Despite High Court win for Ned Kelly Emeralds, he remains detained
Ned Kelly Emeralds, an Iranian man who has been detained for over a decade while seeking asylum, has won his appeal in the High Court of Australia, leaving open the possibility that courts could end indefinite detention by making ‘home detention’ orders. Despite this victory however, Ned’s detention continues – now in its eleventh year.
Ned Kelly Emeralds arrived in Australia by boat in 2013 and has been detained since that time. In 2021, the Federal Court ruled that Ned could be removed to Nauru and was to be placed in ‘home detention’ in Perth, in the home of his close friends, until the Commonwealth resolved his status. At the last minute, former Minister Karen Andrews exercised her personal powers to prevent him from being removed from Australia or housed with his friends. The government also then appealed against the judgment that was rendered moot by the Minister’s actions.
The High Court by majority found today that the Full Court of the Federal Court did not have jurisdiction to hear the government’s appeal. But the Court did not resolve whether ‘home detention’ orders could be made in cases such as Ned’s. That question remains to be decided in another challenge.
For now, Ned remains in immigration detention, and will continue his fight. Next week, the Federal Court will hear Ned’s next challenge to his ongoing detention. He is represented by the Human Rights Law Centre.
Ned Kelly Emeralds said:
“Despite being kept in a cage and denied release for over ten years, I continue to stand up so I might one day live a life in freedom. My case shows the unacceptable powers that Ministers have over the hopes, dreams and possibilities for our lives – if the Minister wants it, you can be locked up for a decade, sent to Nauru or given a permanent visa. But everyone deserves an equal chance to make a life in freedom.”
Sanmati Verma, Managing Lawyer at the Human Rights Law Centre, said:
“The High Court’s judgment today gives pause to consider the lengths to which governments will go to deprive people of their freedom. In Ned’s case, this involved the previous Minister personally stepping in to prevent court orders from taking effect, then bringing an appeal against inoperative orders. We should be disturbed by the Australian Government’s ongoing commitment to indefinite, potentially lifelong detention.
“Despite his victory today, Ned remains in detention. People are being detained for some of the longest periods on record – on average, 711 days. On last count, there were 135 people who had been detained for over 5 years. This is the legacy of mandatory immigration detention that we must reckon with.”
Background
Ned arrived in Australia by boat from Iran in 2013 and has been detained since that time. Last year, the Federal Court found that, because of the date of his arrival, Ned should have been taken to a Regional Processing Country. Instead, he was shipped around different detention centres in Australia while his Protection visa application was processed.
In 2016, Ned was found to be owed protection by an officer of the Department of Home Affairs. But, instead of issuing him with a visa, a second officer refused his application in 2018. Since then, Ned has been navigating the broken “fast track” protection process.
The Federal Court ordered that Ned be released from Perth detention centre and transferred to the home of friends in Perth, until his immigration status was resolved. But then Minister for Home Affairs Karen Andrews exercised her personal powers to prevent Ned’s removal to a Regional Processing Country, as a result of which the Court’s orders could not come into effect.
Media contact:
Thomas Feng
Media and Communications Manager
Human Rights Law Centre
0431 285 275
thomas.feng@hrlc.org.au