The High Court of Australia has recently ruled that indefinite detention is illegal, leading to the release of numerous individuals from immigration detention centers. In the past, Australian governments had arbitrarily detained asylum seekers and refugees since 2004, as it was considered legal according to domestic law. However, this practice has now changed following the court's decision. As a result, 80 people, including refugees and others detained for various reasons, were immediately released into the community, with at least 92 more individuals eligible for release. It is estimated that around 300 more cases may be affected by this landmark ruling. This decision is expected to have a transformative impact on those who have been detained for extended periods without any certainty of release, allowing them the opportunity to regain their freedom and reconnect with their families and communities.
Australia accepts approximately 13,500 individuals each year for resettlement through the UN refugee program. However, those who arrive through other means, such as by boat from Indonesia, are held in prison-like facilities. Since 2013, Australia has implemented Operation Sovereign Borders, described as a military-led border security operation. The harsh offshore processing centers are part of this policy, which aims to assess refugee status and potentially grant temporary visas. Nevertheless, organizations like Human Rights Watch and Amnesty International argue that this policy violates international law, including the UN Refugee Convention and the Convention Against Torture, as it allows for the arbitrary detention of refugees and treats seeking asylum as illegal.
Critics, including an author and former detainee, argue that the policy aims to create incredibly onerous conditions to deter potential refugees from seeking asylum in Australia. On average, refugees have been detained for approximately 708 days, either in Australian mainland or remote offshore detention facilities. Josephine Langbien, a senior lawyer at the Human Rights Law Centre, revealed earlier this year that the longest period of detention on record was nearly 16 years. In comparison, the United States detains refugees for an average of 55 days, while Canada holds them for just two weeks before making a decision on their status.
The plaintiff in the High Court case was a Rohingya man using the pseudonym NZYQ, who had been detained indefinitely due to a lack of deportation options. As a member of the Rohingya minority, who have faced persecution in Myanmar and were stripped of their citizenship in the 1980s, NZYQ could not return to his home country. It was revealed that NZYQ had a controversial background, including a previous conviction for child sex offenses, serving time in jail, and having his visa revoked. Normally, a non-Australian would be deported after completing their sentence for such serious crimes. However, since NZYQ did not have citizenship at the time of his release on parole in 2018, the Australian government could not deport him. Consequently, NZYQ remained in detention with no realistic chance of removal, prompting the court to rule that his indefinite detention was unconstitutional. It is important to note that although NZYQ committed a serious offense, he had served his sentence and should be treated like any other offender under domestic law, leading to his release into the community.In a recent statement, she stresses that immigration detention should not be treated as prison and emphasizes the importance of separating immigration law from criminal law. She argues that using immigration detention as a means of punishment or extending sentences is unconstitutional and goes against the core principles of the Australian government. This comes in the wake of a significant decision by the High Court that overturned a previous ruling, known as Al Kateb, which justified the indefinite detention of stateless individuals. This landmark decision will now have far-reaching implications for many others who, for various reasons, find themselves unable to return to their home countries.
While the release of detainees has been met with celebration, it has also brought forth new challenges for those who have endured years of uncertainty and imprisonment. Despite a sense of joy among those who have been freed, there is also a palpable fear and concern about losing their newfound freedom. Refugees who are released into the community often face restrictions on their employment and are subjected to regular reviews. The visas issued to these individuals come with numerous conditions, including reporting obligations and behavioral limitations. It is of utmost importance for the government to extend proper support and assistance to ensure a smooth transition for these individuals into the community.
The prolonged detention has had devastating consequences, leading to mental health issues and severely limiting life opportunities for those affected. The release of detainees, who have been unlawfully held for years, raises important questions about future implications. However, when questioned about this matter, the Minister for Immigration declined to comment and instead focused on preserving community safety. Notably, among the individuals recently released is Sirul Azhar Umar, who was involved in a high-profile murder case in Malaysia. Seeking refuge in Australia whilst appealing his case, he, remarkably, was not returned to Malaysia due to Australia's policy against deporting individuals to countries that have the death penalty in place.The Department of Home Affairs, in its response to Al Jazeera, asserts that the complete decision has not yet been made public. Moreover, they decline to offer any statements concerning potential legislative amendments to address the loophole associated with Operation Sovereign Borders.
Despite receiving inquiries from Al Jazeera, the Department of Home Affairs refrains from disclosing the complete decision's release date. They also decline to comment on any possible modifications to the current legislation. These changes are necessary to rectify the created loophole in Operation Sovereign Borders.
It is worth noting that the Department of Home Affairs has not yet made the decision public in response to Al Jazeera's inquiries. Furthermore, they have chosen not to provide any commentary regarding the potential modification of legislation to address the loophole prevailing in Operation Sovereign Borders.