Commonwealth appeals ‘habeas corpus’ ruling

A 'landmark' refugee legal battle is putting Australia's immigration detention regime under scrutiny A landmark refugee rights case is underway in the High Court, and it could have major implications for Australia’s immigration detention policies. The federal government is appealing a ruling that led to the release of Syrian man, known as AJL20, who was released from detention in September last year. In the previous case, the Federal Court accepted the legal principle of habeas corpus, which is used to rule whether the detention of a person by the state is lawful. Refugee Mostafa Azimitabar walks free after being released from the Park Hotel in Melbourne. Dozens of men were suddenly released from hotel detention. Behind the scenes, a tireless fight goes on Lawyer Alison Battisson, who represents AJL20, described the case as a "landmark" decision that could have further implications for other detainees facing prolonged detention without reason. “It is looking to find a way around decades of law that enables the indefinite detention of incredibly vulnerable people being refugees,” she told SBS News. “The Commonwealth is obviously very concerned about this case." The High Court appeal hearing started on Tuesday, escalating the legal stoush over the habeas corpus ruling to Australia's highest court. The man at the centre of the case is a 29-year-old refugee from Syria who came to Australia as a child and had been detained for six years. In 2014, AJL20 had his visa cancelled on "character" grounds under section 501 of the Migration Act, making him an "unlawful non-citizen" in Australia. However, Justice Mordecai Bromberg last September found AJL20 had been unlawfully detained because the Department of Home Affairs had failed to make arrangements for his deportation to Syria, which was the primary purpose of his period of detention. Ms Battisson said AJL20's case was significant because it showed the courts could hold the Department of Home Affairs to account when it did not fulfil its obligations. “Australia has the most heinous and harsh detention regime in the Western world of asylum seekers,” she said. “What is clear is that the Commonwealth is beginning to look at long term detainees who they’ve taken no action for for years - whether they should be taking action now or releasing them.” Commonwealth appeals ‘habeas corpus’ ruling Government lawyers on Tuesday made their case for the decision to be overturned - arguing it had resulted in an unlawful non-citizen being wrongly let into the community. Before court on Tuesday, Solicitor General Stephen Donaghue described the decision as a “complete aberration” in Australia’s migration system. Dr Donaghue said the Migration Act made clear that an “unlawful non-citizen” must be held in detention until they have been granted a valid visa, or leave the country. “Unless you hold a visa you are in the unlawful non-citizen category,” he told the court. The government has admitted it did not meet its refoulment obligations, but claims the Federal Court ruling of "unlawful" detention remains the wrongful determination. “Even if there was inexcusable delay - no such remedy is sought here,” Dr Donaghue said. A warning sign on the fence of the Brisbane Immigration Transit Accommodation, where a number of Medevac transferees are held. In a Brisbane immigration detention centre, this refugee says he struggles to access halal food Lawyer Justin Gleeson, representing AJL20, rebutted these claims - describing his client's detention as “purposeless” and “arbitrary”, while defending the Federal Court’s habeas corpus ruling. “That is what the government doesn’t want to face up to,” he told the court. Mr Gleeson also said the Australian government had acted in its own self-interest, without taking responsibility for their refoulment obligations. “The remedy will be, at the least, damages for false imprisonment,” he told the court. Mr Gleeson also said the government had failed to use its “discretionary powers” to provide his client an alternative other than facing indefinite long-term detention. He said the failure to provide a reason for detention meant the Federal Court was justified in ordering his release from detention. Farhad Bandesh Hope for Australian immigration detainees after men freed under centuries-old legal principle The Australian government argues the Federal Court should instead order the Department of Home Affairs to comply with its refoulment obligations by making arrangements for AJL20’s return to Syria. The High Court case comes as dozens of asylum seekers who came to Australia under now-repealed medevac laws have been released from immigration detention in Melbourne, Brisbane and Darwin since early this year. Lawyers acting on behalf of the transferees have claimed this decision follows complex and ongoing legal battles seeking to prove the detention of the men was unlawful. Ms Battisson said the medevac cohort is a “complex” group and it is unclear how the AJL20 case could “impact on those releases”. The High Court has now adjourned to consider its decision.

