We helped asylum seekers challenge the Australian Government’s powers to indefinitely detain people in immigration detention.
In 1992, the Australian Parliament introduced mandatory detention of certain people in Australia without a valid visa, subject to a 273-day limit. In 1994, that limit was removed. An ‘unlawful non-citizen’ could then only be released from detention if they were granted a visa, or removed or deported from Australia.
By 2001, in the wake of the Tampa affair and the implementation of the so-called ‘Pacific Solution’, the harshness of Australia’s immigration detention regime was internationally renowned.
Between 2002 and 2004, we took on 11 cases for the release of people in immigration detention, challenging the practice of indefinitely detaining people who could not be removed from Australia.
In 2003, we represented 6 of those asylum seekers applying for release in the Federal Court in NAGA v Minister for Immigration & Multicultural & Indigenous Affairs. Our clients were from Iraq and Kuwait and had been in detention since 1999. Each had had their refugee application refused and had exhausted all avenues for review.
Our applications to the Federal Court relied on the decision in Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs, a 2003 case where the Court found it was unlawful to detain a person where there was ‘no reasonable likelihood’ of them being removed from Australia for ‘the reasonably foreseeable future’.
During the hearings the Minister conceded there was no real prospect of our clients being removed from Australia to their home countries, or to a safe third country. However, the Court was not convinced the decision in Al Masri was correct, given a number of conflicting Federal Court decisions. The Court concluded the ongoing detention of our clients was lawful.
Although the applications were denied, the clients were released into the community on ‘interim orders’ in 2003.
In August 2004, the High Court handed down its decision in Al-Kateb v Godwin, overturning Al Masri with the court split 4:3. The Court determined the Migration Act gave the Commonwealth power to detain people in immigration detention even when there were no reasonable prospects of their removal, and even if this resulted in indefinite detention.
After this decision, the Minister for Immigration reviewed the files of all long-term detainees. Six of our clients were granted bridging visas, allowing them into the community, but not permitting work or welfare payments.
Ahmed Al-Kateb, the stateless man who had brought the case against the Government said: ‘We [are] just walking in a big detention. And we are all the time worried that they will send us back to detention again… It’s like a death punishment.’
Challenging indefinite detention after Al-Kateb
The High Court’s slim majority decision in Al-Khateb was immediately met with criticism from lawyers, academics, journalists, politicians and civil society organisations. In response, we continued to highlight the injustice of indefinite detention.
With other advocacy groups, we persuaded Federal Members of Parliament of the injustice of indefinite detention, securing the release of all of our clients still in detention.
Fighting mandatory detention of children
In Minister for Immigration and Multicultural and Indigenous Affairs v B and B (2004), we represented Amnesty International Australia in the High Court, making submissions as a ‘friend of the court’ (amicus curiae) challenge and limit indefinite detention.
The Minister for Immigration was appealing a decision by the Full Court of the Family Court to release the children ‘B and B’ after finding the Family Court had jurisdiction over the welfare of children in immigration detention, including the power to release them.
Amnesty International’s submissions supported the Full Court’s decision and argued this approach gave effect to Australia’s international obligations under the United Nations Convention on the Rights of the Child (CRC), which strictly limits the circumstances under which a child can be detained.
However, the decision was overturned by the High Court, which found migration laws provided for the mandatory detention of both adult and children ‘unlawful non-citizens’, and the Family Court did not have jurisdiction over children in detention. Although the Court was not required to consider Australia’s obligations under international law, Justice Kirby found it was strongly arguable that the detention of the children B & B ‘was a breach of obligations imposed on Australia by international law’.
Advocating for health rights in detention
In 2016, we launched our Asylum Seeker Health Rights Project, a specialist program focusing on the healthcare crisis in immigration detention, including the harms inherent in indefinite detention.
With human rights and refugee groups, we backed Bills recommending positive change to the detention system. We highlighted Australia’s human rights abuses in immigration detention to the UN. And our reports, In Poor Health (2018) and Healthcare Denied (2021) stressed the significant harms of indefinite detention, securing media coverage. In mid-2023, we settled a landmark test case challenging the inhumane handcuffing of detainees in Australian immigration detention when trying to access medical care.
In November 2023, the High Court unanimously ruled indefinite detention is unlawful in the case of NZYQ v Minister for Immigration. Partner organisations the Kaldor Centre for International Refugee Law and the Human Rights Law Centre appeared as friends of the court to successfully support the arguments against indefinite detention. The decision overturned the judgement of Al-Kateb and required the immediate release of 149 people then held in indefinite detention.
With other asylum seeker and human rights organisations, including the Australian Human Rights Commission, we welcomed the High Court ruling. But the Federal Government soon rushed through restrictive visa conditions for the people released with the Migration Amendment (Bridging Visa Conditions) Bill, which we described as ‘indefinite surveillance’.
Further Reading
Jonathon Hunyor, The Guardian, ‘Australia’s immigration detention system is cruel and damaging by its very nature’, 28 October 2019
SBS News, ‘Medevac asylum seekers forced to wait years for medical treatment, report finds’, 6 December 2021
Jane Leibowitz, ‘Treatment of asylum seekers in detention an onshore problem too’, 2 November 2017.
