Al-Kateb v. Godwin, HCA 37 (2004) - Courses

ii. Defend that it is lawful to indefinitely detain Al-Kateb.-Argued that Al-Kateb was a stateless person, not a refugee, andtherefore not afforded the rights granted to refugees.-Argued that Al-Kateb was legally detained under Australia’smandatory detention policy because the plaintiff did not have avalid visa or passport.-Argued that just because the removal of the plaintiff is not in theforeseeable future, it does not change to policy of the MigrationAct to detain unlawful non-citizens during the process of the law.-Argued that detention was not exclusive to the judicial branch,and therefore did not violate the constitution of Australia.III. Questions and Issues in the Casea. International Lawi. Is Al-Kateb a refugee or a stateless person?b. Relevant Questionsi. Can Al-Kateb be detained indefinitely according to Australia’sMigration Act of 1958?ii. Can unlawful non-citizens be detained without being charged with acrime?iii. Is Al-Kateb’s detention in violation of the Australian Constitution?c. Primary Questioni. Is it lawful to indefinitely detain a stateless person?IV. Decision and Court’s Reasoninga. Is Al-Kateb a refugee or a stateless person?i. Al-Kateb does not meet the definitions of a refugee according to the1951 Refugee Convention.ii. The plaintiff could not claim nationality in any State, and therefore is astateless person.b. Can Al-Kateb be detained indefinitely according to Australia’s Migration Act?i. Yes, the Migration Act permits the indefinite detention of Al-Kateb.ii. Found that “even if, as in this case, it is found that ‘there is no reallikelihood or prospect of the non-citizen’s removal in the reasonablyforeseeable future’, that does not mean that continued detention is not forthe purpose of subsequent removal.”c. Can unlawful non-citizens be detained without being charged with a crime?i. Yes, the mandatory detention policy may be applied because Al-Katebdid not have a visa, and is required to be detained according to Australianlaw.d. Is Al-Kateb’s detention in violation of the Australian Constitution?i. No, the plaintiff’s detention was not based on punitive punishment.ii. Therefore, it is irrelevant which branch was responsible for hisdetention.e. Is it lawful to indefinitely detain a stateless person?