Govt to pay illegally detained Iraqi $350k

·3-min read

An Iraqi asylum seeker will be paid $350,000 in compensation for illegal detention after the federal government conceded it sat on its hands for two years.

Justice Geoffrey Flick on Monday found the man's detention had become unlawful shortly after he withdrew a request to be deported to Iraq in March 2019.

The judge said it was "of real concern" the Home Affairs department failed to give Immigration Minister Alex Hawke proper advice about the man's case in January 2021.

The document did not expressly present evidence or analysis about the potential for detention being illegal or tell the minister no steps had been taken to deport the detainee since March 2019.

"At the very least, there needed to be the disclosure of facts such that the minister could properly form an assessment as to whether the detention had become unlawful," the judge said.

Had Mr Hawke been properly advised then, it may be "safely assumed he would in all likelihood intervened" as he did in May 2021, the judge said.

But that said little about what decision Mr Hawke's predecessor would have done had he been properly advised in 2019.

Justice Flick said then-immigration minister David Coleman would have realised the department wasn't taking any steps to secure the applicant's removal from Australia, had he directed his attention to the man's plight.

"Continuing unlawful detention, he would have recognised, was a situation which could not be countenanced," Justice Flick said.

The man, aged in his 20s, was released on a humanitarian visa and a bridging visa on May 4 - the day the government was set to defend its continued detention of him in the Federal Court.

The government admitted it had breached the migration act from March 2019 because it took no steps to ask Iraq about accepting "involuntary removals" from Australia.

But it maintained the man's detention remained legal as he didn't have a visa until May 2021.

Mr Hawke cited "public interest" when issuing the man's visas.

"It may equally be inferred that it would have been 'in the public interest' to remedy the unlawfulness of his detention at a far earlier point of time, had proper consideration been given to his plight," Justice Flick said.

"There was no evidence that any factors of relevance to an assessment of the 'public interest' were any different in 2019 than were relevant in May 2021."

The only purpose for the detention was to repatriate him to Iraq and the Home Affairs department had done nothing, the judge found.

Rejecting the commonwealth's argument that any damages should be nominal, he ordered the Iraqi man be paid general damages of $350,000 within 28 days.

The man first arrived in Australia in May 2012 by boat when a teenage boy.

Detained as an unauthorised maritime arrival, he was released on a bridging visa in 2013.

That visa expired in 2014 after he exhausted his appeals to receive a protection visa.

In 2020, another Federal Court judge found a Syrian man had been unlawfully detained because Home Affairs took no active steps to deport him.

The Commonwealth has appealed that case to the High Court.

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