A refugee who raped a 10-year-old boy will be immediately released into the community following a Supreme Court ruling that indefinite immigration detention is unlawful.
A landmark ruling Wednesday could force the release of 92 other noncitizens in custody who cannot be deported to their home countries.
The court ruled in favor of a Rohingyan pedophile known only as NZYQ in the proceedings, who has been in custody since serving a prison sentence for child sexual abuse.
The Rohingyan people are a stateless ethnic group living in Myanmar, where they are persecuted, but NZYQ are not citizens of that country and cannot be deported there.
A refugee who raped a 10-year-old boy will be immediately released into the community after a High Court ruled that indefinite immigration detention is unlawful. The photo shows Supreme Court Chief Justice Stephen Gageler
NZYQ arrived in Australia by boat in 2012 and had his bridging visa revoked in 2015 when he pleaded guilty to sexual intercourse with a 10-year-old child.
He was transferred to an immigration detention center in May 2018 after serving a minimum sentence of three years and four months and being denied a ‘safe haven enterprise’ visa.
Until the Supreme Court’s ruling, NZYQ faced the prospect of spending the rest of his life in immigration detention.
He will now be released into the community and the Commonwealth will pay his legal costs.
The case is the first to be heard since Stephen Gageler, a former solicitor general who has served on the Supreme Court bench since 2012, was sworn in as chief justice on Monday.
Lawyers for NZYQ, who is in his late 20s, argued it was unconstitutional to keep someone in custody when there was no chance he would be deported.
His case was supported by the Human Rights Law Center and the Australian Human Rights Commission.
The court ruled in favor of a Rohingyan pedophile known only as NZYQ, who has been in custody since serving a prison sentence for child sex abuse.
Sanmati Verma, acting legal director of the Human Rights Law Centre, celebrated the ruling which will allow NZYQ to walk free.
“The indefinite detention ends today,” she said.
“This has life-changing consequences for people who have been locked up for years without knowing when, or even if, they will ever be released.
“The government must respect the constitutional limits of detention and act immediately to free people held indefinitely.”
Jane McAdam, director of the University of NSW’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,” Professor 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.”
NZYQ was transferred to an immigration detention center in May 2018 after serving a minimum sentence of three years and four months and being denied a visa. The photo shows Villawood detention center in Sydney’s west
Lawyer Craig Lenehan SC had submitted that NZYQ could not obtain Myanmar citizenship. Several attempts to deport his client had been unsuccessful.
“He is not a citizen of any other country and does not have a travel document,” Lenehan told the court on Tuesday.
“The Home Office has never successfully transferred a person convicted of an offense involving sexual offenses against a child to any country other than a country that recognizes the person as a citizen.”
Supreme Court Chief Justice Stephen Gageler had expressed concern about the lack of time limits surrounding indefinite detention.
Judge Gageler had been told that some detainees in other countries were considered less desirable because of their criminal records or the security risk they might pose.
“Another way of saying that – a less attractive way of saying it – is that they are being held in custody because of their character,” he replied.
The High Court ruled that NZYQ’s detention was unlawful because there was ‘no realistic prospect that his removal from Australia would become practicable in the reasonably foreseeable future’.
The decision overturns a 2004 ruling that allowed the indefinite detention of non-citizens without visas even if they could not be deported.
A spokesman for Immigration Minister Andrew Giles said the government was considering the verdict.
“The safety of the community remains the government’s top priority,” the spokesperson said.
“Individuals released from immigration detention into the community may be subject to certain visa conditions.”
Shadow Attorney General Michaelia Cash called on the government to “explore all available options to reduce the risk posed by problematic individuals,” according to The Guardian.
The court will publish its judgment in the coming months.