By Martin Cole-
The Australian High Court has ruled that locking people in immigration detention indefinitely is illegal in a decision that overturns a 20-year-old precedent and could lead to the release of dozens of stateless detainees.
The successful challenge was brought by a plaintiff with the pseudonym NZYQ – whose visa was cancelled because he was convicted of child sex offences – after his legal team argued it was unconstitutional for the Commonwealth to continue to hold a person when there was no prospect of leaving Australia.
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At least 90 people currently in immigration detention could be released following the landmark ruling.
His barrister Craig Lenehan, SC, said his client was a Rohingyan man – a persecuted group in Myanmar – who was not a citizen of Myanmar “and he is unable to obtain that citizenship”.
“He is not a citizen of any other country and he has no travel document. He is a stateless person,” Lenehan told the court on Tuesday. The man had been detained since he was paroled in 2018, and several attempts were made to deport him.
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“The Department [of Home Affairs] has never successfully removed a person, who has been convicted of an offence involving sexual offending against a child, to a country other than a country which recognises the person as a citizen,” Lenehan said.
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The court made orders on Wednesday to the effect that the government could no longer continue to detain people if there was no prospect of deporting them in the foreseeable future.
The government is considering the judgment delivered by the High Court, a spokesman for Immigration Minister Andrew Giles said.
“Safety of the community remains the utmost priority of the government. Individuals released into the community from immigration detention may be subject to certain visa conditions.”
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