Said Imasi has filed in high court over 2004 Al-Kateb v Godwin ruling, which effectively legalised indefinite ‘administrative detention’

This article is more than 1 year old

This article is more than 1 year old

A landmark immigration case that effectively enabled indefinite detention in Australia is facing a high court challenge on behalf of a stateless man who has been locked up for nine years and has almost zero prospect of being released.

Lawyers for the detainee, who does not know where he was born and has no country that will claim him, are seeking to have the 2004 Al-Kateb v Godwin case reopened.

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Lawyer Alison Battisson, of Human Rights For All, said they hoped this “will be the case that starts the process to end arbitrary, ongoing detention for indeterminate periods of time in Australia.”

“It’s arbitrary administrative detention, but we say it’s starting to infringe on the separation of powers between punitive, which courts can do, and administrative, which the executive can do.”

In 2004 a four-three majority of the high court ruled on Al-Kateb v Godwin, effectively finding that a court was only required in the instance of detaining a person if that detention was punitive. A person could be sent to “administrative detention”, such as that required to process and carry out a deportation, by the executive, and for as long as was required to resolve it.

The judges were divided. Chief Justice Murray Gleeson, Bill Gummow and Michael Kirby rejected that a minister could detain someone indefinitely purely because they couldn’t be deported but a majority disagreed with them – although one of those, Michael McHugh, reportedly labelled it as evidence that Australia needed a bill of rights.

The result has been the alleged indefinite detention of asylum seekers and others termed “unlawful non-citizens”, such as a stateless man Said Imasi, who has been in immigration detention for almost nine years.

Imasi told Guardian Australia he just wanted a country to accept him, and to “want me to be in their country”, noting Canada’s recent resettlement of Saudi teenager Rah Al-Qunun.

“Being stateless is awful, it’s the worst feeling,” he said. “When you don’t have documents it’s like you don’t have legs, you don’t have rights in the world. You feel tortured every day.”

The submission on Imasi’s case said that while the Australian government did not accept that Imasi was stateless, it did agree “there is currently no third country willing to accept him as a national or as a person with a right of entry”.

Imasi is held in Villawood, Sydney, and his lawyers have told the high court there was “no real possibility, prospect or likelihood of the plaintiff being removed from Australia, at any time”.

Imasi’s story echoes that of Ahmed Al-Kateb, who arrived in Australia by boat, stateless, and after his refugee claim was rejected he pleaded to be removed from immigration detention and the country of Austraia, but no nation would take him.

Imasi has previously told his story to Guardian Australia. He believes – but does not know – that he was born in the Canary Islands and was taken to the Western Sahara, which is a disputed territory, as a newborn baby. In January 2010 he arrive in Melbourne by plane, having travelled on a Norwegian passport which he destroyed before presenting himself to immigration as a “citizen” of Western Sahara, according to court documents filed by his lawyers.

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Imasi had a residency permit for Norway which expired in September that year, six months prior to which he asked the immigration department to remove him from Australia. After the Norwegian permit expired he reapplied but was rejected.

He has not been the subject of any adverse security assessment and has no pending applications before the Australian government, having exhausted his appeal and review rights.

The case argued Imasi’s detention was punitive in its indefinite length.

The Al-Kateb case, his lawyers submitted, “authorised the continued detention of an unlawful non-citizen even in circumstances where his removal from Australia was not reasonably practicable in the foreseeable future”, and that case law since the finding had reaffirmed that detention must be seen as necessary for the purposes of deportation and limited to the time necessary to do it.

The difference with Imasi, however, was there was no reasonable prospect he would be removed from Australia “during the course of his natural life”, the submission said.

Imasi’s lawyers argued there were three possibilities:

That the Al-Kateb ruling couldn’t apply in such a distinct and more extreme case, where removal of the detainee is not likely to ever happen.

That two legislative amendments – allowing community detention orders and ministerial discretion to grant any visa – mean the Al-Kateb ruling no longer governs the construction of the Migration Act.

That the Al-Kateb case was wrong and should be reopened.

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The government is not yet required to file its submissions but at a hearing last year its lawyer said there were legal differences in the cases, including statements about statelessness. She also noted it was agreed the government was “presently taking steps to identify countries that they may send the plaintiff to”.

In a separate submission, the Australian Human Rights Council said Imasi was not claiming a right to be released.

“The plaintiff has no right to resist removal from Australia (should it become practicable), but it does not follow that he is not entitled to be free from executive detention,” it said.

Imasi said being in detention was “worse than a life sentence”.

“You have no name, you have no hope,” he said.

“People with a life sentence in prison, like the Bali Nine, were helping in prison or doing something, but here you get nothing, not even study. The best of my time is gone, 10 years of my life is gone.”