An attempt to extend the scope of a controversial High Court ruling on immigration detention has failed in the same court, drawing ire from refugee advocates.
Two asylum seekers - from Poland and Vietnam respectively - sought damages after claiming it was illegal for immigration authorities to detain them while their applications for protection visas were being processed.
Both men were taken into detention after they served prison sentences for drug offences committed in Australia.
The Administrative Appeals Tribunal found their criminal exploits exposed them to risk of significant harm if they were deported to their home countries.
It ruled the Polish man risked being imprisoned and subjected to harmful treatment if returned home, while the Vietnamese man could be sentenced to the death penalty.
The pair maintained the tribunal's decision meant they could not be removed from the country which meant their subsequent detention was unconstitutional.
They relied on the 2023 landmark decision in the NZYQ case, which found indefinite immigration detention was illegal if there is no reasonable prospect of the person's removal from Australia in the foreseeable future.
However, the High Court determined the ruling did not apply if the detention of an illegal non-citizen is limited to what is necessary for visa processing or deportation purposes.
The judges found the men's detention was mandatory while their protection visas were being processed.
Asylum Seeker Resource Centre principal solicitor Catherine Holbeche said the High Court had failed to recognise "the human consequences of its decision" and its impact on present and past detainees.
"For people seeking asylum, the experience of prolonged detention replicates past trauma, deprivation of rights and liberty from which they fled," she said.
The decision comes after increased scrutiny on Australia's immigration detention laws following the impactful NZYQ ruling, which led to the release of 150 immigration detainees with criminal records.
While some had serious criminal convictions, including for murder and rape, others faced less serious charges before being placed in immigration detention.
A number were arrested for allegedly reoffending after their release, sparking fierce public and political backlash.
The Polish and Vietnamese men were not among the freed cohort, but they were released in 2024.
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