Australia’s practice of holding individuals in indefinite immigration detention is facing a legal challenge aimed at overturning a 20-year-old high court precedent that has resulted in the detention of people who cannot be deported.
Lawyers representing NZYQ, a stateless Rohingya refugee using a pseudonym, have presented their case to the high court, arguing that their client, aged between 28 and 30, could face lifelong detention unless the court rules that individuals can only be detained temporarily for the purpose of facilitating their deportation.
The case is scheduled to be heard in November and represents the first comprehensive review by the high court of the controversial 2004 decision in the Al-Kateb case. In that case, a majority of justices ruled that indefinite detention is permissible even when deportation is not possible.
The Human Rights Law Centre and the University of New South Wales’ Kaldor Centre for International Refugee Law have requested permission to make submissions in this case, asserting that the Al-Kateb decision has led to a steady increase in the average duration of detention.
Currently, individuals in immigration detention spend an average of 709 days in custody, with 127 people detained for over five years, many of whom are stateless or have protection claims in Australia that prevent deportation.
According to court documents, NZYQ arrived in Australia by boat in September 2012 but had his bridging visa revoked in 2015 due to a conviction for sexual intercourse with a minor. After serving a non-parole period, NZYQ was released from prison in May 2018 and placed in immigration detention. He was denied a safe haven enterprise visa on the grounds of being a threat to the Australian community.
In February 2023, the immigration minister, Andrew Giles, refused to exercise personal powers to allow NZYQ to reapply for a visa. The government acknowledges that there is currently no realistic prospect of deporting NZYQ.
NZYQ’s lawyers argue that the court must decide between an interpretation of the law that mandates the cessation of detention if removal is practically impossible or accepting that detainees must remain in detention for life if deportation remains unfeasible. They contend that the majority in Al-Kateb “failed to recognize” that temporary detention was a viable alternative.
They argue that curtailing fundamental rights requires explicit legal authority or must be deemed “necessary” by implication. They assert that if there is “no practical possibility” of deporting an individual, the Migration Act does not authorize their detention, referencing Justice William Gummow’s dissenting opinion in Al-Kateb.
In response, the Commonwealth argues that deportation is “not impossible” as the government is actively seeking countries to which NZYQ could be removed. The government also cites the potential for changing circumstances in Myanmar or a change of mind by ministers to grant a visa.
The Commonwealth contends that the Al-Kateb decision should not be overturned and suggests that NZYQ’s case rehashes arguments from that case in the hope of a different court decision.
Human Rights Law Centre’s acting legal director, Sanmati Verma, asserts that governments should not have the authority to detain individuals indefinitely based on intentions and hypothetical future events. She emphasizes the need to end the practice of detaining migrants and asylum seekers indefinitely.
Jane McAdam, director of the Kaldor Centre, asserts that indefinite detention is arbitrary and unlawful under international law and should only be used when absolutely necessary with no reasonable alternative available.
In December, lawyers attempted to overturn Al-Kateb in a case involving an Egyptian man, Tony Sami, but he was removed from detention after a decade while the legal challenge was underway.
In September, it was revealed that the Home Affairs Department, under former Minister Peter Dutton, was cautioned by an independent review in 2020 that immigration detention was “failing” to meet key objectives, including swiftly resolving individuals’ immigration status.
