The Federal Court reworks its approach to asylum seekers … Punitive detention … Government failure to deport leads to award of damages … Deportation with damages … High Court gazes at the tea leaves … Janek Drevikovsky looks at the latest cases 

The cruelty persists in as much as the family have been sentenced to limbo – community detention in Perth while unhelpful judicial processes play out. 

As a High Court judge nearly 30 years ago, Sir Gerry co-wrote the judgment in Lim, the leading case that laid out the limit on government power to detain asylum seekers. 

Brennan with justices Bill Deane and Daryl Dawson reasoned that the power to punish was a “judicial power” and under the Constitution only courts can exercise judicial powers.

Punitive detention is a power for the courts alone, not the parliament or the executive. 

The executive government can detain someone, but only to pursue a purpose other than punishment. That means the parliament can allow the executive to detain asylum seekers, but only for a valid purpose, like preparing them for deportation. 

“The [relevant] sections will be valid laws if the detention which they require and authorise is limited to what is reasonably capable of being seen as necessary for the purposes of deportation …

On the other hand, if the detention which those sections require and authorise is not so limited, the authority which they purportedly confer upon the executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien.”

Since Lim, the High Court has heard challenge after challenge to Australia’s offshore detention regime. Nearly all of them have failed. 

The nadir of these cases was Al-Kateb – there, the court found that a stateless man could be detained indefinitely, so long as he could not be deported to another country. 

Nor has the Lim principle assisted the Biloela family, or the scores of refugees who have spent years – sometimes nearly a decade – in offshore gaols. 

Yet there are some reasons for optimism. In recent decisions, both brought by detained asylum seekers, two Federal Court judges have breathed new life into the principle. 

Their approaches, while different, have two common threads. 

First, the focus is on whether, in a particular case, officials acted lawfully; not on whether the provisions of the Migration Act were constitutional. 

Second, both judges said they would award damages to the detainees for their unlawful imprisonment. That’s different from most cases so far, which have usually declared either that the detention was lawful or unlawful but given no compensation. 

The first case is AJL20, decided by Justice Modercai Bromberg last year. The applicant is a Syrian citizen, who came to Australia unlawfully, and has been detained since October 2014. 

On the evidence, the government had taken no steps since early 2019 towards AJL20’s deportation. 

The judge agreed that the relevant sections of the Migration Act had to be construed in light of Lim and in accordance with the Constitution. 

Since executive detention could not be punitive, the Act could not empower officials to detain AJL20 except for a legitimate purpose. From the moment officials stopped trying to deport AJL20, his detention was unlawful.

Justice Bromberg found the asylum seeker had been unlawfully imprisoned and moved to award him damages. 

Before damages could be assessed, the Commonwealth appealed to the High Court, where a hearing took place in April this year. 

Solicitor-General Stephen Donoghue SC argued for a very different construction of the Migration Act. He said the Act allowed detention until an asylum seeker was deported; it separately imposed a duty on officials to deport as soon as practicable. 

But failure to do so did not make detention illegal. The writ of mandamus was the proper remedy, and applicants could use it to force officials to do their duties. But they should not be entitled to damages. 

Former solicitor-general Justin Gleeson SC appeared for the detainee, arguing Bromberg’s decision was an orthodox interpretation of Lim. The High Court has reserved judgment.

Even if the Court  finds against the detainee in AJL20, the second recent case, MZZHL, is not necessarily invalid. The judge in that matter, Justice Geoffrey Flick, reached the same conclusion as Justice Bromberg, but on slightly different grounds. 

MZZHL is a 26-year-old Iraqi asylum seeker, who arrived in Australian in 2012 and was detained from 2018 until May this year. For most of that time, the authorities took no steps to deport him. 

On the eve of his hearing, MZZHL was granted a bridging visa and released into the community. Justice Flick had to decide whether the asylum seeker’s detention had been unlawful – and whether he should award damages.  

The judge reasoned from the “presumption of legality”, which says parliament does not extinguish common law rights except by clear words or necessary implication. 

The relevant common law right, HH said, was that imprisonment has to be for a lawful purpose. Nothing in the Migration Act extinguished that right. 

So the word “detain”, in the sections under consideration, really meant “lawfully detain”. 

Indefinite detention, for no particular purpose, is unlawful. For most of MZZHL’s term in detention, officials did nothing to deport him; they therefore kept MZZHL detained without a lawful purpose. 

Justice Flick decided the asylum seeker had been falsely imprisoned and deserved $350,000 in damages. 

No appeal has been lodged against that decision – yet. The Commonwealth may be waiting for a result in AJL20 before it makes a move. 

If we presume the High Court gives its stamp of approval to either the findings by Flick or Bromberg, where does that leave asylum seekers? 

There are also limits to the new approach. Deciding that an asylum seeker was falsely imprisoned is not the same as granting the applicant an Australian visa. 

There was simply no legal opportunity for the court to do so in either AJL20 or MZZHL. The asylum seekers in both cases are still facing deportation. 

There’s also the question of how the government will respond to the two cases, especially if it loses its High Court appeals. Both decisions say an asylum seeker can be lawfully detained so long as border officials are trying to deport them from Australia. 

That might create a perverse incentive for the government – deport as soon as possible, rather than risk a court case and a damages judgment.