Power to detain asylum seekers indefinitely

In a unanimous decision Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34 handed down on Thursday 11 September 2014, the High Court of Australia has stated that the policy of locking up asylum seekers and refugees indefinitely without carefully considering whether it is justified in each individual case is unlawful under Australian law.

The High Court ruled that an asylum seeker who had been in detention for two years and accepted a Temporary Humanitarian Concern Visa, which was introduced by the government earlier in 2014, could not be precluded from making an application for a Permanent Protection Visa.

The Court’s decision for the first time clearly spells out the constitutional limits on mandatory detention in Australia.

This High Court decision signals a u-turn on the Court’s opinion on detention since its decision in the case of Al-Kates v. Godwin [2004] HCA 37 of 6 August 2004 where the majority of Judges effectively authorised mandatory and indefinite immigration detention in Australia.

The case clearly limits government power to detain asylum seekers indefinitely and also reaffirms the separation of the legislative, executive and judicial powers in our Constitution.

For more information on this case or for any other Migration Law related queries, please contact Esef Mirascija, Solicitor and Migration Agent.