High Court challenge to Albanese Government's ongoing detention regime begins

The High Court will today hear a challenge to the Australian Government’s continued detention of people who cannot be forced to return to their country of citizenship. The Human Rights Law Centre is seeking to intervene in the hearing on behalf of AZC20 – an Iranian man who was detained for over a decade while seeking asylum.

The Albanese Government is currently holding up to 200 people in indefinite immigration detention because they have not voluntarily assisted with their own deportation.

Indefinite detention has destroyed people’s lives, causing lifelong physical and psychological harm, and separated families. It is the cruel heart of our migration system, and a reminder to every migrant and refugee in Australia of the fate that might await them.

In November 2023, the High Court ruled that the Australian Government’s use of indefinite detention was unlawful and unconstitutional, where there was no real prospect that a person’s removal from Australia would be practicable in the reasonably foreseeable future.

In ASF17 v Commonwealth, the High Court will consider whether the same limitation applies to people who cannot be deported because their country of origin refuses to accept the forced return of its citizens, and where the person is unable or unwilling to assist in their own deportation - either because they fear harm, or because there are medical or other barriers to their removal.   

The Human Rights Law Centre is representing AZC20 and will argue that the ruling in NZYQ means that indefinite detention is unlawful under any circumstances. The Centre will further argue that a person’s reasons for refusing to consent to their removal must be considered in determining whether their detention is lawful. It will argue that detention is not lawful when the primary barrier to the removal of people like ASF17 and AZC20 is another country’s refusal to accept the forced return of its citizens.

The hearing comes as the Government attempts to rush through unprecedented new legislation that would criminalise non-cooperation with removal, making it punishable with a five-year term of imprisonment.

Sanmati Verma, Legal Director at the Human Rights Law Centre, said:  

“Despite being locked up for a decade, our client has built a community in Australia. He has a circle of friends rallied around him. He just found a house and got a job. He is trying to rebuild his life from scratch. He should have the opportunity to do so without the threat of being thrown in detention again.  He should have the opportunity to do so without the threat of being re-detained.   

“Whatever the reason that a person cannot be removed from Australia, indefinite immigration detention can never be the answer. People in detention are deprived of their freedom, separated from their families and communities, and routinely subjected to violence, isolation and deplorable conditions. On top of this, people are faced with the psychological burden of not knowing when, or even if, they will ever get out.

“Other countries around the world have recognised there must be limits on detention in all circumstances. Yet our government is still trying to use indefinite detention to coerce people into returning to danger.  Instead of trying to find legal workarounds to keep people locked up, the Australian Government should support people to rebuild their lives in freedom and safety.”

Background

A number of people who remain in long-term detention - including people from Afghanistan, Sudan and Iran - arrived in Australia more than a decade ago and had their protection claims refused under the flawed ‘fast track’ assessment process. They have been refused access to a fair and independent refugee status assessment.

In response to domestic and international criticism, the Albanese government has abolished the ‘fast track’ process with effect from 1 July 2024, but has done nothing to assist people unfairly refused under it. 

Decades of extensive evidence demonstrate the medical and psychological harms of prolonged immigration detention and the widespread human rights abuses occurring in Australian detention centres. In other jurisdictions such as the European Union and United Kingdom, there are limits on the length of detention including in situations where a person has not consented to their removal.

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