Blog post by Júlia Zomignani Barboza, a PhD Researcher at Fundamental Rights Research Centre, Vrije Universiteit Brussel

In November 2023, the High Court of Australia ruled that indefinite immigration detention is unlawful in a landmark decision overturning its previous caselaw. This recent development, which should put an end to a long-standing human rights violation in Australia, deserves attention. This short article thus starts by explaining the practice of indefinite detention in Australia before turning to the Court’s decision. It then presents the main reasons behind the Court’s ruling and, finally, reflects on some of the challenges that may be expected in the future because of this decision.

The practice of indefinite detention in Australia

Before delving into the High Court’s decision, it is important to clarify why certain migrants were detained indefinitely in Australia in the first place. This is because Australia’s Migration Act prescribes the mandatory detention of migrants found in the territory without a visa. The same Act also prescribes that a migrant will only leave detention if they are either granted a visa or if they leave Australia. For some migrants, however, it is unlikely that either of these events will happen. This is often the case for migrants who cannot be returned to their own country either because of the risk they will face there or because they are stateless, but who are not granted international protection in Australia because they are not deemed to be of ‘good character’. In Australia, being of ‘good character’ is a requirement that needs to be met by all those who wish to be granted a visa in the country. In practice, someone will not be considered to meet this requirement when they have been involved in criminal activities or are considered a security risk.

In the Al-Kateb case decided in 2004, the High Court confirmed that the correct interpretation of the applicable provisions of the Migration Act was that migrants would remain in detention until one of the abovementioned outcomes occurred (even if they were unlikely to occur), which for some migrants meant indefinite detention.

In the almost 20 years between the 2004 Al-Kateb decision and its overruling last November, the practice of holding migrants in indefinite detention was challenged in Australian courts multiple times. Some of these challenges were brought following amendments to the Migration Act that seemed to hint at the fact that indefinite detention was not the correct interpretation of the Act’s provisions (an analyses of these changes and associated caselaw can be found in this longer contribution). The position of the High Court, however, remained unchanged, and the use of indefinite detention continued. This led some to argue that Australia’s detention system was Kafkaesque and that migrants subjected to it were “totally screwed”.

The High Court’s decision

In 2023, the High Court was once again asked to rule on the lawfulness of indefinite detention in a case decided in November concerning a stateless Rohingya Muslim born in Myanmar. The applicant had applied for protection (asylum) in Australia as he feared persecution in Myanmar. While Australian authorities recognised that he would be at risk in Myanmar and could not be returned there, they denied him protection as he was convicted of a sexual offence against a child, in Australia. He was thus placed in indefinite detention after his release from prison.

In short, the High Court was asked two questions. First, whether the Migration Act allowed the indefinite detention of the concerned migrant even if his return could not take place (as he was stateless and at risk in Myanmar). Second, whether indefinite migration detention was compatible with Australia’s Constitution.

When considering the first question, the High Court decided not to reassess whether the correct interpretation of the provisions of the Migration Act would lead to the indefinite detention of the concerned migrant – it was clear from the text of the Act that it would.

In response to the second question, however, the Court found that indefinite detention was incompatible with Australia’s Constitution, leading to the “long overdue” fall of its previous 2004 Al-Kateb decision in this regard. To reach its decision, the High Court relied on previously established constitutional principles that determined that detention is penal or punitive in character. In view of this, detention for non-punitive (criminal) reasons must be exceptional and limit itself to what is necessary to achieve the legislative objective of the detention. In migration cases, the objective of detention would be either to remove a migrant from Australia or keep them outside the Australian society while waiting for a decision on a visa application. If the objective is unachievable (for example, because there is no pending visa application or because there is no prospect of removal taking place as the concerned migrant is stateless or would be at risk upon return), then the detention loses its purpose and is unlawful.

Thus, when summarising its findings, the Court held that the applicant’s detention was indeed incompatible with the Constitution “because the plaintiff’s detention was not reasonably capable of being seen as necessary for a legitimate and non-punitive purpose in circumstances where there was no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future.” This finding has been interpreted to mean that while the Migration Act does grant the executive power to detain a person to pursue their removal from Australia, this power does not extend to situations where there is no prospect of the removal taking place.

What happens now?

After the High Court’s ruling, all those unlawfully detained should be released. Nevertheless, in its decision, the High Court noted that release from unlawful detention does not grant someone the right to remain in Australia. Indeed, in the days following the Court’s ruling, dozens of migrants were released without a visa. Less than 10 days after the decision was made, however, a new amendment to the Migration Act was enacted to create a new visa regime especially for those who were released from detention due to the November ruling.

As many of the released migrants are likely to have a criminal past, this new visa regime includes mandatory conditions such as notifying authorities of the persons who reside with the visa holder and of any interstate travel as well as obtaining prior authorisation before performing any work or regular organised activity involving more than incidental contact with a minor or vulnerable person. Furthermore, unless the concerned migrant can show that they do not pose a risk to the community, they are also subjected to a curfew from 10pm to 6am and mandated to wear a monitoring device.

Consequently, while release from unlawful detention and regularisation of the situation of these migrants are both welcome developments, this new regime raises at least two important questions. First, considering that most of the conditions imposed are mandatory and thus apply regardless of the personal situation of the concerned visa holder, they may constitute a disproportionate interference with concerned migrants’ human rights, such as the right to private and family life and the right to freedom. Indeed, challenges against these conditions already started making their way to Australian courts. Second, as this new visa regime is a “removal pending” one, it implies that Australia will continue its efforts to remove such visa holders. However, for some, especially those who are stateless, removal may never be a possibility. Indeed, some of the released migrants had already spent years in detention before their release. Thus, one wonders what will happen to these individuals in the long run. Will they forever be subjected to strict conditions on a pending removal visa? If their return becomes possible after decades living in society in Australia, will they still be removed? Or will they be given a chance to rehabilitate in the same manner as Australian nationals who leave prisons?

These and many other questions may appear before Australian courts as the consequences of these recent developments unfold. In the meantime, the High Court’s ruling can be celebrated as “an important and long-awaited victory for human rights.”

The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.