Iranian asylum seeker Ned Kelly wins High Court appeal

An asylum seeker who has spent over a decade at detention centres across Australia has won a High Court appeal that could pave the way for ending his indefinite detention.

The Iranian man who legally changed his name to Ned Kelly Emeralds, in a nod to the 19th century Australian outlaw, remains detained at Yongah Hill Detention Centre in Western Australia.

Mr Emeralds, who is mute due to a suicide attempt while in detention, celebrated the High Court win with a series of posts to his social media followers.

"No more INDEFINITE DETENTION. Won my case in the High Court. Minister @karenandrewsmp used her personal powers to stop me being free in the community 2021," he wrote on X, formerly known as Twitter, hours after his victory.

Australia is one of the few western nations not to set time limits on immigration detention.

Latest figures show the average stint is 711 days, or almost two years.

Mr Emeralds was initially found to be owed protection by Australia in 2016 but his visa was denied and he has been navigating the tribunal and courts system to be given refugee status.

A Federal Court judge in 2021 ordered that Mr Emeralds, who sought asylum by boat in July 2013, be taken to Nauru and that he live with friends in Perth until that occurred.

But former immigration minister Karen Andrews exercised her personal powers to prevent him from being removed from Australia or housed with his friends. 

On the day the home detention order was to come into effect, Nauru also advised Australia it would not accept him.

The Morrison government then appealed against the court's ruling.

On Wednesday the High Court found, by majority, the Federal Court's full bench did not have jurisdiction to hear the government's appeal. 

"The course of the proceedings took many twists and turns because the minister exercised a statutory power and the Commonwealth parties changed their position more than once," the judgment said.

Mr Emeralds noted that despite the victory "this still doesn’t mean that I’m free".

The Federal Court will hear his challenge to his ongoing detention next Tuesday.

Sanmati Verma, managing lawyer at the Human Rights Law Centre which is representing him, said Wednesday's judgment "gives pause to consider the lengths to which governments will go to deprive people of their freedom".

"We should be disturbed by the Australian government's ongoing commitment to indefinite, potentially lifelong detention."

Mr Emeralds urged his supporters to continue advocating for his release.

"Despite being kept in a cage and denied release for over 10 years, I continue to stand up so I might one day live a life in freedom," he said in a statement.

"My case shows the unacceptable powers that ministers have over the hopes, dreams and possibilities for our lives - if the minister wants it, you can be locked up for a decade, sent to Nauru or given a permanent visa."

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