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An attempt to extend the scope of a controversial decision of the Superior Court on immigration arrest has failed in the same court, causing anger of refugee defenders.
Two asylum applicants, from Poland and Vietnam, respectively, sought damage after stating that it was illegal that the immigration authorities stop them while their protection visas requests were processed.
Both men were arrested after they served prison sentences for drug crimes committed in Australia.
The Court of Administrative Appeals found that their criminal feats exposed them to the risk of significant damage if they were deported to their countries of origin.
He decided that the Polish man risked to be imprisoned and undergoing harmful treatment if he returned him home, while the Vietnamese man could be sentenced to the death penalty.
The couple maintained the decision of the court meant that they could not be eliminated from the country, which meant that their subsequent detention was unconstitutional.
They were based on the historical decision of 2023 in the Nzyq case, which found that the arrest of indefinite immigration was illegal if there is no reasonable perspective of the elimination of Australia’s person in the predictable future.
However, the Superior Court determined that the ruling did not apply whether the arrest of an illegal non -citizen is limited to what is necessary for visa processing or deportation purposes.
The judges found that the arrest of men was mandatory while their protection visas were processed.
The main lawyer of the Asylum Seeker Resources Center, Catherine Holbeche, said that the Superior Court had not recognized “the human consequences of its decision” and its impact on the current and past detainees.
“For people looking for asylum, the experience of prolonged detention replicates the past trauma, the deprivation of rights and the freedom they fled,” he said.
The decision occurs after greater scrutiny in the Australian immigration detention laws after Nzyq’s shocking decision, which led to the release of 150 immigration detainees with criminal record.
While some had serious criminal convictions, even for murder and rape, others faced less serious charges before being detained for immigration.
A number was arrested by allegedly repeat offender after his release, which caused a public and political fierce reaction.
Poles and Vietnamese men were not among the liberated cohort, but were released in 2024.
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