Peter Dutton demands immigration minister Andrew Giles resign as another person released from detention

<span>Photograph: Mike Bowers/The Guardian</span>
Photograph: Mike Bowers/The Guardian

Peter Dutton has called on the immigration minister, Andrew Giles, to resign, as fallout from the high court decision on indefinite detention continues with another release ordered by the federal court.

On Thursday the federal court ordered the government to immediately free the Iranian asylum seeker Ned Kelly Emeralds, who spent a decade in immigration detention, the first release ordered since the new high court precedent that indefinite immigration detention is unlawful.

In what he had earlier called a “particularly disturbing case”, Justice Geoffrey Kennett found Emeralds’ detention was unlawful because there was “no real prospect” of his deportation “becoming practicable in the reasonably foreseeable future”.

Related: Labor blames Peter Dutton’s decisions as immigration minister for ‘mess’ of indefinite detention

The ruling brings to at least 142 the number of people released as a result of the high court’s landmark NZYQ decision handed down earlier in November.

Bitter political fallout from that decision continued in question time on Thursday, with the opposition leader, Dutton, attempting to suspend standing orders to call on Giles to resign over the government’s handling of the NZYQ case.

Earlier in question time, Giles deflected a question about why the government conceded on 30 May it was impossible to deport NZYQ before attempts to deport him to six countries. Giles said only that the government had “vigorously defended” the case.

Dutton cited the 30 May concession in a list of what he said were Labor failings, arguing that fact was agreed “before all resettlement options were exhausted and led directly to the loss of the case”.

Dutton also incorrectly claimed that the high court’s reasons “made clear he was only required to release the applicant NZYQ”. This failed to acknowledge that the new constitutional limit on indefinite detention applied beyond the plaintiff NZYQ.

Giles responded that the decision “required the release of individuals in similar circumstances”. He said questions suggesting otherwise were “extraordinary”, quoting the former Liberal attorney general George Brandis to suggest the opposition was attacking the rule of law.

Earlier on Thursday the shadow home affairs minister, James Paterson, argued that not all those released were in the same circumstances, suggesting people convicted of lesser offences may have been able to be resettled and therefore did not need to be released.

The Emeralds result could prompt re-evaluation of the lawfulness of detaining a person in difficult cases where deportation is not possible but the government believes a lack of cooperation with authorities by the detained non-citizen is to blame.

Emeralds arrived in Australia by boat in 2013 and has been detained since that time. According to the Human Rights Law Centre, which represents him, Emeralds was detained while his protection visa application was being processed; he has not had a visa cancelled nor been convicted of a crime.

In 2016, Emeralds was found to be owed protection by one officer of the Department of Home Affairs. A second officer refused his application for a protection visa in 2018 on the basis he did not have a well-founded fear of returning to Iran.

During the 23 November hearing Kennett noted that “a decade is an extraordinary amount of time to spend in detention” notwithstanding that he had a visa application on foot. The application itself took an “extraordinarily long time to resolve”, he said. “It is a particularly disturbing case.”

Matthew Albert, Emerald’s counsel, told the hearing his client had tried to kill himself in detention, vowing: “I will not go back to be tortured and killed by a regime I despise.” In one incident in 2015 Emeralds injured his neck, after which he was left mute.

Albert submitted that there was no real prospect of Emerald being deported: first, because he had no travel document after his Iranian passport expired; and second, because Iran has a policy of not accepting involuntary return, even of its citizens.

Greg Johnson, counsel for the commonwealth, said Emeralds was seeking to “ride on the coattails of the recent order” of the high court.

Johnson submitted that, unlike NZYQ, in which the impossibility of deportation was agreed by the parties, in Emeralds’ case this was in dispute because it might be possible to deport him if he met Iranian officials or gave them information to get a new travel document.

Emeralds had refused to cooperate with Iranian authorities because his parents and siblings are still in Iran and would be placed at risk if authorities knew he had sought asylum, Johnson said.

Kennett said Emeralds appeared to have an “entrenched state of mind” and the evidence suggested his “intransigence” was “completely genuine”.

Emeralds said: “Tonight I will sleep in my own bed. When I wake tomorrow, I will be able to decide where I go, what I do, who I see. This is basic freedom, it is something you and I share. I haven’t had this for over 10 years.

“Over 10 years ago, I came to Australia to seek protection from torture in my country, and instead I was tortured. I had no way to escape. I could not go home, and the government chose not to release me. Nobody should be asked to choose between their life and their freedom. What happened to me should not have happened, and it should not happen to anyone else.”

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