Despite High Court win for Ned Kelly Emeralds, the court action continues

Ned Kelly Emeralds, an Iranian man who has been detained for over a decade while seeking asylum, is in the Federal Court of Australia for a hearing to challenge his ongoing detention and apply for a release order.

Ned arrived in Australia by boat in 2013 and has been detained since that time. In 2021, the Federal Court ruled that Ned could be removed to Nauru and was to be released to live with his friends in Perth, until the Commonwealth resolved his status. At the last minute, former Minister Karen Andrews exercised her personal powers to prevent him from being removed from Australia or housed with his friends. The government also then appealed against the judgment that was rendered moot by the Minister’s actions.

Last week, Ned won his appeal in the High Court of Australia, leaving open the possibility that courts could end indefinite detention by making ‘home detention’ orders. But the Court did not resolve whether ‘home detention’ orders could be made in cases such as Ned’s. That question will be examined in this challenge. The Court will also hear what steps, if any, the Albanese government has taken to resolve Ned’s status or free him from detention.

Over the weekend, it was revealed that a review by Robert Cornall in March 2020, found the Australian Government had “no effective strategy” to move people out of immigration detention and into the community.

Despite the High Court appeal win and today’s hearing, Ned will remain in immigration detention – now into his eleventh year. He is represented by the Human Rights Law Centre.

Ned Kelly Emeralds said: “The Australian Government has kept me in a cage and denied release for over ten years, but I continue to resist and stand up so I might one day live a life in freedom. My case shows the unacceptable powers that Ministers have over the hopes, dreams and possibilities for our lives – if the Minister wants it, you can be locked up for a decade, sent to Nauru or given a permanent visa. But everyone deserves an equal chance to make a life in freedom.”

Sanmati Verma, Managing Lawyer at the Human Rights Law Centre, said:

“Ned’s case shows that the crisis in immigration detention is not just the product of a particular government or a particular time – it is the outcome of decades of deliberate choices. Despite its commitments, this government has not taken serious steps to end the arbitrary and indefinite detention of people across the country. There are 135 people, just like Ned, who have been locked away for five years or more. It should not be possible for governments to lock people up and throw away the key – but that is precisely the system we have.”

Background

Ned arrived in Australia by boat from Iran in 2013 and has been detained since that time. Last year, the Federal Court found that, because of the date of his arrival, Ned should have been taken to a Regional Processing Country. Instead, he was shipped around different detention centres in Australia while his Protection visa application was processed.

In 2016, Ned was found to be owed protection by an officer of the Department of Home Affairs. But, instead of issuing him with a visa, a second officer refused his application in 2018. Since then, Ned has been navigating the broken “fast track” protection process.

The Federal Court ordered that Ned be released from Perth detention centre and transferred to the home of friends in Perth, until his immigration status was resolved. But then Minister for Home Affairs Karen Andrews exercised her personal powers to prevent Ned’s removal to a Regional Processing Country, as a result of which the Court’s orders could not come into effect.

Ned’s hearing is scheduled for 11.30AM 12 September 2023. To watch the live-streamed hearing, contact: associate.kennettj@fedcourt.gov.au

Media Contact:
Thomas Feng
Media and Communications Manager
Human Rights Law Centre
0431 285 275
thomas.feng@hrlc.org.au