Australia's right to detain unsuccessful asylum seekers indefinitely was upheld by the High Court in Canberra yesterday.
Its 4-3 majority judgment followed a challenge by the government to a Federal Court ruling that failed asylum seekers should not be held in detention indefinitely if no country could be found to take them.
The case involved two asylum seekers, a stateless Palestinian who was born and lived most of his life in Kuwait, and an Iraqi who had fled with his family to Syria in 1980, and both of whom had been rejected for Australian protection visas.
no prospect
The High Court was told the government had been unable to reach arrangements with other countries to take them and there was no prospect of either being returned to the destinations they preferred.
The government argued that the Migration Act required that the two be held in immigration detention in the meantime, regardless of whether repatriation arrangements could ever be reached.
The first case involved stateless Palestinian Ahmed Ali Al-Kateb, 28, who was born and lived most of his life in Kuwait and who arrived in Australia in December 2000.
His application for a protection visa was dismissed in turn by the Immigration Department, the Refugee Review Tribunal, the Federal Court and the Full Court of the Federal Court.
The court heard that he then told the department he wished to leave Australia and be sent to either Kuwait or Gaza.
In February last year he initiated Federal Court action claiming he was being unlawfully detained.
The Federal Court held that he was not unlawfully detained although there was no likelihood of his removal in the reasonably foreseeable future, but Justice John Mansfield ordered Al-Kateb's release in April last year, pending an appeal.
failed to ask
The second case involved Iraqi national Abbas Mohammad Hasan Al Khafaji, 31, who fled with his family to Syria in 1980 and who arrived in Australia in January 2000.
When his application for a protection visa failed he asked to return to Syria.
The Federal Court ordered his release from detention as there was no prospect of removal in the reasonably foreseeable future.
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