasons for its decision.

Human rights advocates have hailed the decision as a historic ruling on Australia’s contentious immigration detention scheme. NCA NewsWire/Dan Peled Credit: News Corp Australia

“The government is continually working to ensure that we have a legal framework in place that is effective. And we will consider future legislation, if required, including following these reasons, in order to keep the community safe.”

Mr Giles said the Rohingya man had since been released into the community on strict conditions.

The federal government this week hurriedly allocated $255m to “ensure the safety of the community” following the High Court’s decision.

Villawood Detention Centre in Sydney's southwest. NCA NewsWire / Dylan Robinson Credit: Supplied

Of the funding, $150m will go to the Australian Border Force (ABF) for more staff in investigations, removal and surveillance functions.

Federal police will get another $88m for regional response teams and staff to investigate visa breaches.

More to come.