The ruling in Al Masri led to the initial release of some detainees and was the decision that the Federal Government objected to in all subsequent similar cases.
It is useful to discuss the cases of Al-Kateb, Al Khafaji, Behrooz and Al Masri together as they each had an impact on one another. The High Court heard the first two matters together.
In the 2002 ruling of Al Masri (Al Masri v Minister for Immigration, Multicultural and Indigenous Affairs  FCA 1009 (15 August 2002)) it was found that Mr Al Masri, a stateless failed asylum seeker in detention must be released because the purpose of his detention was to effect a removal that was not foreseeable.
Prior to these landmark cases, mandatory detention had its first constitutional test in the case of Chu Kheng Lim (Chu Kheng Lim v Minister for Immigration  HCA 64). Lim’s case asserted that mandatory immigration detention was a contravention of Ch III of the Constitution. However, the High Court found that the system came within the aliens power in section 51 (xix) and that Ch III of the constitution was not contravened because the system did not include an infliction of punishment by a non-court.
Detention for life is lawful, conditions not relevant
The power to detain asylum seekers such as the men involved in these cases is provided by the Migration Act 1958 (Cth), Section 196 which states:
An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:
- removed from Australia under section 198 or 199; or
- deported under section 200; or
- granted a visa.
- To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
- To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.
Mr Ahmed Al-Kateb was born in Kuwait to Palestinian parents. This did not entitle him to Kuwaiti citizenship. In the absence of a Palestinian State, he was therefore a ‘stateless person’. After moving around the Middle-East in search of a permanent home, Mr Al-Kateb arrived in Australia by boat in December 2000, with no passport or visa. Upon landing he was detained under the Migration Act.
From June 2002 Mr Al-Kateb expressed a desire to depart Australia. After three years in detention and having been refused a protection visa, there was still no country in the world willing to receive Mr Al-Kateb.
After review and applications to the Minister for intervention, the matter ended up in the High Court (see Al-Kateb v Godwin  HCA 37) where essentially two main questions were addressed. The first being the interpretation of section 196 of the Migration Act and the second being whether there were any Constitutional grounds upon which to challenge Mr Al-Kateb’s continuing detention.
To the first question, the majority; Justices McHugh, Hayne, Callinan and Heydon, decided that there was no ambiguity to section 196. As they saw it, section 196 means that a person must continue to be detained until a visa is issued or they are removed from Australia. The legal consequence of this for Mr Al-Kateb meant a lifetime of detention. The minority, Justices Gleeson, Gummow and Kirby, took a completely contradictory view to this. They believed that section 196 was based on the fundamental provision that a person’s removal could actually be carried out. Therefore, it was the minority view that because no country would accept Mr Al-Kateb the purpose of section 196 had lapsed and his detention should cease.
On the second key question before the Court, the bench was also divided four to three. Overall the Constitution provides that a person can only be detained punitively if there has been a court finding of criminal guilt against the person. There are provisions for detention that is administrative ie, not punitive. The majority in this case found that Mr Al-Kateb’s detention was administrative and so, by definition, non-punitive. The minority did not agree and stated that there was no clear line between punitive and non-punitive detention. Essentially, the Court found that the Australian Parliament had created clear legislation allowing for lifelong detention of people seeking asylum. Therefore the High Court in this matter found no Constitutional error in keeping Mr Al-Kateb detained for his whole life. The Court’s literal interpretation left no room for the existing judicial findings that laws should not be interpreted in a way that detracts from the presumption of liberty.
Mr Al-Kateb was released from detention in 2003 after the Federal Court decision in Al Masri. Despite the finding in his own matter, Mr Al-Kateb was not re-detained and instead was granted a series of short term Bridging Visas. After some years of lobbying, Mr Al-Kateb was granted a permanent visa to remain in Australia.
Mr Al Khafaji is an Iraqi national who, in 1980 fled with his family to Syria. He arrived in Australia in January 2000 and was held in immigration detention.
