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Australia’s High Court finds Indefinite Immigration Detention is Unlawful and Unconstitutional

Last month, Australia’s High Court determined that keeping migrants in immigration detention for an indefinite period of time custody was unlawful and unconstitutional.

This is a dramatic shift in the High Court’s interpretation and view of the migrant’s plight. Not twenty years ago, the High Court had determined that indefinite was constitutional in the case of Al-Kateb v Godwin. But as the judges in 2023 have come to the opposite conclusion.

Who does the case effect?

The majority of people who are affected by this case are refugees whom Australian has non-refoulement obligations to not send them back to their home country. Most of these migrants have fled their country and if they return would be killed, enslaved, or harmed. Australia does not return migrants to countries where this persecution fear is well-founded.

If a migrant does not hold a valid visa for Australia, they cannot be allowed out in the community. This case effects migrants who have lost their visa but cannot be returned to their home country because of the non-refoulement obligations.

This led to the indefinite detention scenarios which the High Court reviewed. These migrants have no valid visa but have no country where they can be sent to.

How do migrants wind up in indefinite detention?

When a migrant commits serious crimes in Australia, this can trigger a loss of their visa. Migrants who commit serious crimes are treated first by our criminal justice system and punished for their crimes according to our criminal laws. They go to gaol and serve the sentence for their crime.

Before the migrant is released, they will be informed that their visa has been revoked and they will have an opportunity to either request a protection visa or appeal the revocation decision (or both). If a new visa has not been granted by the time the migrant is released from their prison sentence, they are moved into a migrant detention centre.

Because they are not lawfully allowed to be in Australia, they must remain in the detention centre until they are returned to their home country or granted a protection visa. If a migrant establishes a well-founded fear of persecution as outlined above, they cannot be returned to their home country and do not have a visa to remain in Australia. The only other option has been to keep them in immigrant detention, which no known date of release.

Why is this issue controversial?

Many of the migrants who are in indefinite detention have committed ‘serious crimes’ and there are concerns of their release into the community. The High Court Case decided this week, NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor, was particularly serious as the migrant had plead guilty to a sexual offence against a child. A lot of media attention has surrounded these circumstances. In the week following this case, new laws were announced to impose serious restrictions on those affected by the decision, including curfew restrictions and ankle monitor requirements.

The High Court found that keeping persons in migration detention was “not reasonably capable of being seen as necessary for a legitimate and non-punitive purpose in circumstances where there was no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future.” Speaking plainly, the extended migration detention was punitive. As serious as the crimes that some of the migrants have committed are, it is the criminal system who hands out punishment and justice, not the migration system. The High Court has passed the decision back to the criminal courts to keep dangerous people out of our communities and requires the criminal judges to give the appropriate sentences for crimes.

What comes next?

About 83 migrants have been released since the decision was announced by the High Court. Parliament continues to enact restrictions on this group and may make other changes as they did after the last High Court case affecting migration detention.

This case does not affect all migrants in detention and there are many still awaiting future decisions on their individual cases. If you or a family member need immigration assistance, contact us today.