The High Court has ruled against extending a contentious immigration detention decision, prompting criticism from advocates for refugees. Two asylum seekers from Poland and Vietnam asserted that their detention while their protection visa applications were pending was unlawful. Both individuals were detained after completing prison sentences for drug-related offences in Australia.
The Administrative Appeals Tribunal had earlier determined that deporting them could expose them to significant risks, including imprisonment or harmful treatment in their home countries. The Polish man faced potential imprisonment, while the Vietnamese man risked the death penalty if returned. They argued that this meant they could not be forcibly removed from Australia, rendering their subsequent detention unconstitutional.
Their case relied heavily on the landmark 2023 NZYQ ruling, which deemed indefinite immigration detention unlawful without a reasonable prospect of imminent deportation. However, the High Court clarified that this ruling did not apply to cases where the detention of an unlawful non-citizen was deemed necessary for visa processing or deportation. The judges concluded that their detention was mandatory while their visa applications were being processed.
Catherine Holbeche, principal solicitor at the Asylum Seeker Resource Centre, argued that the High Court failed to appreciate the human impact of its decision, particularly concerning current and former detainees. She highlighted that prolonged detention for asylum seekers often re-traumatises individuals who have fled situations involving deprivation of rights and liberty.
This decision comes amidst growing scrutiny of Australia’s immigration detention policies, especially following the NZYQ ruling, which resulted in the release of 150 immigration detainees with criminal records. This group comprised individuals with serious convictions, including violent crimes, as well as those charged with lesser offences. Following their release, some were re-arrested, generating public and political outrage.
While the two asylum seekers in question will not be part of the group released under the recent ruling, they were ultimately freed in 2024. For those seeking support, assistance is available through Lifeline at 13 11 14 or Beyond Blue at 1300 22 4636.