Law in Context


In the Al-Kateb case (Al-Kateb v Godwin [2004] HCA 37) the High Court decided in a tight vote (4 to 3) that an asylum seeker whose application was rejected, but who could not be removed because no country would accept him, can be kept in immigration detention indefinitely. In particular, Justices McHugh (with the majority) and Kirby (on the dissenting side) presented contrasting paths of legal reasoning, based on different interpretations of The Migration Act 1958 (Cth).
Your task is to provide a comparative analysis of the two judges’ arguments, highlighting how they reflect different understandings of the concepts we discussed in Units 1-4 (rule of law, formalism, etc.).




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Al-Kateb V Godwin case was represented in front of Australian High court in 2014. Ahmed Al-Kateb was a Palestinian, who was born in Kuwait. He came to Australia in 2000 and applied for a temporary protection visa. The Ministry of Immigration in Australia refused to grant the visa to Ahmed Al-Kateb. The decision of the Common Wealth Minister Of Australia was upheld by Refugee Review Tribunal and the Federal Court. Later Al-Kateb officially declared that he wants to go back to the Kuwait or Gaza. The court declared Al-Kateb as stateless and ordered to defend him under the mandatory detention policy. The Migration Act 1954 allowed the court to order indefinite detention for Al-Kateb.




Ahmed Al-Kateb was born in Kuwait and his parents were Palestinian. Kuwait's citizenship can be acquired by using the citizenship of the parents and people can’t get the citizenship based on the place of birth. That is why Ahmed Al-Kateb was declared stateless. In December 2000, the Kuwaiti authorities pressurized the Palestinians to leave the country. Near about 200000 Palestinians were forced to leave Kuwait by the officials. Ahmed Al-Kateb and other Palestinians left Kuwait and reached Australia on a boat and that also without any visa. Ahmed Al-Kateb tried to apply for the protection visa from the Australian government according to the 1954 United Nation Convention relating to the status of a stateless person. But his application was rejected by the Refugee Review Tribunal. 
Ahmed Al-Kateb asked for the application of Mandamus and Habeas Corpus to the Federal Cours. He also asked the officials to make the section 198 of Migration Act in his case. But his application was rejected by the government. He applied for the writ of Habeas Corpus against his unlawful detention, but the court rejected his application.


Rule of Law:


The Migration act allows a person to be detained if the person can’t be removed from Australia. But the Ahmed Al-Kateb case points out that the migration act can only allow the release from detention if the legislature allows a visa to the person. Section 196(8) of Migration act reveals that the migration officials can remove detention only by removing the person from Australia. 
Some interpretation also reveals that unlawful non-citizens should be detained until and unless their removal process is being initiated. If the removal process of an unlawful non-citizen is not possible then the detention period will continue until the death of the person.




In the Ahmed Al-Kateb case, the argument was basically revolving around the state of a stateless person. The United Nations Convention Related to the Status of a Refugee and the Australian Migration act, both these rules overlooked the issue of a stateless person. Kateb’s year O’Coner tried to continue the argument by using the United Nations Conventions (Feldman, 2013). The Migration Act adopted multiple features from the United Nations Convention related to the Refugees. Both of these acts have focused on the state of a refugee but there was no provision for a stateless person. In the formal documents, the name of Kateb and his identifier has been changed. Justice, Kirby revealed that the name of the person is usually suppressed in a case like this, because once the name of the person has revealed then his country may refuse to take the person back. O’Coner replied to that by saying, refugees may face issues like that but an already there is no country with Kateb and a stateless person will not face issues like that. He also added to the argument by saying that, in the case of Kateb there is no solid background to practice the detention of Ahmed Al-Kateb. O’coner used the phrase “Never Say Never” and said that executing the removal of a person from Australia is a difficult job and it will take years of diplomatic negotiation. 
The question regarding the validity of this detention was also revolving at the time of the hearing of this case. According to the constitution of Australia, the detention of an immigrant is an administrative detention. In the case of Ahmed Al-Kateb, the detention was executed by the executive branch of the government. In Australia detention is considered to a judicial power and it can execute by the courts only. However, at the time of hearing some exceptional provisions for the detention came out (Brown, 2012). There are certain provisions in the Australian Constitution, which allow non-executive bodies to conduct detention. Australian High court held that detention of non-citizens for immigrants is possible according to the constitution of Australia. 
According to the chapter III of the Constitution, the court can order the detention for an indefinite period. Ahmed Al-Kateb’s lawyer argued that the application of infinite detention in the case of Ahmed Al-Kateb is violating the sense of chapter III of the Constitution of Australia. Ahmed Al-Kateb also added a reference to a federal court to support his argument. A federal court removed the order of such detention previously and Ahmed Al-Kateb’s situation is similar to the situation of that person. In the case of the federal court, the convict was finally removed from the detention. This argument added a lot more value to the case of Ahmed Al-Kateb. 




