‘Hope is like torture to me’: One man’s High Court bid could change fate of hundreds

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In August 2021, Iranian asylum seeker Ned Kelly Emeralds waited at a bus stop outside the Perth Immigration Detention Centre, the meagre possessions he had collected during eight years in onshore detention bundled in a small bag.

It was a day of jubilation for Emeralds. After years of fighting to escape Australia’s immigration system, several suicide attempts and countless court appearances, a Federal Court order allowed him to stay at a friend’s house in Perth while waiting for his immigration status to resolve.

Ned Kelly Emeralds in immigration detention in Perth.

But his bus never came.

“Waiting for that bus was like my time in detention,” he tells this masthead from detention this week. “On the one hand, I had some hope that it would come. On the other hand, I knew that it wouldn’t.”

At the 11th hour, then-home affairs minister Karen Andrews invoked a provision of the Migration Act that meant that the possibility of Emeralds living in the community before being moved to offshore detention in Nauru, where he now desired to go, was no longer possible.

Emeralds got an email from his lawyer, showed the security guard and was let back into the detention complex.

The asylum seeker, who changed his name to Ned Kelly as an act of dissidence, has been in immigration detention since fleeing Iran in 2013.

Diagnosed with psychogenic mutism following a suicide attempt and complex post-traumatic stress disorder, Emeralds has experienced anorexia, engaged in a hunger strike, and made multiple suicide attempts.

The order by Federal Court judge Darryl Rangiah in 2021 said that because of Emeralds’ long detention in Australia, the grievous impact of his detainment, and the unclear status of his future, he should wait in the community rather than in custody while authorities decided if he could leave. Andrews’ decision nullified that ruling.

“I had come to expect this disappointment,” Emeralds says. “But that was the first day that I came to realise that the courts in this country have no power over the government either.”

Ned Kelly Emeralds with his lawyer Sanmati Verma.

It seems counter-intuitive that Emeralds would prefer to go to Nauru instead of staying in Australia. But after fighting for years to navigate the immigration system, he says he feels like he has no other choice.

But his case, which will go to the High Court on Thursday, has the capacity to allow hundreds of asylum seekers to live in the community while their immigration status is determined. The central question hinges on whether the Federal Court has the power to decide where individuals live while the process is ongoing.

Rangiah decided such an order is within the Federal Court’s power, but the government appealed to the full Federal Court and won. The saga followed a pattern of battles the government has had with the Federal Court over the extent to which both institutions can impact the lives of those held in immigration detention.

In September 2020, Justice Geoffrey Flick blasted Morrison government acting immigration minister Alan Tudge for leaving a man in immigration detention after he was granted a protection visa, saying the department had “unlawfully deprived a person of his liberty”, which “exposes him to both civil and potentially criminal sanctions”.

The High Court challenge comes shortly after the Refugee Council released estimates that showed in January Australian detainees spent an average of 806 days in immigration detention, a new high. That figure dropped to an average of 780 in March.

Last year marked the 30th anniversary of Australia’s law of mandatory detention for those who arrived unauthorised by boat.

Dr Sara Dehm, senior law lecturer at the University of Technology Sydney, said, if successful, Emerald’s case would be an important step in enabling people in immigration detention to challenge the conditions and limits of their detention.

Dehm said larger systemic reform was needed to limit the power a minister had to keep a person indefinitely in immigration detention, or to use detention as punishment.

“Unlike the UK or elsewhere, Australia does not have a system of immigration bail, nor does Australian law impose time limits on how long a person can be in immigration detention,” she said.

In 2016, it was found the Department of Home Affairs owed Emeralds protection. But instead of issuing him with a visa, a second officer refused this subsequent application in 2018. Since then, Emeralds has been unsuccessfully navigating the “fast-track” protection process.

“Ned’s case actually represents the total dysfunction of Australia’s asylum regime, extending from the arbitrary ‘regional processing’ arrangements, the unfair ‘fast-track’ procedures, to the continuing indefinite detention of people seeking asylum,” said Sanmati Verma, managing lawyer at the Human Rights Law Centre, which is representing Emeralds.

The Home Affairs Department said it did not comment on individual cases for privacy reasons.

Earlier this year, the Albanese government allowed 19,000 refugees to stay permanently in Australia and granted them rights to social security and reunion with family members, but was criticised over the thousands of legacy cases involving people on bridging visas.

Emeralds is worried that whatever may come of his case, it will be too late.

“There is a Persian proverb: ‘nooshdaroo bad az marge Sohrab’. Which means, delivering a cure to a person who has died. I don’t know if I will be free, and if I am, I don’t know what I would do with that freedom.

“Hope is like torture to me, I can’t afford it,” Emerald says, “I am not the person that I was when I came to this country. I do not know what person will walk out of this place.”

If you or anyone you know needs support call Lifeline 131 114, or Beyond Blue 1300 224 636.

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