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Al-Kateb v Godwin (2004) 219 CLR 562

Updated: Apr 2, 2023

Callinan J, Gleeson CJ, Gummow J, Hayne J, Heydon J, Kirby J, McHugh J

The judicial power of the Commonwealth - Immigration detention - Indefinite detention - section 51 (xxvii)

Facts: Ahmed Ali Al-Kateb was a stateless Palestinian born in Kuwait in 1976. He came to Australia in December 2000 without a passport or visa. The Australian Government sent him to an immigration detention centre because he arrived without his passport or visa. Although he applied for a protection visa the following month, his application was unsuccessful. Although the Refugee Review Tribunal (RRT) revised the decisions behind the refusal, they affirmed Al-Kateb's rejected application—furthermore, an application to the Federal Court of Australia to review the outcome reached by the RRT. Unfortunately, the application to the Federal Court of Australia was unsuccessful. Therefore, in June 2002, Al-Kateb informed the Department of Immigration and Multicultural and Indigenous Affairs that he wanted to leave Australia to relocate to Kuwait or Gaza. Regrettably, despite his application in writing to move to Kuwait or Gaza, the relocation was unsuccessful due to failed international negotiations.

In addition to the failure to relocate Al-Kateb, in April 2003, the Federal Court (von Doussa J) dismissed an application from Al-Kateb, which declared his unlawful detention under habeas corpus (to secure the person's release unless lawful grounds require their detention). The judge ruled that there was no real likelihood or prospect of Al-Kateb's removal in the reasonably foreseeable future.

Law: The case of Al-Kateb v Godwin (2004) concerns a section of the Migration Act 1958 (Cth) which required that if an officer of the Commonwealth reasonably suspected that a person in the migration zone was an unlawful citizen to proceed to detain the person. Also, section 196 required an illegal citizen detained under s189 to go to immigration detention until they were deported or granted a visa under s200. However, under these laws, what happens if a person is stateless?

Holding: By McHugh, Hayne, Callinan and Heydon JJ, Gleeson CJ, Gummow and Kirby JJ dissenting, that sections 189, 196 and 198 authorised and required the detention of an unlawful non-citizen even if his removal from Australia was not reasonably practicable in the foreseeable future.

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