More than 350 illegal non-citizens held in indefinite detention could be awarded millions of dollars in compensation after the High Court ruled against the Australian government.
The decision is another blow to the Albany government, as requiring NZYQ group members to wear ankle monitoring bracelets and obey a curfew was ruled unconstitutional earlier this year.
Human rights lawyers and refugee advocacy groups have hailed the “predictable” decision as an “important outcome”.
On Wednesday, the full bench of the High Court ruled unanimously against the federal government’s attempt to defend against a damages claim brought by Safwat Abdel-Hadi, an Austrian citizen, potentially paving the way for hundreds more cases.
The Federal Circuit Court found in June 2024 that Abdel-Hadi was unlawfully held in immigration detention for a period of 18 months between 28 July 2022 and 13 February 2024 because there was “no realistic prospect” of his removal due to his health conditions.
The businessman’s lawyers had argued that he should not have been detained by authorities, using precedent established in Al-Kateab’s 2004 High Court case, which allowed non-citizens without valid visas to be detained indefinitely, even in circumstances where it was impossible to deport them.
This decision was overturned in November 2023 in a landmark judgment brought by a stateless Rohingya man, known as NZYQ, triggering the release of hundreds of non-citizens who could not be removed to Australia because they were refugees or stateless.
The Commonwealth had attempted to defend against Abdel-Hadi’s claims for damages using a common law defense – that it was following precedent set by the High Court in the 2004 Al-Kateab decision.
All seven High Court judges ruled against the Commonwealth, with Justice Michelle Gordon saying it would “substantially weaken an individual’s ability to obtain redress where the executive oversteps its authority”.
“That door should stay closed,” Gordon said.
A government spokesperson said: “The Commonwealth notes the High Court’s decision and is carefully considering the decision and its implications.”
Australian Lawyers Alliance spokesman Greg Barnes SC said he estimated the bill for the case “could be in the millions of dollars”.
“Previously, in 2017, the Commonwealth Government agreed to pay $70 million (plus costs) to settle a class action involving detainees on Manus Island. Following the Tampa incident in 2001, there have been a number of claims for mental and physical harm by individual asylum seekers – the Commonwealth has had to pay compensation,” he said.
“This is yet another reason why mandatory detention must stop immediately.”
Jana Favaro, deputy chief executive of the Asylum Seeker Resource Centre, said advocates have always stressed that indefinite detention is “harmful” and “it comes at the expense of people’s health, their mental health and their well-being”.
“This is an important result, as it paves the way for people to finally reach justice for the brutality they suffered,” he said.
“Families have been torn apart, children have had their childhoods taken away and there are thousands of people who are still living with the consequences of having years of their lives stolen from them.”
Human rights lawyer Alison Battison welcomed the court’s decision, saying her clients had already been waiting.
He said, “The government must now face the fact that they participated in a system, and have struggled to keep it going, that will now have to pay millions in compensation to Australian taxpayers. This outcome was expected.”
The Albany government last year signed a $2.5 billion deal with Nauru to remove members of the NZYQ-affected group to the small Pacific island.
According to the Department of Home Affairs, twelve people have been deported to the island with 30-year visas, while more than 30 others have been returned to immigration detention pending removal to Nauru.
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