Al-Kateb v Godwin
Al-Kateb v Godwin, was a decision of the High Court of Australia, which ruled on 6 August 2004 that the indefinite detention of a stateless person was lawful. The case concerned Ahmed Al-Kateb, a Palestinian man born in Kuwait, who moved to Australia in 2000 and applied for a temporary protection visa. The Commonwealth Minister for Immigration's decision to refuse the application was upheld by the Refugee Review Tribunal and the Federal Court. In 2002, Al-Kateb declared that he wished to return to Kuwait or Gaza. However, since no country would accept Al-Kateb, he was declared stateless and detained under the policy of mandatory detention.
| Al-Kateb v Godwin | |
|---|---|
| Court | High Court of Australia |
| Full case name | Al-Kateb v Godwin & Ors |
| Decided | 6 August 2004 |
| Citation(s) | [2004] HCA 37, (2004) 219 CLR 562 |
| Transcript(s) | [2003] HCATrans 456 (12 November 2003), [2003] HCATrans 458 (13 November 2003) |
| Case history | |
| Prior action(s) | SHDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 30; SHDB v Godwin [2003] FCA 300 |
| Court membership | |
| Judge(s) sitting | Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan & Heydon JJ |
| Case opinions | |
| (4:3) The Migration Act, authorises unlawful non-citizens to be detained until they are removed from Australia, even when there is no prospect of their removal in the reasonably foreseeable future (per McHugh, Hayne, Callinan & Heydon JJ) (4:1) The detention of non-citizens by the Executive pursuant to ss 189, 196 and 198 did not
contravene Ch III of the Commonwealth Constitution, even if the removal of the non-citizen from Australia was not reasonably practicable in the foreseeable future. (per McHugh, Hayne, Callinan and Heydon JJ) | |
| Laws applied | |
Overruled by | |
| NZYQ v Minister for Immigration | |
The two main issues considered by the High Court were whether the Migration Act 1958 (the legislation governing immigration to Australia) permitted a person in Al-Kateb's situation to be detained indefinitely, and if so, whether this was permissible under the Constitution of Australia. A majority of the court decided that the Act did allow indefinite detention, and that the Act was not unconstitutional.
The controversy surrounding the outcome of the case resulted in a review of the circumstances of twenty-four stateless people in immigration detention. Al-Kateb and 8 other stateless people were granted bridging visas in 2005 and while this meant they were released from detention, they were unable to work, study or obtain various government benefits. Al-Kateb was granted a permanent visa in October 2007.
In 2023, a subsequent High Court case, NZYQ v Minister for Immigration, overturned this decision.