Indefinite detention revisited?

High Court (Full Court): a non-citizen held in immigration detention invited the Court to draw the inference that there was no real prospect or possibility that he would be removed from Australia. Based on that inference, he also invited the Court to adopt the view of the minority in Al-Kateb, to the effect that his detention was unlawful.

Summary

The non-citizen (plaintiff) become an unlawful non-citizen and was taken to immigration detention. He then made a number of visa applications, but they were all refused.

The relevant legislative provisions were summarised by the judgement of Kiefel CJ, Keane, Nettle and Edelman JJ as follows:

Section 189 of the Migration Act 1958 (Cth) ("the Act") provides that an officer who knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen must detain the person. Section 196 of the Act requires that an unlawful non-citizen detained under s 189 be kept in immigration detention until he or she is removed from Australia under s 198 or s 199, deported under s 200, or granted a visa. Section 198(6) of the Act provides that an officer must remove an unlawful non-citizen "as soon as reasonably practicable" if the non-citizen is a detainee and an application for a visa has been refused and finally determined.

The plaintiff subsequently made a written request to the Department that he be removed from Australia. In order to try to find a country that would accept the plaintiff, the Department sough to ascertain his identity but, according to the Court, the plaintiff gave the Department several contradictory accounts about his identity which meant that, unless and until the plaintiff decided to disclose his real identity, it was practicable impossible for his identity to be established.

As a result of his identity not being established, no countries were keen to accept the plaintiff, despite the Department's numerous attempts to negotiate re-settlement with various countries.

As explained by Their Honours:

3. The plaintiff commenced proceedings in the original jurisdiction of the Court seeking a declaration that his detention is unlawful on the ground that it is not authorised by ss 189 and 196 of the Act. He seeks the issue of a writ of habeas corpus, or mandamus, requiring his release from custody.

The plaintiff argued that, given that he had been detained for 9 years and Australia had not found any country that would be willing to accept him, the Court should draw the inference that there was no real prospect or possibility that he would be removed from Australia.

Further, based on that inference, the plaintiff invited the Court to adopt the view of the minority decision of the High Court in Al-Kateb, to the effect that his detention was unlawful.

Although the Court delivered two judgements, they essentially concurred. The other judgement was handed down by Bell, Gageler and Gordon JJ.

In summary, the Court held as follows...

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