Australia Today

High Court Rules Indefinite Immigration Detention Unlawful, Overturning Precedent for 20-Year Policy

“This is an important and long-awaited victory for human rights,”
indefinite immigration detention high court unlawful

The High Court of Australia has ruled indefinite immigration detention is unlawful, overturning the precedent that has been the foundation for Australia’s controversial asylum seeker and immigration policies for the last 20 years.

The court reversed its 2004 determination, known as the Al-Kateb case, which ruled asylum seekers who were not eligible for Australian visas, nor could be granted entry to another country, could be held in indefinite immigration detention under Australian protection.


The decision was reached on Wednesday when lawyers for a detained Rohingya man from Myanmar argued the original High Court ruling was wrongly decided. The man faced detention for life because no country would grant him a visa due to his criminal conviction for sexual intercourse with a minor.

"The problem here is with the scenario where that which the provision is designed to achieve in fact simply will not occur, cannot occur, at least in the foreseeable future," Chief Justice Stephen Gageler told the court.

Gageler said the man and others were being “kept in detention because of their character” and ordered he be released immediately.

The result could see the 92 people who cannot be returned to their country of origin, including refugees and stateless persons, immediately released from detention. The future of the remaining 340 people in long-term detention is also in doubt.

The average length of time the Australian Government holds people in immigration detention is 708 days. Some were detained for over a decade before being granted bridging visas and today, 124 people currently in detention have been there for more than five years.

Wednesday’s decision has been welcomed by human rights groups who have been advocating for the reversal for two decades.

The Acting Legal Director of the Human Rights Law Centre Sanmati Verma said in a statement, “Indefinite detention ends today”.


“This has life-changing consequences for people who have been detained for years without knowing when, or even if, they will ever be released.”

Professor Jane McAdam, Director of UNSW’s Kaldor Centre for International Refugee Law also said Australia’s approach to detention had been “completely out of step” with other democratic countries. 

“This is an important and long-awaited victory for human rights,” he said.

Paul Power, CEO of the Refugee Council of Australia, has called for an urgent review of the cases of all people currently in immigration detention to enable the release of those who cannot return to their home countries, including refugees and people fleeing war and persecution.

“Indefinite detention has always been morally wrong and unlawful under international human rights law. It is welcome to see the High Court start to overturn its 2004 decision of Al Kateb and recognise that such detention should not be permitted in Australia,” Power said. 

“It is time now for the Minister for Immigration to urgently review the cases of all those detained and work towards ending the policy of mandatory indefinite detention.” 

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Aleksandra Bliszczyk is the Deputy Editor of VICE Australia. Follow her on Instagram.