JOHOR BAHRU – Sent to the gallows for murder by the Malaysian Federal Court almost a decade ago after exhausting all avenues of appeal, former police corporal Sirul Azhar Umar now walks freely in Australia based on a legal technicality.
His current release from what was supposed to be indefinite detention in Australia is the result of a court case initiated by a Rohingya immigrant.
NZYQ, a stateless Rohingya individual, arrived on Australian shores in 2012 and was held in immigration detention until being granted a bridging visa in 2014. Two years later, NZYQ pleaded guilty in an Australian court to a crime against a 10-year-old child and received a five-year prison sentence.
During his incarceration, Australian authorities recognised NZYQ as a refugee due to fears of persecution if he were to return to Myanmar. However, his conviction prevented him from satisfying the criteria for a protection visa.
Facing the prospect of lifelong detention in Australia with no countries willing to resettle him, NZYQ found an unexpected path to freedom.
Detention in Australia only for punishment, preparing for deportation, entry into country
Previously, the case of Al-Kateb v Godwin guided Australian immigration law, which allows authorities to continue detaining “an unlawful non-citizen in respect of whom there was no real prospect of removal”.
In Sirul’s case, the former police commando faced indefinite detention as he was unlikely to be granted a visa to Australia due to his murder conviction in Malaysia, but he could not be sent back to his home country as Australian law would not allow the deportation of an individual back to a country where they could be sentenced to death.
However, during NZYQ’s challenge to the law, the Australian High Court found that the legal system would only allow for detention as a means to criminal punishment or in the case of immigration matters, to detain an individual for deportation, or until they are granted an entry visa.
“Applying that principle in circumstances where there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future, it cannot be said that, objectively determined, the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community pending the making of a decision as to whether or not they will be allowed entry,” the high court judgment read.
Nevertheless, despite the ruling that immigrants in such a predicament can no longer be held in detention, the high court warned that they are not necessarily given the right to remain, as they still remain open to deportation.
“Release from unlawful detention is not to be equated with a grant of a right to remain in Australia.
“Unless the plaintiff is granted such a right under the Migration Act, the plaintiff remains vulnerable to removal,” the judgment added.
Last week, in a bombshell interview with Al Jazeera’s 101 East, Sirul denied responsibility for the murder of Mongolian national Altantuya Shaariibuu, claiming he was merely a scapegoat.
In the 25-minute programme streamed on YouTube, Sirul expressed hopes to be accepted by the Australian community and wishes to build a life with his family there.
However, Sirul’s freedom may be short-lived as the Australian government is currently in the works to enact legislation that would allow detention against those released as a result of the high court ruling. – November 29, 2023
