Indefinite detention of immigrants is illegal, Supreme Court rules that 90 asylum seekers can be released

Indefinite detention of immigrants is unlawful, the High Court has ruled, overturning a controversial decision that has guided Australia’s asylum seeker policy for the past two decades.

When a majority of justices agreed, the court overturned a 2004 decision that ruled that unsuccessful asylum seekers who could not be removed to another country could lawfully be held in immigration detention indefinitely.

The Supreme Court made the ruling on Wednesday after lawyers for a detained Rohingya man from Myanmar, who goes by the pseudonym NZYQ, argued that the 20-year-old ruling had been wrongly decided.

Chief Justice Stephen Gageler expressed concern about the lack of time limits surrounding indefinite detention.

“The problem here lies in the scenario where what the provision is intended to do simply will not, in fact, happen, at least not in the foreseeable future,” he told the Supreme Court.

When told that some people are less desirable to other countries because of their record or the security risk they may pose, the Chief Justice noted: “Another way of saying that – a less attractive way of saying it – is that they are being held in custody. because of their character’.

The original, now overturned decision involved stateless Palestinian Ahmed Ali Al-Kateb and Iraqi national Abbas Mohammad Hasan Al Khafaji, both of whom arrived in 2000.

The duo had applied for Australian temporary protection visas but were rejected and asked to return to the Middle East.

However, the government could not arrange for another country to take them over.

The two men had already been in the community for 12 months at the time, but the court order determined that they should be returned to detention.

Mr Al-Kateb and Mr Al Khafaji were quickly granted bridging visas, but others have not been so lucky since.

According to the Human Rights Law Centre, the government is holding people for 708 days, but there are currently 124 people who have been in custody for more than five years, many of whom are stateless or owed protection by Australia.

With this decision, approximately 90 people held in a similar detention situation to the Rohingya man could soon be released.

Jane McAdam AO, director of UNSW’s Kaldor Center for International Refugee Law, called Wednesday’s decision an “important and long overdue victory for human rights.”

“Indefinite detention has always been arbitrary and unlawful under international law,” Prof. McAdam said.

‘Australia’s approach to detention has been completely different from that of other democratic countries for decades.

“This will have to change now.”

The court will publish its judgment in the coming months.