Right now, the federal government is keeping more than 100 “non-citizens” in immigration detention and they have been there for more than five years.
These asylum seekers, refugees and former residents from overseas with a protected status are being forcibly detained because the government refuses to release them and it cannot deport them back to their country of origin, as that is against international law.
But new amendments to the Migration Act now allow the federal government to lock people in immigration detention indefinitely. Refugee advocates say that the changes have been made following court decisions forcing the government to release asylum seekers.
The Federal Court last year ordered the release of a detainee who had been held for six years. The 29-year-old Syrian man has lived in Australia since 1996, but when he failed the character test contained in section 501 of the Migration Act 1958, his visa was cancelled.
The man’s lawyer, Alison Battisson from Human Rights for All, successfully argued in court that under the principle of habeas corpus there needed to be a reason for detaining a person and, as her client wasn’t being held for a prompt return to Syria, he therefore had to be released.
The ruling gave hope to others in detention in limbo, as the legal loophole provided a potent way out.
However, under the new Home Affairs Minister Karen Andrews, that ray of light shining through the migration law patchwork has been plugged.
The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 was passed on May 13 with bipartisan support.
Immigration minister Alex Hawke told parliament that the amendments were brought to ensure that refugees are not returned back to harm in their homelands. The major change was to add clauses to section 197C of the Act, so that the government is not required to send a non-citizen in detention back to their country of origin if the move poses an imminent danger to the person.
“On the face of it, [the government] argues that this [amendment] simply enacts into law their international obligation not to refoul individuals,” National Justice Project director George Newhouse told Green Left. “That explanation hides their real motives,” he added.
Under the United Nations 1951 Refugee Convention, to which Australia is a signatory, the government cannot send refugees back to the country from which they fled when it would entail a genuine risk of irreparable harm. This is known as the principle of non-refoulement.
Newhouse added that rather than concerns about sending people back to their country of origin, the government’s real issue was trying to avoid the “embarrassment” of having to release more long-term detainees into the community, as in the case of the Syrian man.
“The implication [of the amendment] is they will be able to hold immigration detainees that can’t be refouled indefinitely in detention,” Newhouse said.
“There are many ways that the government could have upheld their non-refoulement obligations without enshrining indefinite detention,” Refugee Action Coalition spokesperson Ian Rintoul told Green Left.
“The length of time that people are being held has increased dramatically over the last few years [and] that’s going to get worse,” he said.
“For many people who are presently in detention, they’ve effectively been handed a life sentence.”
The Human Rights Law Centre said on May 13 that in mid-2013, the average time a person would spend in immigration detention was less than 100 days. Fast-forward to last year and the average time had risen to more than 600 days in these prisons-by-another-name.
These days, the Act’s character test requires that non-citizen residents who have been sentenced to at least 12 month’s prison are automatically deported after serving their time.
Individuals who cannot be sent back to their country of origin can now be detained indefinitely.
The other cohorts affected by this change are refugees and asylum seekers who are not allowed to live in the community but cannot be sent back to danger.
Currently, a Catholic Sinhalese man from Sri Lanka who fled after being kidnapped for political reasons has been in detention for 11 years.
“The new amendments mean that what looked like an opening — a legal measure to get people out — has now been closed off by the government,” Rintoul said.
The other major change to the Act is a new section, 197D, that Newhouse explained allows the minister to revoke the protection status of an individual who is being detained, but who cannot be deported due to non-refoulement. “Essentially, the minister now has the power to revoke refugee status.
“This government believes it has the power to detain anyone without a visa in this country”, Newhouse continued, adding, “But that doesn’t apply to two classes of people”.
The first class who cannot be detained or deported are First Nations people born overseas. The High Court found last year that constitutional powers relating to aliens do not apply to people of Aboriginal heritage and, therefore, they can’t be deported as non-citizens.
The second class of people are protected non-citizens, as in the case of the Syrian man who cannot be removed because of non-refoulement.
However, now that the federal government has brought in laws to detain these people indefinitely, there is also the potential to overturn their refugee status completely.
Slow torture continues
Newhouse considers it unlikely the new laws will affect the Medevac refugees who remain in detention. These are the people who were detained long-term on Manus Island and Nauru who were brought to Australia in 2019 to receive medical treatment under the now-revoked Medevac laws.
There were hopes that, like the Syrian man, these people might be able to gain release via the now closed legal loophole. Between December and February, 100 Medevac refugees were released into the community.
Right now, however, around 60 of these refugees are still locked up in hotels and immigration facilities.
Rintoul said in January the Morrison government looked like it would release all the Medevac detainees. But since some took legal action for their release, the government has opted for an even more draconian position.
“The government doesn’t want to be seen to be backing down in the face of legal action. It’s fighting hard to defend the position that it has the legal right to hold the Medevac refugees,” Rintoul said.
“The government is determined to make the point that it does have the power to hold people, and if challenged it will dig in its heels.”
[Paul Gregoire is a Sydney-based journalist who writes for Sydney Criminal Lawyers.]