BORIS ASTORGA walked free on Monday after a landmark Federal Court ruling on the Government's right to revoke some permanent residency rights on character grounds. He had spent four years in prison and another three in immigration detention.
Mr Astorga, 33, who came to Australia as a nine-year-old in 1985, fleeing persecution in Pinochet's Chile, is one of 15 detainees released since the Full Federal Court ruling in Sales v the Minister for Immigration and Citizenship last Thursday.
The swift release has raised the possibility of a change in government policy to character deportations. The previous government took the hardline approach of deporting anyone who had served a prison sentence of more than one year, no matter how long they had lived in Australia.
In 2004, it deported Robert Jovicic, then 38, to Serbia despite the fact he had lived here since he was two. In February, the new Minister for Immigration, Senator Chris Evans, overturned the decision and issued a permanent residency visa.
Mark Goudkamp, of the Refugee Action Coalition, said the character detention provisions represented a double jeopardy for permanent residents who had served their time. "I know people who have been in immigration detention longer than they were in prison," he said.
The court ruling has led to 15 of 57 character detainees released from detention in Sydney, Melbourne and Perth since Thursday.
Mr Astorga said a Villawood officer met him about 2pm on Monday. "[I was told] I was being released because another detainee won his case in court. I was out by 6pm. I have been released under a permanent visa, but I am still a danger of going back to detention if the Government decides to appeal and they win.
"I don't really feel like I am out; it feels like I am on a day trip."
Mr Astorgia said his problems with the law began after he was in a serious car accident which left him in a coma for weeks and with permanent brain damage.
"I sense a difference in my concentration ever since; I can't self control my emotions, all my charges and criminal history come after the car accident," he said.
When he completed his four-year prison sentence, he was taken into immigration detention to be deported to Chile on character grounds despite having lived in Australia for more than 20 years.
"I came from Chile when I was nine years old; I didn't want to go back. Too many bad memories."
He has a long-term girlfriend and a child from a previous relationship in Australia.
An immigration lawyer, Michaela Byers, said the Federal Court decision was a technical one that affected anyone holding a transitional permanent visa.
These were permanent residents who arrived in Australia before September 1, 1994, with an entry permit. When the visa system was introduced on September 1, 1994, they were all deemed by law to hold a transitional permanent visa.
"The Sales decision says that under section 501 [of the Migration Act], visa cancellation can only apply to people with visas 'granted' after September 1, 1994, and as transitional permanent visas were not 'granted', they cannot be cancelled under section 501," Ms Byers said.
The real question was whether the Government would challenge the decision.
A government inquiry into the visa cancellation of the Indian doctor Mohammed Haneef on character grounds is due to be tabled in September. A spokesman for the minister has said previously the Government would wait until then to consider changes to the Migration Act.