Australia’s highest court has revealed its reasoning behind a landmark ruling that led to the release of more than 140 detainees from immigration detention.
The Supreme Court ruled earlier this month that indefinite immigration detention was unlawful, overturning a 20-year precedent and triggering the release of the detainees.
The court on Tuesday afternoon published the reasons behind its decision in a case brought by a Rohingya refugee who had served a prison sentence for the rape of a 10-year-old boy.
The prosecutor, who was given the pseudonym NZYQ, faced the prospect of life in prison because he was stateless and no country was willing to take him in.
Australia’s highest court has revealed the reasoning behind a landmark ruling that led to the release of more than 140 detainees from immigration detention. (A released detainee is pictured wearing an ankle monitor at a Sydney motel. He is not the NZYQ claimant)
The court unanimously ruled that part of the Migration Act used to detain NZYQ was outside the Commonwealth’s legislative power and unconstitutional.
NZYQ, who had spent five years in custody after being released from prison and denied a visa to stay in Australia, was further punished rather than being held in custody for a legitimate reason.
There was no prospect of NZYQ being deported to another country, no legal basis for continuing to hold him in immigration detention, and he should be released.
“…The detention of the claimant could not reasonably be regarded as necessary for a legitimate and non-punitive purpose in circumstances where there was no realistic prospect that the claimant’s removal from Australia would become practicable in a reasonably foreseeable future,” said the court in a summary.
The ruling does not prevent immigration detainees who have been released from being deported or returned to custody for legitimate reasons.
Home Secretary Clare O’Neil said the government was considering preventive detention measures to tackle asylum seekers with serious criminal records.
The release of NZYQ into the community led to the release of the other prisoners, including men previously convicted of serious crimes such as murder and sexual offenses against children.
Although the detainees had already served prison sentences, growing outrage over a perceived danger to the community led the government to rush to pass emergency laws imposing strict visa conditions.
An Afghan man, pictured wearing a monitoring bracelet under his sock as he smoked behind his temporary shelter, said he had previously spent eight years in detention
Of the 141 asylum seekers released from immigration detention, 132 were electronically monitored, four were investigated by the AFP for non-compliance, and two cases involved health issues.
NZYQ arrived on Christmas Island by boat in September 2012 after fleeing a village in Myanmar where its Rohingya population faces persecution and denial of citizenship.
He spent 11 months in immigration detention before being granted a bridging visa and allowed to live with a relative in Sydney.
On January 8, 2015, NZYQ visited the home of a fellow Rohingya refugee who shared a bedroom with his 10-year-old son.
While the father was out of the bedroom, NZYQ entered, closed the door and anally raped the boy on his bed.
From outside the room, the father had heard NZYQ say, “I’ll give you money to do this,” and his son responded, “My father will hit me.”
NZYQ, who was arrested the next day, has no birth certificate but believes he was born between 1995 and 1997 and was therefore probably between 17 and 19 years old when he raped the boy.
Of the 141 asylum seekers released from immigration detention, 132 were electronically monitored and four were investigated by the AFP for non-compliance. (A released prisoner is pictured. He is not NZYQ)
Immigration authorities revoked NZYQ’s bridging visa a week after his arrest and a year later he pleaded guilty to one count of sexual intercourse with a person between 10 and 14 years old.
At a NSW District Court hearing, NZYQ told a judge he did not know what he had done was wrong or a crime because he had been regularly raped as a child by older boys in his village.
He claimed he asked the boy if they could have sex and he agreed.
“The perpetrator stated that he did not think what he was asking for was a bad thing or a crime and believed that men were having sex with each other, as happened in Myanmar,” the judge said.
“The perpetrator lacked insight into his actions and normalized them as culturally acceptable to excuse his abusive behavior. The perpetrator insisted that the complainant agreed and was willing to participate.”
The subject of the High Court case, known as NZYQ, was transferred to Villawood Detention Center after serving a minimum sentence of three years and four months in prison
The judge sentenced NZYQ, who was assessed as a medium to high risk of reoffending, to five years in prison with a non-parole period of three years and four months.
When NZYQ was released on parole in 2018, he was immediately taken into immigration detention and has been there ever since.
While NZYQ was in custody, he applied for a protection visa and upon expiry of his prison sentence in May 2018, he was detained as an unlawful non-citizen.
NZYQ has expressed remorse for his crime in recent years but has never entered a sex offender program despite being willing to do so, the court heard.
His protection visa application was rejected in July 2020 when authorities found NZYQ was “a danger to the Australian community”, and that decision was upheld by the Administrative Appeals Tribunal last March.
Chief Justice Stephen Gageler (above) was told that some detainees were considered less desirable by other countries because of their criminal records or the security risk they might pose
NZYQ then took its case to the High Court, which ruled in its favour.
The decision overturns a 2004 ruling in a case known as Al-Kateb that allowed the indefinite detention of non-citizens without visas even if they could not be deported.
In Al-Kateb, Judge Michael McHugh had noted: “A law requiring the detention of the alien derives its character from the purpose of the detention.”
“As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is not a criminal offence.”
The current Supreme Court, led by Chief Justice Stephen Gageler, disagreed.
“This court is unanimous in the conclusion that this is an incomplete and therefore incorrect representation of the applicable principle,” the court said in Tuesday’s statement of reasons.
The other Supreme Court judges are Michelle Gordon, James Edelman, Simon Steward, Jacqueline Gleeson, Jayne Jagot and Robert Beech-Jones.