Asylum seeker ‘Ned Kelly’ freed from endless detention
Farid Farid |
An Iranian asylum seeker who spent more than a decade in immigration detention across Australia has won a Federal Court challenge, ending his time in limbo after it was deemed unlawful and unconstitutional.
The man, who legally changed his name to Ned Kelly Emeralds in a nod to the 19th century Australian outlaw, sought asylum in Australia after arriving by boat in 2013 and has been detained since.
“This is basic freedom, it is something you and I share. I haven’t had this for over ten years,” he said on Thursday in a statement published by the Human Rights Law Centre.
“I could not go home (to Iran), and the government chose not to release me. Nobody should be asked to choose between their life and their freedom.”
Mr Emeralds was not among the cohort of more than 140 detainees released by the Albanese government in recent weeks.
His case is the first heard since the High Court ruled on November 8 that indefinite detention was unlawful.
Mr Emeralds was initially found to be owed protection by Australia in 2016 but his visa was denied and he has been navigating the tribunal and courts system to be given refugee status.
In 2021, the Federal Court ruled Mr Emeralds was to be placed in home detention in Perth, in the residence of close friends, until the federal government resolved his status.
But former immigration minister Karen Andrews exercised her personal powers to prevent him from being removed from Australia or housed with his friends.
On the day the home detention order was to come into effect, Nauru also advised Australia it would not accept him.
The Morrison government then appealed against the court’s ruling.
In September the High Court found, by majority, the Federal Court’s full bench did not have jurisdiction to hear the government’s appeal.
In his judgment on Tuesday, Justice Geoffrey Kennett said his case “is the story of a human being who, without being convicted of any crime, has been detained for ten years.”
He ruled Mr Emeralds “is not lawfully detained and is entitled to be released immediately”.
Justice Kennett noted Mr Emeralds had given evidence that he would attempt to end his life if he was to be deported to Iran.
Australia is bound by international law to only send asylum seekers to countries where they would be safe.
The 43-page judgment revealed that Department of Home Affairs officers had suggested to Mr Emeralds several times that he meet with Iranian embassy officials to obtain a travel document since his Iranian passport had expired in 2017.
Mr Emeralds said “that he could not meet with Iranian authorities because of what those same authorities had done to him in the past”.
Sanmati Verma, Managing Lawyer at the Human Rights Law Centre, described immigration detention as “a cruel place”.
“People like Ned who are now walking free from their indefinite detention … have had years of their lives taken from them, just because of their visa status,” she said.
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