Court tick on detention 'extraordinary'

Luke CostinAAP
The High Court has entrenched indefinite detention of non-citizens, refugee advocates say.
Camera IconThe High Court has entrenched indefinite detention of non-citizens, refugee advocates say. Credit: AAP

The High Court has entrenched indefinite detention of non-citizens by ruling the release of a detainee awaiting deportation was wrong, refugee advocates say.

By a 4-3 majority, the country's highest court on Wednesday ruled a judge wrongly found a Syrian asylum seeker's detention unlawful.

The primary judge had reasoned it was unlawful as Home Affairs had failed its duty to deport the man as soon as reasonably practicable.

While conceding its officers hadn't fulfilled their duty on deportation, the federal government said the man's detention was authorised and required by the Migration Act.

The High Court majority pointed to an 18-year-old decision that detention was not conditioned on the actual deportation of an unlawful non-citizen as soon as reasonably practicable.

The appropriate remedy in such a case was to order Home Affairs to comply with its duties, it said.

"Such an order would give effect to the statutory scheme, whereas an order for the release of an unlawful non-citizen into the community would undermine it," Chief Justice Susan Kiefel and Justices Stephen Gageler, Patrick Keane and Simon Harry Peter Steward said.

The man, known to the court as AJL20, arrived on a child visa in 2005.

He was detained in 2014 after his visa was cancelled on character grounds.

After repeated applications for a visa, his lawyers filed a habeas corpus case in May 2020.

The Federal Court in September 2020 ordered the man be released and compensated.

The High Court's finding was disappointing but not surprising, AJL20's lawyer said.

"What it does say is you can't get habeas when you're locked up (and a non-citizen)," Human Rights For All lawyer Alison Battisson told AAP.

"(Habeus) has been around for a millennium."

More than 100 detainees had cases before the courts and had been looking to rely on the initial AJL20 decision, she said.

It's truly an extraordinary piece of reasoning and it's disappointing four of the seven highest justices in the land think denying habeas as a remedy for detention is appropriate," Ms Battisson said.

The Refugee Action Coalition said the decision entrenched indefinite detention in Australian law.

"It makes a mockery of 'the rule of law' when there is one law for citizens and another applies to asylum seekers and refugees," RAC spokesman Ian Rintoul said in a statement.

High Court Justices James Edelman, Michelle Gordon and Jacqueline Gleeson - three of the court's four most recent appointees - found the government's appeal should have been dismissed.

The latter two justices said the man's release "from that unlawful detention" wouldn't have stopped Home Affairs from legally re-detaining him.

The offices of Immigration Minister Alex Hawke and Home Affairs Minister Karen Andrews have been contacted for comment.

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