2016]
The Protection of Stateless Persons in Australian Law
443
long-term prospect. In Al-Kateb v Godwin,224 Mr Al-Kateb was unable to be
released from detention because his claim for protection under the Refugee
Convention had been rejected and, as a stateless Palestinian born in Kuwait,
there was no visa category available to him, nor any country to which he
could return or be returned.225 The High Court held, as a matter of statutory
construction, that the Migration Act effectively authorised the indefinite
detention of a person who was unlawfully present in Australia (that is, not in
possession of a valid visa) and who could not be removed, even if that
detention may not realistically come to an end. The majority found that this
was not unconstitutional because, in its view, such detention was administrative, not punitive, in nature. There was considerable public outcry about the
implications of this finding. After eventually being allowed to live in the
community on a series of short-term bridging visas, in 2007 Mr Al-Kateb was
granted a Permanent Visa following Ministerial intervention.226 However, the
broader systemic problem remains: stateless persons who are unsuccessful in
their asylum applications may be detained indefinitely because there is no
country to which they can return or be returned. Yet detention of stateless
persons on account of their statelessness is contrary to the prohibition on
arbitrary detention in international law.227
224
(2004) 219 CLR 562. See also Al Masri v Minister for Immigration and Multicultural and
Indigenous Affairs (2002) 192 ALR 609.
225
Equal Rights Trust, above n 13, 124–5. See also David Marr, ‘Escape from a Life in Limbo’,
The
Sydney
Morning
Herald
(online),
27
October
2007,
<http://www.smh.com.au/articles/2007/10/26/1192941339538.html>.
226
Equal Rights Trust, above n 13, 127.
227
There is ample authority to support the position that the detention of asylum-seekers,
refugees and stateless persons is rarely, if ever justified, at least beyond the minimum period
required to undertake security and identity checks. See the views of the UN Human Rights
Committee in the following cases: Human Rights Committee, Views: Communication No
2094/2011, 108th sess, UN Doc CCPR/C/108/D/2094/2011 (20 August 2013)
(‘FKAG v Australia’); Human Rights Committee, Views: Communication No 2136/2012, 108th
sess, UN Doc CCPR/C/108/D/2136/2012 (20 August 2013) (‘MMM v Australia’); Human
Rights Committee, Views: Communications Nos 1255, 1256, 1259, 1260, 1266, 1268, 1270,
1288/2004, 90th sess, UN Docs CCPR/C/90/D/1255, 1256, 1259, 1260, 1266, 1268, 1270,
1288/2004 (11 September 2007) (‘Shams v Australia’); Human Rights Committee, Views:
Communication No 1324/2004, 88th sess, UN Doc CCPR/C/88/D/1324/2004 (13 November
2006) (‘Shafiq v Australia’); Human Rights Committee, Views: Communication No
1050/2002, 87th sess, UN Doc CCPR/C/87/D/1050/2002 (9 August 2006)
(‘D and E v Australia’); Human Rights Committee, Views: Communication No 1069/2002,
79th sess, UN Doc CCPR/C/79/D/1069/2002 (6 November 2003) (‘Bakhtiyari v Australia’);
Human Rights Committee, Views: Communication No 1014/2001, 78th sess, UN Doc
CCPR/C/78/D/1014/2001 (18 September 2003) (‘Baban v Australia’); Human Rights Committee, Views: Communication No 900/1999, 76th sess, UN Doc CCPR/C/76/D/900/1999 (13