Up to 100 people held in immigration detention have been released over the Christmas period, a move welcomed by advocates calling on Labor to accelerate its commitment to free those who pose a low risk to the public.
Lawyers for asylum seekers and people whose visas were cancelled under the Migration Act’s character provisions reported that dozens had been released every day since 23 December from detention centres including Villawood in Sydney and Melbourne Immigration Transit Accommodation in Broadmeadows.
Advocates believe that some releases may have been triggered by the federal government losing a full federal court case on 22 December, in which the court ruled that aggregate sentences should not trigger automatic visa cancellation.
William Levingston, a solicitor at Christopher Levingston & Associates, said his clients in detention estimated that 24 people were released on Tuesday from Villawood and 16 from Mita.
Levingston said the process was “bizarre”, with some detainees “surprised or ambushed” with paperwork announcing their release but not told what visas they were receiving.
The federal court heard that New Zealander Kate Pearson’s visa was automatically cancelled because she was sentenced to a maximum term of imprisonment of four years and three months in respect of 10 offences.
The court ruled that because Pearson’s was an aggregate sentence, not a sentence for one offence with a term of imprisonment of 12 months or more, her visa “was not amenable to mandatory cancellation”.
However, the court’s judgment still allows the minister to exert the discretionary power to cancel visas.
No orders have been made for Pearson’s release yet, and the government will not consider whether to appeal until orders are made.
A spokesperson for the home affairs department told Guardian Australia it was “actively considering the implications” of the ruling, including identifying “other visa cancellation decisions affected by the judgment, prioritising individuals in immigration detention”.
“Individuals in immigration detention where visa cancellation decisions are identified as having been invalidly made will be released from immigration detention as soon as possible.
“However, this is an involved process which could take some days to complete.”
Levingston said “hundreds” of detainees could be affected by the Pearson decision – although others reported an uptick in releases that seem unrelated to the case.
The government has been examining alternatives to immigration detention to clear what the home affairs department calls an “intractable” caseload of people in detention. In April, 61% of the 1,400 people in detention were there due to visa cancellation, while the average time spent in detention was 726 days.
In September the immigration minister, Andrew Giles, said the government was “committed to ensuring humane and risk-based immigration detention policies”.
“If there are no security or safety concerns, individuals should be living in the community until a durable solution is finalised,” he said.
Guardian Australia understands the most recent releases were triggered by the department, not direct ministerial intervention.
Immigration lawyer Ziya Zarifi said a large number of detainees had been released, but lawyers were “unsure whether they are being returned on their original visas or they are being released on a bridging visa”.
The principal solicitor at the Asylum Seeker Resource Centre, Hannah Dickinson, said the centre was aware of “more releases than we’ve seen in a very long time in the most recent couple of weeks – including people detained for significant periods”.
“It’s been really heartening to see the release of a lot of people whose detention was quite senseless, and years long … [and] to see many were able to be reunited with their families in time for end of the year.”
Dickinson said correcting the possibly “huge numbers of unlawful decisions” affected by the Pearson case must include rectifying family separation, and reversing the deportation of those removed due to that section of the Migration Act.
Alison Battisson, the director principal of Human Rights for All, said there had been “a reasonably significant number of releases” in recent months, calling it “a much, much more humane, legal and economically rational approach to immigration detention”.
Giles’s office has been contacted for comment.