The case of Al Kateb v Godwin concerned the power of the Australian Government to indefinitely detain asylum seekers.
PIAC represented five Iraqi and one Kuwaiti asylum seekers in applications to the Federal Court for release from migration detention. They claimed that they were being indefinitely held in detention. Their applications relied on the decision in Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs. That case had established that where there is ‘no reasonable likelihood or prospect’ of a person being removed from Australia in the ‘reasonably foreseeable future’, it was unlawful to continue to detain them.
During the hearing of the matters, the Minister conceded that, at least at the time, there was no real likelihood or prospect of PIAC’s clients being removed from Australia in the reasonably foreseeable future. Most of them had been in detention since 1999, awaiting removal from Australia for periods of up to three years since the exhaustion of domestic legal processes related to their refugee applications. PIAC’s clients were released into the community on interim orders in April 2003.
In August 2004, the High Court handed down its decision. The Court overturned Al Masri and decided that the Migration Act 1958 (Cth) does give the Commonwealth government the power to detain people in immigration detention, despite the fact that there are no reasonable prospects of their removal. This was the case even if it resulted in indefinite detention. The decision was by a majority of 4:3, with three members of the High Court finding that the relevant section of the Migration Act did not authorise indefinite detention, and should be read so as not to infringe fundamental human and common law rights.
After this decision, the Minister for Immigration reviewed the files of all long-term detainees. Many were granted bridging visas, which allow them to remain out of detention while still being subject to removal. Six clients were granted bridging visas. They received no social security and were not permitted to work. They were reliant on charity.
Another of PIAC’s clients, who had been in detention for over six years, and who could not be removed to India, was granted a bridging visa.