The Australian government asked six countries to resettle a stateless Rohingya man three years after his visa refusal was finalised and after he began a high court challenge against the legality of indefinite detention.
Lawyers for the man, known as NZYQ, told the high court on Tuesday a duty to remove him from Australia arose “well over” three years ago, but the government only asked Five Eyes allies, Bangladesh and Saudi Arabia to resettle him “under the shadow of this litigation”.
Craig Lenehan, counsel for NZYQ, said the Australian constitution required more than the “charade” of attempting to deport someone to justify their detention under the Migration Act.
The case is the first full high court reconsideration of the controversial 2004 decision in the case of Al-Kateb, in which a majority of the justices accepted that indefinite detention is authorised even if it was not possible to deport the person.
It could decide the fate of long-term detainees including 127 people who have been in detention for more than five years, many who are stateless or owed protection by Australia, meaning that they cannot be deported.
According to court documents, NZYQ arrived in Australia by boat in September 2012, but had his bridging visa cancelled in 2015 when he pleaded guilty to sexual intercourse with a 10-year old minor.
After serving a non-parole period of three years and four months, NZYQ was released from prison and sent into immigration detention in May 2018. He was denied a safe haven enterprise visa because he was considered a danger to the Australian community.
On 30 May 2023, the commonwealth agreed to a special case stating that NZYQ could not be removed at that time and there was no real likelihood of that changing in the foreseeable future.
But on Tuesday Lenehan revealed that since then Australia had approached Bangladesh, Saudi Arabia, Canada, the UK, the US and New Zealand to ask them to resettle his client.
After Bangladesh and Saudi Arabia refused, Lenehan said the home affairs department prepared to ask the Five Eyes allies with a set of “anodyne” talking points describing that his client had an unspecified “criminal background”.
The Five Eyes nations were asked to respond “urgently” by 2 October if they might accept such a person, which Lenehan noted was the day before the commonwealth’s submissions were due in the case.
Responses from all countries were negative, except the US, which committed to take a “hard look” at NZYQ’s case.
Departmental documents read by Lenehan into evidence concluded it was “impossible to predict” whether the US would take NZYQ or to identify a clear pathway for him to resettle there.
Lenehan submitted that NZYQ is an “inadmissible alien” under US law because of his crime of “moral turpitude”, so would need a series of “uncertain” discretions to be exercised in his favour to go to the US.
That was not enough for the commonwealth to hang its hat on to argue he has any real prospect of removal, Lenehan submitted.
Lenehan submitted that, even if another country did express it was open to take NZYQ, he would still be entitled to a declaration that his detention on 30 May was unlawful.
NZYQ’s case argues that although the government may detain an alien in preparation for deportation if there is “no practical possibility” of doing so, then detention is not authorised.
The commonwealth has submitted that Al-Kateb should not be overturned, and that deporting NZYQ is “not impossible” because the government is “continuing to take steps directed to the plaintiff’s removal by seeking to identify countries to which he could be removed”.
Justice James Edelman noted that under the strict interpretation taken by several judges in Al-Kateb, even health quarantine for 20 years could be justified by the supposed purpose of preventing the spread of disease.
In December, lawyers for an Egyptian man, Tony Sami, sought to overturn Al-Kateb but were thwarted by the Australian Border Force “unwillingly” removing him after he spent a decade in detention.
In a scathing preliminary judgment in the federal court in that case, justice Debra Mortimer accused the home affairs department and Australian Border Force of taking a “somewhat leisurely” approach to his removal.
The hearing continues on Wednesday with submissions from the Human Rights Law Centre and the commonwealth.
