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Seeking refuge, finding red tape

  • 05 July 2024
  Two recent judgments of the High Court regarding detention have proven to take up much space in the media. The judgements are relatively short and both were unanimous. Both have featured in scare campaigns devoid of any considered reflection of the complexities of refugee law — particularly in the area where refugee and protection visa law intersects and clashes with laws regarding character. The cases are known by acronyms, commonly given to cases involving refugee applicants as a way of providing some anonymity. In the first case, NZYQ in November 2023, the High Court held that it was unlawful and unconstitutional for the Executive to indefinitely detain people in immigration detention where there was no real prospect of removal from Australia becoming practicable in the foreseeable future. This includes those who are stateless, those found to be owed protection, and those who cannot be removed due to practical barriers (such as physical or mental unfitness, or where home countries refuse to cooperate).  

The ruling altered the commonly understood legal position on indefinite mandatory detention, and for the first time in over 20 years there seemed to be a glimmer of hope for the release of people in long-term immigration detention. However, the judgment left open several key legal and policy issues; it also generated a considerable amount of new legislation as the government tried to maintain some control over people who were suddenly released from detention as a result of the ruling.

In the second case, ASF17 v Commonwealth [2024], the High court dismissed the appeal brought by an Iranian man seeking release from immigration detention, where he has been held for nearly 10 years. The man’s application for a protection visa had been refused, but he feared return to Iran due to his bisexuality, and so refused to cooperate in the processes to enable his return. The same seven justices of the High Court that presided in NZYQ this time determined that ASF17’s detention did not exceed the constitutional limitations delineated in NZYQ because he had voluntarily refused to cooperate.

One effect of the ruling in the case of ASF17 was to reduce the number of potential cases impacted by NZYQ, which was no doubt met with relief by the government. However, the effects of the case are far from a relief for those now forced to decide between maintaining their claims while continuing in indefinite detention or being released from detention