The Department of Immigration and Multicultural and Indigenous Affairs found that Mr Al Khafaji did have a well-founded fear of persecution in Iraq based on his political opinion. However he was refused a protection visa because it was deemed that Syria could provide him with protection without the risk of refoulement to Iraq. The Refugee Review Tribunal (the RRT) affirmed that decision in November 2000.
Mr Al Khafaji requested the Minister exercise his discretionary power under section 417 of the Migration Act 1958 (Cth) (the Act) to grant him a protection visa. In February 2001 the Minister refused. After the RRT decision and also after the Minister’s refusal, Al Khafaji indicated on a number of occasions that he wished to be removed from Australia and sent back to Syria.
In September 2002, Mr Al Khafaji was still in detention and still willing to leave Australia. He put a case for habeas corpus to the Federal Court that his ongoing detention by the Immigration Minister under the Migration Act was no longer lawful. Justice Mansfield held that the detention power under sections 196 and 198 of the Act is impliedly limited and that for detention to continue there must be a real likelihood of removal in the reasonably foreseeable future. With no real prospect of removal evident, it was ordered that Al Khafaji be released from detention. In reaching this decision, Justice Mansfield referred to the precedent set by Justice Merkel in the case of Al Masri.
The Minister appealed to the Full Federal Court and this matter, along with Mr Al Kateb’s, were removed to the High Court to be heard together. (Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji  HCA 38)
The Al-Kateb ruling that indefinite detention was permissible under the Australian constitutionalso applied to Mr Al-Khafaji.
Mr Behrooz was detained at the Woomera Immigration Reception and Processing Centre and presented a case that conditions there were inhumane. His case came about after he and two others escaped from Woomera in 2001 and were charged under section 197(A) of the Migration Act (a crime which could incur a five year jail penalty). Mr Behrooz argued that his detention (which had been for around 12 months at the time) was in such harsh and inhumane conditions that it no longer had the character of that which would be expected of immigration detention. He asserted that the detention should not be legally authorised and therefore his escape was not a breach of the Migration Act (see Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs  HCA 36).
Behrooz tested the question of whether the Migration Act permitted detention under harsh or inhumane conditions. The case also questioned the Constitution in terms of whether detention in harsher conditions would be punitive and therefore could not validly be authorised except as a consequence of the exercise of the judicial power following a statutory offence. This would take such detention out of the administrative realm for the purposes of migration control and therefore show it to be punitive. After lodgements and appeals Behrooz was eventually permitted to present information to make his case that the conditions at Woomera were harsh and inhumane. Despite this the majority found that any such information would not assist in his case. The Court ruled that as he was in immigration detention and had no right to escape, there was no forensic purpose to his presenting any evidence of intolerable conditions. The Court found that conditions of detention cannot invalidate the grant and exercise of the power to detain in immigration detention.
The cases of Behrooz and Al-Kateb presented interesting questions of international law and how it should be interpreted in questions of the Australian Constitution. In dissenting from the majority in this case, Justice Kirby noted that in stipulating immigration detention the Australian Parliament has done so in line with the norms of ICCPR, in the absence of any statutory provisions to the contrary. Article 7 of ICCPR would not permit administrative custody that had physical or mental torture as a regular feature. The majority argued a much more literal view of domestic legislation and that it was the court’s role to stick to this and interpret this only.
Plaintiffs M61 and M69
Two Sri Lankan asylum seekers detained on Christmas Island challenged the processing of their claims and the eventual finding that they were not entitled to protection. Being applicants in an excised territory, M61 and M69 did not have access to the full refugee determination system as would be the case on the mainland. At the primary stage their applications for protection were refused by the Department of Immigration and Citizenship and then also by an ‘independent merits review’ conducted by a private contractor.
The High Court found unanimously that there had been an error of law and that the two men had been denied procedural fairness (Plaintiff M61/2010E v Commonwealth of Australia and Plaintiff M69 of 2010 v Commonwealth of Australia  HCA 41). In effect the High Court was saying that the refugee determination system as applied to one whole category of people (those in excised territories) was flawed. The government responded to this decision in January 2011 but did not abolish the dual system. Instead they added elements to make the two more alike and address the Court’s comments around fairness and due process.