Al Kateb v Godwin Case Summary PDF

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Al Kateb v Godwin (2004) Background - The Migration Act 1958 (Cth) provides that ‘unlawful non-citizens’ that are those individuals who have come into Australia without permission, will remain in detention until the occurrence of one of the three events: 1. Release of detention upon the grant of visa 2. Deportation 3. Removal from Australia at their own request or upon the rejection of their attempts to secure a visa Facts: -

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Al-Kateb was a stateless man who was birthed by Palestinian parents in Kuwait He had arrived into Australia in 2000 without a Visa He was taken into Immigration detention as he had not been a lawful citizen In this detention facility he had applied for a Visa His application had been rejected From his rejection he wrote to the Minister requesting to be removed to Kuwait or Gaza His removal did not take place as an inability to obtain the necessary co-operation from Gaza or Kuwait, as Kuwait did not accept him and Gaza was facing a political situation The Federal Court held that there was no real likelihood or prospect of removal of Mr Al-Kateb in the reasonably foreseeable future

Issues: - There are a few issues in this case, these include:  Whether the provisions of the Migration Act allows a person to be detained if they have no prospect of being removed from Australia  The other issue was whether the indefinite detention for migration purposes infringed on Chapter III of the Australian Constitution: with the question of law being:  Whether detention is lawful under the Migration Act 1958  Whether detention is temporally limited by purpose of removal  Whether requirement to remove as soon as reasonably practicable implies time limit on detention  The terms of either being “detained” or be “deported” means that there is an ambiguity in the Migration Act  If this is the case, there needs to be a presumption that parliament would not intend to rid us of our common law rights and that Parliament would not intend to go against international law

Judgments & Conclusions - The overall decision was reached by majority 4:3  4 judges: McHugh, Hayne, Callinan and Heydon JJ  majority  3 Judges: Gleeson, Gummow and Kirby JJ  dissented - Held that the Migration Act did not permit indefinite detention

Did ambiguity in the Migration Act allow an interpretation in line with International Law Hayne J - Was the leading judgment for the majority for the issue of whether the Migration Act allowed people in the same position as the plaintiff to be detained indefinitely - His reasoning included the statement:  “… the most that could ever be said in a particular case where it is not now, and has not been, reasonably practicable to effect removal, is that there is now no country to receive a particular non-citizen whom Australia seeks to remove, and it cannot now be predicted when that will happen” - In saying this statement, he intended that the removal or deportation of individuals is highly uncertain - As the interpretation of the Act cannot proceed that the assumption of removal is always possible, he stated:  “… even if, as in this case, it is found that ‘there is no real likelihood or prospect of [the non-citizen’s] removal in the reasonably foreseeable future’, this does not mean that continued detention is for the purpose of subsequent removal - In his reasoning it is evident that there is uncertainty within the Act which needs be amended in order to have a better understanding of this legislation, and how to act accordingly - However, he stated that there is no ambiguity in this section and that these noncitizens can be held in detention. His main argument was the uncertainty that occurred from this Act, as stated previously McHugh J - He stated that there was no ambiguity within the act - As the languages in the section clearly identified that the required indefinite detention of Al-Kateb - He noted that one of the requirements of the people in s198 stating that “remove as soon as reasonably practicable” was clearly directed at limiting the detention of the non-citizen to as little as necessary, not having it overstayed - He also stated that this section did “not mean that the detention… is limited to a maximum period expiring when it is impracticable to remove or deport the person” - Thereby, his judgment is that there is no ambiguity in the section, however there is an implied minimum limit with no maximum period of detention being identified - He had also stated that “the words of the three sections are too clear to read them as being subject to a purposive limitation or an interion not to affect fundamental rights” - He also agreed with Hayne J in stating that there is a frustration simply because there is not a foreseeable future

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Even with his judgement of the future he stated: “Whether or when it occurs depends largely, if not entirely, upon not only the course of events in the Middle East [his preferred destination being Gaza] but also upon the willingness of other countries to receive stateless Palestinians” This indicating that although there is no reasonably foreseeable future, this does not mean that the removal will never occur

Heydon J - His judgment is in agreement with Hayne J Callinan J - Was in the majority judgment had also discussed the purpose of the detention relative to the plaintiff’s situation in obiter dicta - He held that there had not been any ambiguity in the provisions - He stated that the test for whether these provisions still apply is whether the minister intend to remove the unlawful non-citizen from the country - From this test, your Honour stated that there is a given right to have Mr Al-Kateb detained as long as there had been intention to eventually release the plaintiff, which was evident in this situation

