Two non-citizens convicted of serious drug offences lose High Court bid to find they were illegally detained for months

Two foreign-born drug offenders held in immigration detention have lost a High Court bid hoping to find they were unlawfully detained in the wake of a landmark ruling on Australia’s indefinite detention scheme.

The two men, one from Poland and the other from Vietnam, were each detained after their release from prison on serious drug charges and held until both were released into the community last year.

The Polish citizen, known as CZA19, spent five years in detention until he was released on a bridging visa last May after a tribunal found there was a real risk he would be harmed by criminal groups in his native country if returned.

Identified as DBD24, the Vietnamese man was released on a protection visa in November after spending a year in detention and following a tribunal ruling that he may be put to death for his Australian crimes if sent home.

They each brought cases against the Commonwealth alleging they were illegally detained after the November 2023 NZYQ ruling triggered the immediate release of about 150 non-citizens who could not be returned to their home countries and were languishing in indefinite detention.

Both men had pending visa applications at the time and were not released with the cohort, with their lawyers arguing the NZYQ ruling also limited the power of the government to detain them while the applications were processed.

They argued the two men had been illegally detained for months longer than they should have been.

In separate proceedings, the due had both initiated legal action seeking damages for the period they were held.

But on Wednesday, the full bench of the High Court ruled their claim was inconsistent with constitutional principle and they were not entitled to have been released earlier.

The judges found each man was held lawfully for the non-punitive purpose of processing their visa applications.

In the 17 months since the High Court’s NZYQ judgment, 300 people convicted of serious crimes have been released from indefinite detention.

The government subsequently passed laws that would allow people to be deported to a third country.

Late last year Nauru agreed to take three non-citizens; however, the planned deportation is facing legal challenges by the men.