The worse the person, the more chance they have to stay in Australia?

Last Wednesday, the High Court handed down a historic ruling that it is unconstitutional to allow indefinite detention of illegal immigrants with nowhere else to go in Australia, overturning a controversial decision that has guided Australia’s asylum seeker policy for the past 20 years.

The ruling, which at the time could have meant the imminent release of some 92 detainees whose visas had been revoked on character grounds, was hailed by refugee law experts. The media has since learned that at least 80 of them have already been released. The ruling opens a Pandora’s box, as it is impossible to predict the impact of the release of these non-Australian citizens who cannot be repatriated back to their place of origin, and who will be returned to the Australian community. Some rape victims have expressed extreme shock and anxiety about living in the same community as their perpetrators.

Following the High Court’s decision, it has been argued that the decision effectively means that anyone can apply for a refugee temporary protection visa on political persecution grounds, as long as they cannot be repatriated, or if their life would be in danger if they were repatriated, and if they have committed a more serious offense in Australia, and if they are not accepted by another country after they have been convicted and served their sentence, then the decision effectively allows them to stay in Australia indefinitely. This is contrary to the requirement of good character to immigrate to Australia, and suggests that Australia allows people with no country to return to to remain here by committing crimes and serving their sentences.

The original ruling

The Immigration Detention Centre (IDC) is a facility established by the Australian federal government to curb illegal immigration. Its origins can be traced back to the 1990s, when the Australian government responded to the influx of immigrants by establishing detention centers, primarily to intercept those without legal status. Since then, detention centers have been established in Australia and overseas, and have become an important part of Australia’s illegal immigration policy.

The 2004 ruling (now overturned) involved stateless Palestinian Ahmed Ali Al-Kateb and Iraqi Abbas Mohammad Hasan Al Khafaji, both of whom arrived in Australia in 2000. They had applied for Australian temporary protection visas, but were refused and asked to return to the Middle East. However, the government was unable to make arrangements with other countries to receive them. The men had been living in the community for 12 months when a court order decided to return them to a detention center.

Katib and Kafaji were quickly granted bridging visas, but those who followed were not so lucky. The decision allowed Australia to legally detain indefinitely those who could not be returned to another country and whose asylum claims had been rejected. According to the Human Rights Law Center, the government holds people in immigration detention camps for an average of 708 days, but currently 124 people have been detained for more than five years, many of them stateless or deserving of asylum in Australia.

Australia’s immigration policy has been in a state of flux, but the number of illegal immigrants remains high and is a constant headache for the government. Although detention centers are one of the government’s central tools to address the problem of illegal immigration, they remain ineffective and have been criticized for their inhumane treatment and lack of a clear maximum time limit. The Australian NGO Human Rights Watch has pointed out that indefinite detention can lead to a rapid deterioration of people’s mental and physical health. The High Court’s reversal of the 2004 ruling has won the approval of many human rights lawyers.

Human Rights Above All?

Indefinite detention has always been unfair and illegal under international law. For many years Australia’s detention practices have been completely out of step with those of other democracies and in need of reform. One of the reasons why its detention centers for illegal immigrants have been widely criticized is because of their inhumane treatment. It has been reported that migrants in the detention centers are forced to live in small, dirty conditions with no privacy and are often subjected to physical and psychological abuse.

In 2008, the Australian federal government began a violent clearing of the detention centers, which resulted in injuries to many migrants and police officers and drew widespread international criticism. This makes last Wednesday’s ruling all the more significant, with Professor Jane McAdam, director of the Caldow Centre for International Refugee Law at the University of New South Wales, calling it “an important and long-awaited victory for human rights”.

In reversing the original decision, High Court Chief Justice Gagler expressed concern about the lack of a time limit on indefinite detention, stating that when it is known that certain individuals are not welcome in other countries because of their record of behavior or because they may pose a security risk, these individuals will be detained because of their character. But this is not entirely untrue. As a result of this judgment, the second defendant in the Mongolian girl murder case, Cyrus, who had absconded to Australia and had been detained at the Sydney Detention Center, has been released from the Villawood Detention Center in Sydney and has regained his personal liberty.

In addition, a Rohingya refugee who assaulted a child came to Australia by boat in 2012 and admitted in 2015 that he forcibly assaulted a 10-year-old child. Since then, his bridge visa has been revoked and he will have to be repatriated at the end of his sentence. The Rohingya are a unique ethnic group in that they live mainly on the border between Myanmar and Bangladesh, and neither country recognizes Rohingya as nationals under their laws, so Australia is unable to repatriate them. At the same time, the Australian government refused to grant him a “safe haven enterprise” visa, so he had no choice but to stay in an Australian immigration detention center. Now, with the latest ruling, the man has been released under “strict conditions”, but we don’t know what kind of visa he might have, which is bound to be controversial. A country that emphasizes the rule of law, and allows the human rights and freedoms of the individual to override the security of the community as a whole, is a country that emphasizes the rule of law and democracy, and pays the price.

