Freed From Never-Ending Detention, They Ended Up in Another Limbo

When Gus Kuster finished a one-year prison sentence in Australia, he anticipated rebuilding his life there, in the only country he has ever known. Instead, as a noncitizen and stateless person, he spent the following five years being shuttled between grim immigration detention centers, with seemingly no release date in sight.

Dozens of other people, none of them Australian citizens, have been subjected to the same experience. Some, like Mr. Kuster, had served time for minor crimes, others had been found guilty of serious crimes like murder, and a handful had no criminal background at all.

Australia has been criticized for years internationally for its harsh treatment toward asylum seekers, many of whom were housed in the country’s infamous offshore detention centers, where a few dozen people still remain. But hundreds more are still held indefinitely in similar institutions onshore. Until very recently, that included people who were once given a shot at life in Australia, then had that opportunity snatched away after they committed crimes.

Last month, many of these indefinite detentions came to an abrupt end. A detainee successfully challenged the two-decade precedent in Australia’s highest court, and in the ensuing weeks, more than 150 people have been freed. Just as many cases are under review.

But the ruling has drawn an intense backlash within Australia, where many citizens feel the safety of the community far outweighs the country’s obligations to people who are both migrants and, in many cases, criminals.

The political establishment, the news media and the public at large have also denounced the ruling, saying that the former detainees do not belong in the general population. A handful of the recently freed detainees have been arrested after being charged with new crimes, adding fuel to the fire.

Under pressure from the right-wing opposition, the government has responded by quickly enacting onerous requirements such as curfews and ankle bracelets on former detainees like Mr. Kuster, in effect throwing them into another kind of purgatory. It has also established a “community protection board” of officials who will decide whether some of the worst offenders could again face preventive indefinite detention.

“If it were up to me, all these people would still be in detention,” Clare O’Neil, the home affairs minister, told Sky News. “Some of these people have done deplorable, disgusting things, and I do not want these people in our country.”

Clare O’Neil, the home affairs minister, opposes immigrants being freed from criminal detention.Credit…Lukas Coch/AAP Image, via Associated Press

Many Australians who find it intolerable to have these individuals in their midst have called for all of them to be detained again — despite the cost to taxpayers of more than $280,000 annually per detainee, according to the Refugee Council of Australia, a nonprofit — or transported to another nation.

That is essentially impossible, said Alison Battisson, a lawyer at the firm Human Rights For All, who has represented Mr. Kuster.

“No one who has a criminal record has ever been resettled anywhere else,” she said. “It might feel distasteful, but Australia is a rich country, and we can accommodate these people.”

The detainees themselves have emerged shellshocked from the experience, during which they said they were shunted from one detention facility to the other. Some say they were served child-size meals and subjected to what they described as dehumanizing behavior.

“It’s humiliating and demoralizing — the whole setup of it,” said Mr. Kuster, who was in prison for breaching a restraining order and was freed from immigration custody last month. “It’s a horrible, horrible place.”

A small number of those released under the new ruling do not have a criminal record. In 2013, Ned Kelly Emeralds, who legally changed his name as an act of dissidence, arrived on Australian shores on a boat after fleeing his native Iran. His appeals for asylum were rejected on the grounds that his fear of returning to his homeland was not well-founded, but because he could not be deported under international law he found himself in detention.

“Over 10 years ago, I came to Australia to seek protection from torture in my country and instead I was tortured,” Mr. Emeralds said in a statement. “I had no way to escape. I could not go home, and the government chose not to release me.”

Despite never having been charged with a crime, he is now being monitored with an ankle bracelet while his immigration status remains in limbo.

The sudden releases have their roots in a legal challenge brought by an ethnic Rohingya refugee who had escaped Myanmar’s ethnic cleansing campaign. Identified only as NZYQ, the individual was convicted of sexually abusing a child and, after spending more than three years in prison, had been held in detention for five years of what seemed an indefinite sentence.

Last month, Australia’s high court ruled unanimously that this practice was unlawful, in part because of “the absence of any real prospect of achieving removal of the alien from Australia in the reasonably foreseeable future,” and NZYQ was released.

Despite widespread outrage over the detainees’ release, human rights advocates have welcomed the court’s judgment. They say these people should never have faced the kind of extrajudicial punishment that led to their indefinite detention, which Australian citizens are not subject to.

“The fact that an individual could be held indefinitely at the whim of the government has long been a stain on Australia’s international reputation,” said Graham Thom, a refugee adviser for Amnesty International Australia.

An offshore detention center on Manus Island in Papua New Guinea in 2018.Credit…Jonas Gratzer/LightRocket, via Getty Images

Mr. Kuster, 45, was brought to Australia when he was 4 years old, and had been on a permanent visa from the age of 15. Born in Papua New Guinea to a mother from that country and an Australian father of Indigenous descent, he was entitled to Australian citizenship — but was denied it last year on the grounds that he did not meet the “good character” criterion. Over his adult life, he has had multiple brushes with the law, the most serious being drug and dangerous driving charges.

When he finished his one-year prison sentence in 2018, Mr. Kuster was deported to Papua New Guinea, which declared he was not a citizen and immediately returned him to Australia. He spent the next five years in Australian immigration detention, where he said that he saw no possibility of exit or respite and that he has been left with enduring psychological damage.

In the detention centers, which he described as a “hellhole,” he was surrounded by other traumatized and sometimes suicidal individuals who were themselves confronting a desperate wait of multiple years.

Mr. Kuster, who is now at his parents’ house in Coolenture, Queensland, said the transition to life as a free man — of sorts — has been more agonizing than jubilant, after so many years in detention. “Even just to think about being released to my family and being outside was traumatizing for me” he said.

The government’s new laws to monitor Mr. Kuster and others are already facing legal challenges in the courts.

“It’s clearly a deprivation of liberty,” said Michael Bradley, a lawyer in Sydney. “It’s pretty much house arrest.” People who did not report ankle bracelets that stopped working could face a minimum prison sentence of a year, he added.

The Australian government had assumed that these former refugees and stateless people were necessarily a threat to the community and could not or should not be fully reintegrated, Mr. Bradley said.

“The idea that these conditions have any other function than to punish them — to basically impose a sanctions regime on them because they’re bad people — is a nonsense,” he said. “It’s a fiction.”

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