The High Court has ruled against two asylum seekers seeking to challenge the lawfulness of their detention, following the landmark judgment in the NZYQ case.
That decision, in November 2023, found that indefinite immigration detention is unlawful where there is no real prospect of the person's removal from Australia becoming practicable in the reasonably foreseeable future.
The ruling led to the release of around 150 people from immigration detention.
Latest ruling
The latest case involves a man born in Poland and another born in Vietnam. Both were detained while their visas were being processed, after serving jail sentences in Australia on drug charges. They claimed those detention periods were unlawful.
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They were not released as part of the NZYQ cohort, but the Administrative Appeals Tribunal found Australia owed them protection, and they were both released last year.
The pair had been seeking damages in the Federal Court, arguing that they could not be removed from Australia.
In a unanimous ruling, the court said the men's detention was constitutionally valid while their visas were being processed, including for protection visa applications.
In a statement released by the court, the legal question raised by the men about the lack of a reasonable prospect of removal was deemed irrelevant in this case.
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The court found that if the Polish man returned home, he could be jailed and face cruel and degrading treatment.
In the case of the Vietnamese man, the court found that if he returned home, he faced the prospect of the death penalty.