The final judgment was delivered by 4 judges, and 3 of them supported the infinite detention of Kateb. Justice McHugh stated that the constitution clearly says that in this case, the infinite detention is the only option. The other 3 judges agreed to Justice McHugh. The other judges explained this situation in their own way but finally, all of them came to the same conclusion of infinite detention. 
But the infinite decision was not the only issue. After the delivery of the judgment, one more issue arose regarding the relevance of Chapter III of the constitution of Australia. The second issue was revolving around the question that if the detention was valid or not. 3 judges discussed this question and finally, they came to the conclusion that, this detention was valid and legal and it did not violate the chapter III of the constitution of Australia. 
Some other issues were generated by this case. This case was held in the final years of justice McHugh's term. Justice Kirby was having a different opinion about the iner[retetion of the constitution. Justice Kirby and Mchugh expressed their differing opinion about the issue of Human rights and the role of Internation law in this case (Mankabady, 2012). Justice McHugh continued the argument by giving the reference of World War I and World War II. He also added the War Precautions Act 1914 to highlight his point of view about the constitution and this case. He also emphasized on the question of proactive detention and punitive detention. He concluded that this incident may be a tragic one but the court doesn’t have the liberty to oppose the decision of the legislators on the ground of human rights and another important aspect of decision making. 


Highlights of This Case:


Justice Kirby commented that tragic outcomes are the best thing which can happen before the settlement of such laws in the constitutions the legislators will be able to think for the second time about this law and chances are they will make all the possible amendments. Kirby also added that the wartime legislation is not being followed by any other country. Other developed countries and developing countries have admitted that such laws are inhumane and embarrassing most of them have already amended their constitution to change the law regarding infinite detention. Kirby also added to his argument and said that the role of a parliament is much bigger in the peacetime compared to the wartime (Saleh, 2015). He also suggested that the judges could have practiced the power of Chapter III of the constitution in this case. 


Consequence of the Verdict:


Ahmed Al-Kateb had to return to the immigration detention and his lawyer O’Coner said that people like Ahmed Al-Kateb have to wait till any other country in the middle east is willing to take him back or a state is being created for the Palestinians.
The detention of Ahmed Al-Kateb has created a lot of controversy about the detention law in Australia. This case prompted several politicians to take action and many eminent personalities of the country. The executive director of Sidney Institute, Gerard Handerson said that this case revealed the reality of Australian detention law. He also said that the public policy of Australia should add more empathy.
This case also raised some controversy about the court itself. Eminent lawmakers commented that the liberty of judges is being destroyed by the majority votes. Justice McHugh revealed his view about this case in a speech and he expressed his grievances about this tragic incident. He also remarked that the administrative infinite detention was not done in a lawful manner. He also added to the speech that, many developed countries have already abandoned the process of infinite detention.  Justice Gleeson commented that the bill or rights are pure political matter and the court doesn't complete liberty on such subjects.




This case left significant remark into the syllabus of the students of law. This case has two different aspects, one part deals with statutory impartation and the other part deals with the legalistic approach. 
Eminent law professionals passed their comments on this case and most of them said that is the case is an example of the poor construction of the immigration act. The provisions of poorly constructed migration act created a dangerous situation for a stateless person. Education experts also commented that the laws, which were created in the era of the World war are not suitable for the state of peace. The migration act should focus more on the present world scenario. 
Some law professors commented that Justice Kirby did not consider anything else than the Australian migration law. They also said that justice Kirby didn’t consider any international law or the law of other countries which have the same kind of law as Australia. They also expressed their view on the confusion, which was created by this case. Constitutional restriction of the executive power also became prominent in this case.




Brown, N. J. (2012). Constitutions in a nonconstitutional world: Arab basic laws and the prospects for accountable government. Suny Press.
Feldman, N. (2013). Constitutions in a nonconstitutional world: Arab basic laws and the prospects for accountable government.
Mankabady, S. (2012). Insurance and Islamic law: The Islamic insurance company. Arab Law Quarterly, 199-205.    
Saleh, S. (2015). The Settlement of Disputes in the Arab World Arbitration and Other Methods-Trends in Legislation and Case Law. Arab LQ, 1, 198.


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