Gleeson CJ in dissent - His honour was in dissent and reasoned that there was an ambiguity as they had no idea what to do with Mr Al-Kateb given the current situation, and the limitation on the Act in his case - He also stated that there are some constraints in this situation, however, Mr Al-Kateb should not be just let go from his detention - He stated that:  The courts “do not impute to the legislature an intention to abrogate or curtain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language” - In saying this, he came to the conclusion that the provisions for the requirements of un-lawful citizens to be detained had been ambiguous, especially in the situation of Al-Kateb - As it had become impossible to meet these requirements for the reason as to why he had been detained in the first place - The ambiguity lied in that the law was not clear on whether the ending result would be that the detention is suspended until the purpose comes again, or that the detention will continue indefinitely for Mr Al-Kateb - This section had a large spectrum, which made it be ambiguous in the plaintiff’s case as it did not take into account the situation of the plaintiff as the requirements were not able to be fulfilled by him - In his reasoning he stated:  “In making that choice I am influenced by the general principle of interpretation stated above. I am also influenced by the consideration that the detention in question is mandatory, not discretionary. In a case of uncertainty, I would find it

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easier to discern a legislative intention to confer a power of indefinite administration detention if the power were coupled with a discretion…” In saying so, he found that with a proper construction of the provisions stated in the Act would not permit Al-Kateb’s detention to continue indefinity. This situation brought upon the courts a choice between suspension of detention or indefinite detention Thereby, he stated that the provision was ambiguous

Overall - The overall, the majority judgment held that there had not been ambiguity within the provisions as these had been clearly stated.

Had there been power under Chapter III of the Constitution for indefinite detention by the Executive All the judges had discussed this issue, however, only three judges found it necessary to make a final decision on the issue. The three judges from majority, came to the same conclusion that the detention scheme had been constitutional. Majority - To help answer this issue the majority looked at the position of the High Court in the case of Lim - As the executive is authorised under the ‘aliens’ power of the Constitution to detain an unlawful non-citizen for the purpose of expulsion or detention - This case demonstrated that the executive does have the power to detain a person under the Constitution, and does not have the power interrupted by the limiting factor of Chapter III of the Constitution In the majority’s judgment to demonstrate that there is no conflict within the Constitution, they examined whether the unlawful detention of the non-citizens is punitive in nature. This is vital as if it is held that the executive were acting punitively then this would breach Chapter III, as this outlines the power of the Judiciary in this section. Hayne J: - He stated that the detention scheme had not contravened chapter III, as it was not punitive - This was due to the detention under the Act had not been punitive as it was not a breach of legal rule to miss the point of detention of unlawful non-citizens - The act had not made it an offence to be in Australia without a Visa, he considered that the mandatory detention scheme to not be that different to the system of which people were prevented from entering Australia without permission - His judgment was concluded using the five elements of punishment stated by HLA Hart, and found that the second element could not be proven as there had been no breach - Thereby, he held that it was not punitive

McHugh J: - He also agreed with Hayne J in saying that the detention had not been punitive - He held that it had not been punitive due to its administrative character - He concluded that as long as the purpose of the detention was to make the Al-Kateb available for deportation, or to prevent unlawful non-citizens from entering Australia, then it was not held to be punitive, he stated:  “A law requiring the detention of the alien takes its character from the purpose of the detention. As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non-punitive” - He had factored in that a non-punitive purpose could affect Chapter III if it had prevented the court  “from determining some matter that is a condition precent to authorising detention”  However this had not been the case in Al-Kateb’s situation, but allowed the courts to see where a non-punitive situation would affect Chapter III Gummow J - In dissent stated that  “the focusing of attention on whether detention is ‘penal or punitive in character’ is apt to mislead” - He further elaborated on this statement as the purpose of the detention is a fundamental criterion by which non-judicial detention was allowed in previous cases - He further went on to state that:  It cannot be for the executive government to determine the placing from time to time of that boundary line which marks off a category of deprivation of liberty from the reach of Chapter III” - He stated this in relation to the inconsistency of the principle of the parliament to not infringe of fundamental civil liberties unless an express intention can be inferred. - His whole argument was in relation to the interpretation of the provisions being inconsistent and ambiguous Gleeson CJ - His judgment was a little comment made on whether the indefinite detention breached Chapter III of the Constitution - He did not concur with the majority when stating the power under the “immigration power” and the “aliens power” Overall, it was held by majority that it had been non-punitive.

Conclusion - The High Court held that Mr Al-Kateb was to remain in detention until there had been arrangements made for him to be moved to another nation. This related to an effective life sentence by the HC. As the Migration Act allows for unlawful noncitizens to be detained indefinitely and does not infringe on Chapter III of the Constitution, and that interpreting law is not to be used when interpreting the Constitution...