Paul Bongiorno

This picture shows vials of the AstraZeneca Covid-19 vaccine and a syringe in Paris on March 11, 2021. - Scott Morrison October vaccination goal under threat as AstraZeneca bombshell causes rollout chaos This picture shows vials of the AstraZeneca Covid-19 vaccine and a syringe in Paris on March 11, 2021. - European countries can keep using AstraZeneca's coronavirus vaccine during an investigation into cases of blood clots that prompted Denmark, Norway and Iceland to suspend jabs, the EU's drug regulator said on March 11, 2021. AstraZeneca explained: Why it’s no longer ‘preferred’ for under-50s AstraZeneca side effects Seven people who had the AstraZeneca vaccine tell us its side effects COVID risk looms large as Londoners ignore social distancing to mourn Philip Philip outside Buckingham Palace View from The Hill: Voters could wreak vengeance if Scott Morrison can’t get rollout back on track WA to welcome Kiwis without quarantine requirements Australia bumps up its Pfizer vaccine order by 20m Australian medical team head to PNG to aid COVID response April 2022: When Australia will most likely be fully vaccinated, maybe COVID risk looms large as Londoners ignore social distancing to mourn Philip Philip outside Buckingham Palace OPINION Paul Bongiorno: Not even the states can save the Morrison government from itself this time The Ferguson Report: Chris Lilley offers Andrew Laming empathy training Dennis Atkins: Scott Morrison’s treatment of Christine Holgate shows his true colours Madonna King: Dear Andrew Laming, I’ve written your resignation letter for you Garry Linnell: Why Morrison’s ‘She’ll be Right’ vaccination model is failing on so many levels LIFE Facebook, Instagram outage sends users scurrying to Twitter Selling fast: Most of the half-price airfares are already gone Virus forces shutdown of Cambodia’s world-famous Angkor temples How to make the most of the New Zealand travel bubble IFM looks offshore as large-scale renewables projects hit the doldrums in Australia Calls for JobKeeper 3.0 as vaccine rollout flounders ‘Fully panicked’: Nationwide outage hits Vodafone SPORT Sydney Roosters co-captain Jake Friend retires from NRL on medical advice French Open moved back a week to May 30 amid COVID-19 crisis Olympic torch events called off in Osaka due to surging COVID infections Tiger Woods was speeding before crash Sam Kerr says Matildas will embrace underdog status against Germany, the Netherlands WEATHER PUZZLES Trivia Crosswords Sudoku There’s something smug about the reaction of the federal government and its health advisers who believe the disaster they are presiding over could be worse and there’s nowhere else on earth you would rather be. It’s a message the Prime Minister repeated at three news conferences this week – despite the unraveling of a vaccine rollout they all had a year to plan for. Sure Australia is nowhere near the plight of Brazil, India, Papua New Guinea – or for that matter France and Italy – all facing repeat waves of a pandemic claiming thousands of lives and pushing their health systems to the verge of collapse. But by now, four million Australians were promised they would be vaccinated. We were promised that by October the whole population would have received at least their first jab, and the nation would be well on the way to a return to accustomed prosperity. Morrison pleads pandemics are by definition unpredictable and this one-in-100-year crisis has the whole world on a steep learning curve. But the evidence is our Prime Minister and his government are slow learners and proud of it. Still ringing in our ears is the assurance from Health Minister Greg Hunt that the vaccine distribution will be “a marathon not a sprint”. The head of his department, Brendan Murphy, scoffed at questions as to why we had not embarked earlier on a rollout like Britain and the United States. Dr Murphy said on more than one occasion: “We’re not in a hurry in Australia. We don’t have a burning platform, as I’ve said on many occasions. We can take our time to do this vaccination properly.” The tragedy is that the slow and fraught rollout was horribly botched. Last month, to much fanfare, Greg Hunt proclaimed a “momentous day” with the beginning of the program to vaccinate everyone over 70 in “one of the largest logistical exercises ever undertaken in this country”. Vaccines weren’t delivered, doctors were left in the dark, their clinics swamped by confused patients only to be turned away. Former head of the federal health department, Professor Stephen Duckett, described the vaccine distribution as “overhyped and under delivered”. Warnings from the Labor opposition, some state health authorities and experts that the government had put too many eggs in the AstraZeneca basket proved sadly prescient. Not only is the Australian manufacturer CSL behind schedule, the product itself is now thought not safe enough for anyone under 50 – a sizeable chunk of the population. The credibility of that vaccine was not helped by the Prime Minister’s panicked early evening news conference on Thursday night. Now Morrison says he has “secured” another 20 million doses of the Pfizer vaccine by the end of the year, even if they all arrive by then, few expect the national inoculation target will be reached much before March or April next year. “Secured” of course doesn’t mean delivered, and again we are relying on a product we are incapable of manufacturing and have to import. The fact that Australia does not have the capacity to produce these modern mRNA vaccines is surely a disastrous example of our failure to invest in and keep up with vital technological innovation. Monash University’s Professor Colin Pouton is calling on the federal government to fund a fast-tracking of a factory here to do the job. Midweek, the premiers of New South Wales and Queensland washed their hands of any blame for the disaster Australia’s rollout of the COVID-19 vaccines had become. Gladys Berejiklian and Annastacia Palaszcuk made it very clear the states were responsible for 30 per cent of the distribution, the Commonwealth for the rest – and completely responsible for the supply of the vaccine. The states ignored Morrison’s pressure to curb lockdowns and keep borders open, and that saved the health of the nation and contributed in no small way to the incipient economic recovery. But on the vaccine planning and delivery, the emperor in Canberra has no clothes and the nation will pay dearly for longer. Paul Bongiorno AM is a veteran of the Canberra Press Gallery, with 40 years’ experience covering Australian politics

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