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Landmark Australian Ruling Rejects Indefinite Immigration Detention

Longstanding Practice to Deter Asylum Seekers Found Unlawful

Activists gather in Brisbane's ANZAC Square to protest the indefinite detention of refugees and asylum seekers in Australian-run and funded facilities on the mainland and on Papua New Guinea's Manus Island, January 19, 2022. © 2022 Joshua Prieto/SOPA Images/Sipa via AP Photo

 In a landmark decision on Wednesday, Australia’s high court ruled that indefinite immigration detention is unlawful. The decision overturns a 2004 ruling that held that noncitizens without visas could be detained indefinitely, so long as the government intended to remove them as soon as “reasonably practicable.”

The current case centered around a stateless Rohingya refugee facing the prospect of life in detention. The man was born in Myanmar and arrived in Australia by boat as a teenager in 2012. He had been granted a temporary visa, but it was canceled in 2015 when he was convicted of a criminal offense and imprisoned. Upon completion of his sentence in 2018, the government transferred him to immigration detention. The Australian government had rejected his visa application on the grounds he had committed a “serious crime and was a danger to the community.”

As an ethnic Rohingya, he is effectively denied citizenship under Myanmar’s 1982 Citizenship Law. Six other countries the Australian government had asked to resettle him also rejected him.

In the November 8 ruling, the high court determined that because there is no real prospect the man could be removed from Australia in the “reasonably foreseeable future,” his continued detention is unlawful, and he must be released immediately.

The ruling could trigger further immigration detention releases. There are reportedly 92 people in a similar positions who have largely been refused visas on character grounds. Most could not be deported to their home countries because they had a well-founded fear of persecution.

The Australian government has placed hundreds of noncitizens in immigration detention for years. The average detainee is held for 708 days and there are currently 124 people who have been detained for more than five years.

Successive Australian governments have used the detention of asylum seekers as a form of deterrence.

Since 1992, Australia has had a policy of mandatory detention of all asylum seekers arriving by boat. In 2013, the government sharpened this policy further to mandate sending those who arrive by boat to offshore detention or turning boats back to the country departed from.

Under international human rights law, immigration detention should be an exceptional measure of last resort, not a punishment.

The high court’s ruling provides real hope for those languishing in limbo for years in Australian immigration detention.

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