A lifetime of immigration detention can never be Australia’s punishment for simply not holding a valid visa
OPINION | Migration Justice
The high court’s decision on indefinite detention will result in more litigation – and more time lost
By Sanmati Verma Legal Director
Human Rights Law Centre
Legal language can conceal what it seeks to describe. It can be an emollient, glossing over the violent specificity of things.
Consider “indefinite detention”. It is almost benign in its imprecision, evoking a state of affairs that could be brought to an end at any moment.
For nearly 20 years, the term was threaded through legal textbooks and judgments and has inoculated us against what it truly means to lock people up without a fixed endpoint – potentially for the rest of their lives.
The law allowed people to be detained forever, simply because they did not hold a visa. Not because they had been convicted of a crime or because they were deemed a risk to the community – but because they did not hold a valid visa.
The law allowed people to be locked up for the purpose of deportation even if there was no country to deport them to. It allowed people to be warehoused and ignored if they protested for their liberty, became sick or aged. Behrouz Boochani calls this “the weaponisation of time”, whereby the passage of time is used to negate any hope for the future.
The results of these legal arrangements over two decades were obvious. Detention centres swelled across the country and became brutal places rife with abuse and medical neglect.
Between 2014 and 2024, 29 people died in detention. By 2023, people were spending the longest periods in recorded history in detention – on average, 806 days, or over two years. It was commonplace for people to be detained for a decade or more, without end in sight.
Consider that: a decade of life. How much life passes between, say, the ages of eight and 18?
That is how long ASF17 – the man at the centre of the most recent high court challenge to indefinite detention – has been detained.
Earlier today, the high court ruled that the continued detention of ASF17 was lawful because it could not say there was “no real prospect” of his removal from Australia. That is because ASF17 is from Iran – a country that notoriously refuses to receive its own citizens returned against their will.
Because ASF17 did not submit to the necessary bureaucratic processes to voluntarily facilitate his own removal, out of fear of the Iranian authorities, the court found that the possibility of his removal from Australia could not be ruled out.
That assessment might well have been different, the court observed, if ASF17 suffered from a medical condition that made it impossible for him to cooperate with his removal.
The result of the judgment will be more confusion, more litigation, and more time lost.
People in detention will be put to proof, one by one, about the arcane practices of their countries of citizenship or whether their mental and physical health has deteriorated to a point that they cannot volunteer for their own removal.
Their detention will continue as the government continues to drag out arduous, convoluted litigation over months, if not years. It will be prolonged further still as the government tries in vain to apply diplomatic pressure to Iran or to punish non-cooperation with jail time.
The government knows very well that both tactics are likely to be futile. In recent evidence to the Senate, the Department of Home Affairs struggled to identify any influence on rogue states of the various travel bans introduced by Donald Trump. And it is obvious that people in fear for their lives will not be persuaded to accept deportation by the threat of further time in custody – particularly when they have already been detained for years.
These are the results of leaving such significant decisions – about whether a person should be detained, or permitted to lead a normal life with their family – in the hands of governments.
Instead of increasingly desperate legal workarounds, the Albanese government must confront the truth at the heart of this sorry legal saga. Freedom cannot be determined solely by nationality or visa status. Whatever the reason that a person cannot be deported, a lifetime of detention can never be the answer.
Sanmati Verma is Legal Director of the Migration Justice team at the Human Rights Law Centre. You can learn more about the team's work here.