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No detention if owed protection: New front in High Court fight
A man who faces the death penalty in Lebanon over terrorism accusations is preparing to launch a bid for freedom from immigration detention as his lawyers argue that anyone owed protection should not be held indefinitely without hope of deportation.
The man, given the pseudonym JPPS, was convicted and sentenced to death in his absence over accusations he was involved in a terror group. He is part of a wider group of people in immigration detention that lawyers say should be released into the Australian community as they cannot be deported.
Immigration Minister Andrew Giles is at the centre of the government’s detention crisis.Credit: Alex Ellinghausen
Other cases have been lodged, or are on the verge of being lodged, for the release of detainees on the basis they are owed protection, increasing the size of the cohort that could be freed following the outlawing of indefinite detention as Labor braces for years of legal upheaval.
Those cases come as the government prepares for the possibility that dozens more detainees will be added to the now 152 already freed, depending on the success of a High Court challenge next month about people who don’t cooperate with efforts to remove them.
Barrister Jason Donnelly, who is representing JPPS, said his client was still in detention even though he cannot be sent back to death row in Lebanon, after the Administrative Appeals Tribunal in September overturned the government’s decision to exempt him from protection due to the conviction – a matter the government was seeking to have reviewed.
“This emphasises the uncharted waters we’re in as a result of NZYQ,” Donnelly said, adding last year’s High Court decision had turned the debate over immigration detention into a “political football”.
“One shouldn’t lose sight of the fact that these are humans, many of them have significant ties to the country,” he said.
The man – who was tortured in Lebanon, where he was also the victim of a shooting – has denied the accusations, saying he had no links to terrorists to whom he had sold a car. The tribunal found the conviction in absentia did raise concerns about the man’s past, but it couldn’t be relied upon to exempt him from protection.
Human Rights for All director Alison Battisson said she was contemplating lodging cases for multiple clients still in detention on the basis of their protection findings. Another matter is set to be heard in the Federal Court on Friday.
University of Canberra professor Kim Rubenstein, an expert in constitutional and citizenship law, said November’s NZYQ ruling meant the government could only keep somebody in immigration detention if they were going to be deported.
“That is the question that the court is going to be asked: is it lawful for them to be kept in detention?” Rubenstein said.
Opposition immigration spokesman Dan Tehan urged the government to “come clean about the size and scale of this mess” during a parliamentary week in which he grilled Immigration Minister Andrew Giles about the number of other people who could be freed.
“At every turn there is a new development which the government has not been up front about,” he said.
Giles was contacted for comment and said: “We will not comment on matters before the Court because we will not do anything that jeopardises our chances of being successful.”
Home Affairs Minister Clare O’Neil acknowledged on Friday that the High Court decision on NZYQ had overturned years of migration law and could be followed by other cases that forced the release of detainees.
Donnelly said he’d also acted for released detainees who had challenged their requirement to wear electronic monitoring bracelets and abide by curfews in the High Court before the government had relaxed their conditions.
One of those includes a man with the pseudonym XTVC, who was jailed in 2011 after raping a sleeping woman at a party.
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