The High Court this week ruled that indefinite detention was “unlawful” if deportation was not an option, overturning laws that formed the bedrock of Australia’s hardline immigration rules since 1992.
Under the policy, Australia sought to deter new arrivals by threatening to jail anyone who arrived without a visa – regardless of their circumstances.
Immigration minister Andrew Giles said Friday that one man had already been freed following Wednesday’s ruling, and “other impacted individuals will be released”.
AFP understands that about 90 people could be eligible for release because they cannot be deported to their home countries.
Australia began the mandatory detention of people arriving without visas in 1992, under the centre-left Labor government.
Under the “Pacific Solution” policy, thousands of people who attempted to reach the country by boat were moved to offshore detention centres on Manus and the tiny nation of Nauru.
In 2004 the High Court ruled non-citizens could be held indefinitely, even in cases where deportation was impossible.
After 14 detainee deaths, a string of suicide attempts and at least six referrals to the International Criminal Court, the scheme was gradually scaled back. As of June, the last migrant held on Nauru was moved to Australia.
The average immigration detainee in Australia is held for 708 days, according to figures from Human Rights Watch, and more than 120 people have been in detention for over five years.
The policy was originally framed as a reaction to significant numbers of people arriving by boat from Vietnam, Cambodia and China.
But it was pilloried by refugee advocates, with the UN’s refugee agency describing the policy as “arbitrary” and “punitive”.
The organisation said it hoped the ruling would “begin to align Australia’s immigration detention practices with international law”.
The case was brought to the High Court by a stateless Rohingya man who had been facing life behind bars after being rejected for a visa on “character” grounds.
The unidentified man arrived in Australia by boat in 2012.
Australian authorities gave him a temporary visa in September 2014 but it was cancelled after he raped a 10-year-old boy.
He was jailed and released on parole in May 2018, but was locked up in immigration detention that same month, as he no longer had a visa.
Efforts to persuade another country to accept the man had come to nothing, the High Court heard.