A stateless Kurdish man released from immigration detention is seeking “aggravated” and “compensatory” damages for alleged false imprisonment – the first such case sparked by the high court’s ruling that indefinite detention is unlawful.
The intellectually impaired man, known as DVU18, has sued the immigration minister, Andrew Giles, through a litigation guardian, in a case that could pave the way for the 149 people released to sue for hundreds of thousands of dollars of compensation each.
In November the solicitor general, Stephen Donaghue, told the high court such claims for compensation would be “inevitable” if it ruled indefinite detention is unlawful and “undefendable” in cases where it conceded the people had been detained while it was impossible to deport them.
Nevertheless, the high court ruled indefinite detention breaches the Australian constitution, triggering months of political debate about the government’s preparedness to respond to the case and two tranches of emergency legislation imposing conditions on those released.
DVU18 is also challenging the ankle bracelet and curfew conditions. This could be the first case to reach the high court as three earlier challenges were discontinued after the minister lifted the conditions before Christmas.
Lawyers in all three cases filed to discontinue on 20 December, and the cases were dismissed on 8 January, although other cases with new plaintiffs are already being prepared.
According to court documents, seen by Guardian Australia, DVU18 was born in Iran in 1997 and arrived with his mother by boat at Christmas Island aged 16 in August 2013.
DVU18, who is now aged 26, witnessed torture, saw his father physically assaulted and experienced physical and sexual abuse in Iran.
Although allowed in June 2014 to stay in community detention by then minister Scott Morrison, this permission was revoked in August 2014. DVU18 was refused a safe-haven enterprise visa by Coalition ministers David Coleman in January 2019 and Peter Dutton in September 2019.
DVU18’s statement of claim said he was held “in criminal custody” from 1 October 2020 to 31 December 2021 and again from 10 January 2022 to 28 July 2022.
Guardian Australia understands this included serving time for a conviction of using a carriage service – phone and internet – to menace, harass or cause offence.
In July 2022 the New South Wales local court dismissed a criminal charge against him and discharged him unconditionally because he was suffering from mental illness or intellectual disability. DVU18 has been diagnosed with ADHD, hyperkinetic conduct disorder, bipolar disorder and autism.
DVU18 spent a total of more than seven years in immigration detention from September 2014 to October 2020, December 2021 to January 2022 and July 2022 to November 2023.
His claim argues there was “no real prospect” of deporting him from at least January 2019 until he was released on 11 November 2023.
As a result of the high court’s decision, DVU18’s solicitors Norton Rose Fulbright and barristers Adam Hochroth and Hannah Ryan argue his immigration detention was unlawful for the total of more than two-and-a-half years he spent there in spells from January 2019.
False imprisonment is rarely litigated but courts have awarded tens of thousands of dollars compensation for periods as short as a few hours.
Legal practitioners acting for other members of the NZYQ cohort also point to New Zealand’s minimum of $150,000 a year for imprisonment after wrongful conviction as a guide to the likely scale of claims.
DVU18’s lawyers submitted the 10pm to 6am curfew is a “significant deprivation of physical liberty”. His lawyers claim the ankle bracelet invades bodily autonomy, privacy, dignity and is a practical deprivation of liberty because it suggests the wearer may be someone released from immigration detention or “otherwise as a person who is a danger to the community”, they said.
In immigration detention DVU18 showed “poor impulse control and resistance to authority”. DVU18’s lawyers said that “no rational decision-maker” knowing the facts of his case could think he “would abide by the curfew condition and/or the electronic monitoring”.
They warned DVU18 and others subject to conditions are subject to a mandatory minimum sentence of 12 months in prison “no matter how trivial the breach”.
Hannah Dickinson, principal solicitor at the Asylum Seeker Resource Centre, which represented one of the three original plaintiffs challenging visa conditions, said: “We will continue the fight for people subjected to these unjustified, unequal laws and deprived of their liberty, privacy and dignity.”
After the NZYQ decision, the Australian Human Rights Commission’s president, Rosalind Croucher, said: “Those still facing indefinite detention are entitled to their freedom.
“Those detained when they should have been released now have the vindication that their detention was unlawful and may be entitled to restitution.”
Guardian Australia contacted Giles and the Department of Home Affairs for comment.
