Peter Dutton has called on Immigration Minister Andrew Giles to resign as the fallout from the High Court’s indefinite detention ruling continues with another release ordered by the Federal Court.
On Thursday, the Federal Court ordered the government to immediately release Iranian asylum seeker Ned Kelly Emeralds, who has spent a decade in immigration detention – the first release ordered since the High Court’s new precedent that indefinite immigration detention is unlawful.
In what he had previously described as a ‘particularly disturbing case’, Mr Justice Geoffrey Kennett found that Emeralds’ detention was unlawful because there was ‘no real prospect’ of his deportation ‘becoming practicable in the reasonably foreseeable future’.
The ruling brings to at least 142 the number of people released as a result of the High Court’s landmark NZYQ decision in early November.
The bitter political fallout from that decision continued in question time on Thursday, with Opposition Leader Dutton attempting to suspend standing orders to call on Giles to resign over the government’s handling of the NZYQ case.
Earlier in question time, Giles dodged a question about why the government conceded on 30 May that it was impossible to deport NZYQ before attempts to deport him to six countries. Giles said only that the government had “vigorously defended” the case.
Dutton cited the 30 May concession in a list of what he said were Labor’s failings, arguing that the fact was agreed “before all resettlement options had been exhausted and led directly to the loss of the case”.
Dutton also falsely claimed that the High Court’s reasons “made it clear that it was only required to release the NZYQ applicant”. This failed to recognise that the new constitutional limit on indefinite detention applied beyond the NZYQ claimant.
Giles responded that the decision ‘required the release of people in similar circumstances’. He said questions suggesting otherwise were ‘extraordinary’ and quoted former Liberal Attorney-General George Brandis to suggest the opposition was attacking the rule of law.
Earlier on Thursday, shadow home affairs minister James Paterson argued that not all those released were in the same circumstances, suggesting that people convicted of lesser offences may have been able to resettle and therefore did not need to be released.
The outcome of the Emeralds case could lead to a re-evaluation of the legality of detaining a person in difficult cases where deportation is not possible but the government believes a lack of cooperation with the authorities by the detained non-citizen is to blame.
Emerald arrived in Australia by boat in 2013 and has been in detention ever since. According to the Human Rights Law Centre, which is representing him, Emeralds was detained while his protection visa application was being processed; he has not had his visa cancelled and has not been convicted of a crime.
In 2016, Emeralds was found to be in need of protection by a Home Office officer. A second officer refused his protection visa application in 2018, on the basis that he did not have a well-founded fear of returning to Iran.
During the hearing on 23 November, Kennett noted that “a decade is an extraordinary amount of time to spend in detention”, despite the fact that he had a visa application on foot. The application itself had taken an “extraordinarily long time to resolve”, he said. “It’s a particularly disturbing case.”
Matthew Albert, Emerald’s solicitor, told the hearing that his client had tried to kill himself in detention and vowed: “I will not go back to be tortured and killed by a regime I despise.” In an incident in 2015, Emeralds injured his neck, leaving him mute.
Albert argued that there was no real prospect of Emerald being deported: first, because he had no travel document after his Iranian passport expired; and second, because Iran has a policy of not accepting involuntary returns, even of its citizens.
Greg Johnson, counsel for the Commonwealth, said Emeralds was trying to “ride on the coat-tails of the recent High Court order”.
Johnson argued that unlike NZYQ, where the impossibility of deportation was agreed by the parties, in Emeralds’ case it was in dispute because he could be deported if he met Iranian officials or gave them information to obtain a new travel document.
Emeralds had refused to co-operate with the Iranian authorities because his parents and siblings were still in Iran and would be at risk if the authorities knew he had sought asylum, Johnson said.
Kennett said Emeralds appeared to have an “entrenched state of mind” and the evidence suggested his “intransigence” was “entirely genuine”.
Emeralds said: “Tonight I will sleep in my own bed. When I wake up tomorrow, I will be able to choose where I go, what I do, who I see. This is basic freedom, something you and I share. I haven’t had that for over 10 years.
“Over 10 years ago I came to Australia to seek protection from torture in my country, and instead I was tortured. I had no way to escape. I could not go home and the government chose not to release me. No one should have to choose between their life and their freedom. What happened to me should not have happened, and it should not happen to anyone else.