Human rights laws are not absolute

However, Australia’s human rights laws are based on the international human rights treaties to which Australia is a signatory, so they do not have the highest authority. At present, the High Court is of the opinion that the government does not have the right to detain illegal residents who have broken the law and served their sentences, or who are suspected to have broken the law in illegal immigrant centers for a long period of time, but it can provide the government with the right to detain them for a long period of time through the enactment of a new law.

Of course, it is not always easy for the Government to convince legislators that allowing these people to stay in the community will pose greater dangers before they have a chance to pass the law in the legislature. However, this issue has become the choice of the legislators because these people do not have the right to stay in Australia for a long period of time, and they are staying in Australia because they have no “country” to go to. It could also be argued that they are not in Australia because they are there, they are there because they have committed crimes.

However, the principle of imprisoning criminals in Australia is not only to prevent crime, but also to educate and change, so the sentences tend to be lenient. For those who cannot be repatriated, the loss of liberty that allows them to stay in Australia can be said to be subtly similar to the “criminals” who were forcibly exiled from Australia for minor offenses committed in the United Kingdom hundreds of years ago.

How to deal with it appropriately

As of November 13, 80 migrants in detention centers have been released following a landmark High Court ruling. Immigration Minister Andrew Giles said the government had released the 80 people immediately to comply with the High Court’s requirements and ruling, and that protecting the community was the government’s top priority, and that those released would be required to report regularly to the Australian Federal Police, the Border Force and any other relevant agencies. After all, this latest ruling changes two decades of law, and how it is put into practice will require a more careful response from all sides of the government, both to ensure that everyone released into the community can truly live and work in Australia, and to ensure the safety of the wider community.

Immigration Minister confirms release of 80 illegal immigrants

The federal government has confirmed that the ruling affects more than 300 cases. Most of the people who were incarcerated in the first place were incarcerated because most of them did not pass the character test, and some of them were deemed to be compromising national security. Just because a character test and potential security threat can be grounds for denial of a visa, or denial of citizenship, they cannot be grounds for continued detention. This is indeed a legal issue, but it is indeed emotionally difficult for the general public, who have no specialized legal training, to accept a person with a flawed character or even a serious criminal record living in the same community.

All countries governed by the rule of law strongly condemn indefinite detention without judgment or appeal. People deprived of their liberty in detention centers do not live in a legal vacuum. Indefinite detention violates Article 9 of the International Covenant on Civil and Political Rights (ICCPR), and the Supreme Court’s decision to overturn it is a clear first step towards the practical realization of international human rights law. But how much consideration has the court given to the consequences of this first step? Has the interface with the government been adequately considered? Do illegal immigrants who have been detained for a long time need a better plan for their return to the community and their gradual resettlement? The courts must strike a balance between human rights issues and community safety. After all, if a precedent is set, the consequences will be difficult to control.

While the government has indicated that those released will be subject to strict conditions, such as regular reporting to the Department of Home Affairs, refraining from criminal behavior, and adhering to a specific ‘code of conduct’, more importantly, the integration of those who have been detained for so long in inhumane conditions into Australia will inevitably need to be accompanied by a range of psychosocial and social support services, which are currently very limited. Like two ends of a stilted stool, illegal immigrants detained indefinitely have a human right to know what the government is doing to keep their communities safe, and so do the wider Australian community. The Supreme Court’s landmark decision last Wednesday is just the first of many dominoes, and the knock-on effect will be a whole new set of issues for the government, the justice system, and the public. Whether the landmark decision, which focuses more on the human rights of illegal immigrants than the safety of communities, will cause irreversible harm to the Australian public is a matter of time, and the potential price to be paid is not something we want to see.

Migrants need to be aware of social issues

Many people migrate to Australia because it is a better place to live for themselves and their children. Immigration policy not only determines who can come to Australia, it also determines the kind of people who will make up this society. The abolition of the White Australia policy in the 1970’s also contributed to the foundation of Australia as a multicultural nation. Migrants who come to Australia have to understand and participate in the society, but also have to pay attention to the development of social affairs, because the society will continue to change, which will affect the living environment they are seeking.

For example, the recent Aboriginal Voice referendum, or the balance between human rights and social security in the face of illegal immigrants today, have brought about a great impact on the direction of social development. It is only through civil discussion that the government can find a direction of development that society is willing to accept.

Many Chinese people think that we are newcomers and do not know much about these issues, but we all have a responsibility to participate in the society we live in.

Text: Editorial Department

Photo: Internet