Farhad Bandesh is now a free man, but up until last week the 39-year-old was detained with about 60 others at the Mantra Hotel in Melbourne.
"Can you imagine, for 20 months they’re stuck in this hotel? They are suffering," he tells SBS News.
"And they spend six years in offshore detention centres. They need to be with us.”
Mr Bandesh - a Kurdish asylum seeker and musician - fled Iran in 2013. After arriving on Christmas Island he was detained on Manus Island in Papua New Guinea. He came to Australia last year with about 200 other refugees under the now-repealed Medevac legislation, before being detained at the hotel.
Mr Bandesh with the assistance of migration agent Noeline Harendran and lawyer Daniel Taylor, and was given a temporary bridging visa.
“Ecstatic ... is perhaps an understatement,” Ms Harendran said of the moment they got the news. “There was joy, tears and crying, it was one of the most wonderful feelings ... We saw hope and we saw people being reunited with their wives.”
The visas were granted following a major Federal Court ruling in September that used the centuries-old legal principle of habeas corpus, which Ms Harendran said impacted the applications the pair were preparing.
“I remember when that decision was published for that particular case, and that was the day we were doing submissions, so we had to radically change the submissions because we found a new authority,” she said.
The principle was then used to free another man in detention last week.
The crucial case and habeas corpus
In September, the case of AJL20 v The Commonwealth was decided in the Federal Court. It concerned Ahmed Mahmoud, a 29-year-old from Syria who came to Australia as a child and had been detained for six years.
For the first time in modern legal history, the court accepted habeas corpus - which is used to rule on whether the detention of a person by the state is unlawful - and used it to scrutinise the government’s decisions.
The judge found Mr Mahmoud was unlawfully detained because the Department of Home Affairs had failed to make arrangements for his deportation to Syria, which was the primary purpose of his period of detention.
Mr Mahmoud is now free and has been reunited with his partner Danice Frichitthavong.
“The communication with the government was non-existent,” Mr Mahmoud said about the ordeal, speaking from his home north of Melbourne.
Ahmed Mahmoud, left, was released from detention in September. Source: SBS News
“They wanted to send me back to a country I was born in, but I wasn’t raised there.”
“I actually asked to go back because I wanted it to end. They came back a month later and said ‘we can’t send you back … we have to wait until [the situation in] Syria gets better’. I said that could take 20 years.”
“It’s really good to have him home," Ms Frichitthavong said.
Mr Mahmoud’s lawyer Alison Battisson said the lack of progress for those in immigration detention is a symptom of the system and essentially “warehouses” detainees.
“I've discovered people through Freedom of Information that nothing has happened on their case for six years.”
Mr Mahmoud’s case was significant because it showed the courts could hold the Department of Home Affairs to account when it did not fulfil its obligations, she said.
“It forces the government to pursue the purpose of detention, so if you're going to remove someone then take the steps to remove them, provide them with some certainty,” she said.
Detainees inside the Mantra Hotel in Melbourne. Source: Supplied
“As of today, you have to pursue a purpose. And if you’re not [pursuing a purpose], you have to release.”
It forces the government to pursue the purpose of detention ... [if not,] you have to release. - Alison Battisson, lawyer
The Commonwealth Government is now appealing the decision at the request of the Attorney General and it will be heard in the High Court in March.
In the meantime, Ms Battisson said she predicts an increase in the cases of unlawfully detained and “warehoused” detainees being run under the principle of habeas corpus.
“We are aware of others who are doing the same, so you are starting to see this wave of habeas cases because the doorway has opened,” she said.
Father-of-seven walks free
Last Tuesday there was also another major decision in the Federal Court in the case of McHugh vs the Minister of Immigration.
It concerned Edward McHugh - a father-of-seven who has lived in Australia for more than 40 years believing he was an Australian citizen - who was detained and faced deportation after a conviction for aggravated assault and making a threat to kill.
This time, the full bench of the Federal Court issued a writ for the release of Mr McHugh under the same habeas corpus principle.
Edward McHugh was released from detention last week. Source: Supplied
Originally born in the Cook Islands before being adopted by a family in Queensland, Mr McHugh had an Australian birth certificate and an Australian passport and spent long periods living within Aboriginal communities.
The court ruled that the government failed to properly consider Mr McHugh’s claim to Aboriginality when deciding to detain him, therefore ruling his detention unlawful.
For the first time, the ruling also cemented a key principle of habeas corpus; that the onus of proof relies on the government to prove its detention of someone is lawful.
‘A blow to this very cruel system’
Greens leader Adam Bandt believes the recent court outcomes have put the spotlight on the government’s actions.
“The courts are starting to say, 'you can’t take someone who hasn’t done anything wrong and then lock them up and then do nothing with them',” he said.
“That could strike a blow to this very cruel system. It might not be a get out of jail free card for everyone but for many people stuck in this system, where the government is keeping them locked up for no reason, it might provide them with some avenue of hope.”
Seven detainees have so far been released after two more men were released from detention on Thursday. All had habeas corpus applications underway.
Demonstrators outside the Mantra Hotel in Melbourne. Source: Dom Vukovic/SBS News
“It’s a great relief for the people who have been released but there is still a large number of people still in detention, who ultimately need freedom,” lawyer Mr Taylor said.
Mr Bandesh says his campaign to free his friends will continue.
The Department of Home Affairs did not respond to a request for comment on this story.
With regards to the ruling in Mr McHugh’s case, a spokesperson for the department said it was considering the reasons for the court’s decision and the implications of the judgement.
