TRANSCRIPT
Immigration detention issues have plagued the Federal Government for the last four months.
In November 2023, the High Court ruled in favour of an immigration detainee known as NZYQ, which led to 151 detainees being released.
Now, another case could see more than 100 more people released.
Liberal Senator Jane Hume says this is becoming a theme for the current government.
“So another parliamentary week and another week of chaos and incompetence on immigration detention from Minister Giles and Minister O'Neill.”
The government is preparing for the ASF-17 case.
ASF-17 is an Iranian man who has refused to cooperate with authorities, claiming if he was deported, he would face persecution, and possibly the death penalty, in Iran.
Liberal MP Dan Tehan says the Prime Minister should step in to address these immigration detention issues.
“Minister Giles has been hopeless and hapless in handling this for over 12 months. we've said to the Prime Minister, it's time for him to step in and do something you have to remember this is about the government's number one priority, keeping the Australian community safe. Minister Giles has shown he's not up to it. The Prime Minister now needs to step in and act.”
But how did the government get into this situation?
It all started with the NZYQ case last year.
Professor of Constitutional Law with Monash University Luke Beck says the NZYQ case was about one man from Myanmar.
“That was about a particular individual from Myanmar and he was in Australia unlawfully, he was not entitled to be to be here, and he came to Australia because he was fearful of being persecuted by the Myanmar government. The reason he was not eligible for a visa he would ordinarily have been eligible for a refugee visa, is because he had committed certain very serious crimes which disqualified him from a visa system.”
Professor Beck says because he was not eligible for a visa, he needed to be deported, but that wasn't possible.
“Problem is the only place he could be sent back to his Myanmar and we can't send him back to Myanmar because that's where he would be persecuted. So this was a person it was impossible in effect to deport him, and so therefore, the government intended to lock him up in immigration detention indefinitely, effectively, forever. That case ended up going to the High Court, and the High Court said, you are not locking this person up for the purposes of deportation. You're just locking him up because we all acknowledge that it's not reasonably possible to deport this person. And you can't do that. You can only detain people for the purpose of facilitating that importation.”
Other people were in a similar situation, leading to 151 people being released.
This sparked concerns about community safety, and continued criticism of the government's handling of the released detainees, because the people involved were ineligible for a visa due to previous criminal convictions, but could not be deported due to safety concerns in their home countries.
Professor Beck says the ASF-17 case is slightly different.
“So what's different about this case is that it's not clear it's uncertain whether or not it's possible to deport this person, the government says it would be possible to deport this person if he cooperated with authorities, but the guy's choosing not to cooperate. The lawyers for the guy are arguing well, because without his cooperation, you can't deport him. Therefore, the detention is not for the purpose of facilitating his removal. So really, what this case is about is clarifying the parameters of NZYQ. How far does that go? What does it mean? 'No reasonable prospects of removing a person from the country' where what actually counts is no reasonable prospect. So this is a this is a follow up decision to clarify the scope of the main NZYQ decision.”
Professor Beck says these cases come down to a separation of powers.
“So this is all about separation of powers. These people are not criminals having been convicted of a crime. These are people who are in Australia, unlawfully and ought to be deported in accordance with migration laws, but for some reason, there's some delay or hold up in doing that. And you're allowed to detain people within our constitutional system for the purpose of facilitating their removal from the country. But no further. If you detain someone for a different purpose, what the government is doing then is really just trying to punish them for something. And that's not the job of the government. That's only a job that the courts can do. “
Professor Beck says the amount of attention may be unjustified.
“The amount of political attention this issue gets is probably disproportionate to the number of people who are affected by this. There's not that many people who are in this situation of being where it's impossible to deport them and then, of that very small number, the number who are you know, potentially dangerous because they have a serious criminal record is even smaller. It's just politically juicy.”
In a written statement, Minister for Home Affairs Andrew Giles said:
“The High Court, through a series of major decisions, has drawn new boundaries around the powers of the executive and the Parliament. And there continues to be uncertainty about exactly where those boundaries will ultimately be drawn when it comes to key aspects of migration law. Our focus at all times is on community safety. The Government must always act consistently with High Court decisions, and the Government is ready to respond to an evolving legal environment while continuing to ensure that there are layers of community protection in place. We have not sat idly by as the former government did - but have engaged legal and security experts through the Community Protection Board to ensure we are ready and able to respond."
