By Shreya Srivastava
Tony Sami has been indefinitely detained for over a decade. Now, he is appealing to the High Court to overturn the precedent that makes this possible.
The Migration Act requires that the Australian government detains all “unlawful non-citizens” until they can either be deported or granted entry into Australia. Indefinite detention occurs when a person, who is often stateless, is held without any prospect of removal or resettlement in Australia, typically in an offshore centre. Many of these persons may have come to Australia on humanitarian grounds as refugees or asylum seekers.
Courtesy of Erik Anderson/EPA and Aljazeera.
Indefinite detention has been described as “tantamount to torture”. The practice has serious consequences on the mental and physical wellbeing of those who are being detained, including many instances of physical and sexual violence. In an eleven-month period, over 25% of asylum seekers detained offshore in Nauru engaged in self harm. The rate of self-harm in the Australian community, by comparison, was 0.12%. Despite this, the lawfulness of indefinite detention continues to rest on a matrix of legal reasoning that all but ignores the suffering of those involved.
A powerful precedent: Al-Kateb v Godwin
Al-Kateb. Courtesy of Andrew Sheargold, 2007.
In 2000, a Palestinian man named Ahmed Al-Kateb was placed in immigration detention. Al-Kateb was stateless. He could not be deported to any other country, and the Australian government sought to detain him indefinitely. In confirming the lawfulness of his detention in 2004, the majority of the High Court asserted two principles. First, that the Migration Act (1958) permits the detaining of a person even if they cannot be practicably removed. Second, that the executive detention of stateless persons should not be considered a use of “judicial power” and is therefore constitutional. The precedent of Al-Kateb has held strong in the High Court. A challenge to overturn the case in 2018 was dismissed by the High Court after just several minutes of discussion.
However, the rhetoric of Justice Mortimer of the Federal Court in Sami would seem to represent a shift in judicial sentiment. Her Honour strongly stated that “if the law were otherwise”, she would have “no difficulty” in requiring the lawfulness of Sami’s detention to be re-examined. These are words that the High Court will have to grapple with on Sami’s appeal.
Sami v the Minister for Home Affairs
Tony Sami (right) and his son. Photo courtesy of The Guardian, 2023
Sami arrived in Australia in 2000. He obtained a partner visa in 2003, and him and his partner had a child following this. His visa was cancelled following a number of offences in 2012. Sami was placed in immigration detention pending his removal to Egypt under the Migration Act (1958).
However, Sami has since not been able to be removed, and has remained in detention for over a decade. The Egyptian government is requiring the contact details of his relatives in Egypt, which Sami claims not to have, in order to issue any form of travel document. Australian border forces note that the Egyptian authorities have not been willing to cooperate to help make these travel documents. As Justice Mortimer noted, “by this stage, it was not Mr Sami’s lack of cooperation which was causing his prolonged incarceration.
In 2021, Sami commenced proceedings in the Federal Court. He applied for a writ of habeus corpus – which would require the Minister to justify the lawfulness of his detention.
However, the precedent of Al-Kateb led to Sami’s application, albeit hesitantly, being denied by Justice Mortimer. Despite this, her Honour gave detailed reasons why the law in Al-Kateb ought to be questioned. Specifically, Justice Mortimer cast significant doubt on the High Court’s original interpretation of the Migration Act (1958) and the Australian Constitution in Al-Kateb. Sami’s appeal will be the first time the Court will have substantially engaged with these issues since the last challenge in the 2018 M47 case.
The Migration Act – holding for removal
Her Honour emphasises that it is difficult to accept the majority’s conclusion in Al-Kateb that sections 196 and 198 of the Migration Act (1958) permits the indefinite detention of a person who cannot be practicably removed. “There is no apparent consciousness”, Her Honour writes, that “a person like Mr Sami remains deprived of his liberty not because he is under any punishment…but because he is being held for [the] single purpose [of removal from Australia].” In doing so, Justice Mortimer cites the dissenting judgement of Justice Gummow in Al-Kateb, who argued that the operation of the Migration Act is “significantly constrained”  where it is not reasonably practicable or likely for a person to be removed. This argument was previously submitted to the High Court by the Australian Human Rights Commission in the M47 case, however it was not meaningfully engaged with prior to M47 being dismissed.
“There is no apparent consciousness”
Returning to Sami, Her Honour was convinced on a factual basis that it was unlikely that Sami would be able to be removed to Egypt in the reasonably foreseeable future. This was based on the conduct of the Egyptian government and Mr Sami’s apparent lack of family abroad. In the absence of the binding precedent of Al-Kateb, such a finding would have led to the granting of writs requiring the Minister to justify Sami’s detention. However, given this overhanging precedent Mr Sami could make “no more than a formal submission that Al-Kateb is wrongly decided,” and his application was rejected.
The constitutionality of executive detention
The Australian Constitution provides for a separation of powers between the executive government and the judiciary, with the latter being the only body permitted to exercise “judicial” powers. The High Court held in Al-Kateb that indefinite immigration detention by the executive government is not an unconstitutional use of judicial power. Justice McHugh argued that executive detention does not resemble the “punitive” nature of judicial detention. Furthermore, his Honour controversially wrote that “it is not for courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights.” His Honours statement shines a light on how Al-Kateb has helped produce an executive shielding of supposedly “non-judicial” indefinite detention decisions from the judicial oversight of the High Court.
“It should not be for the executive to simply take its own time in the removal process.”
In Sami, Justice Mortimer strongly counters this. She writes that “it remains the case in this country that a person responsible for the deprivation of another’s liberty can be compelled to justify that detention.” Proving the lawfulness of one’s detention is a fundamental pillar of the rule of law. It is difficult to accept the conclusion in Al-Kateb that the executive is somehow immune from accountability for the endless, forced detention of individuals who have usually committed no crime. In stark contrast to Justice McHugh’s statements on human rights, Her Honour condemned the delay and conduct of officers involved in Mr Sami’s continued detention, which has cost him a decade of his life. Although Her Honour did not substantially engage with the constitutionality issue, she wrote that “it should not be for the executive to simply take its own time in the removal process.”These statements regarding the extent of executive power in relation to indefinite detention will again be for the consideration of the High Court on Sami’s appeal.
Sami’s deportation and executive interference
Although it has yet to be publicly confirmed, there are rumours that Sami was already deported to Egypt in February this year. This raises serious concerns about the executive’s interference in a pending High Court appeal. There has been relative silence from the media about the status of Sami’s appeal since it was announced. If nothing else, the timing of Sami’s alleged deportation after a decade of detention seems very convenient. Given the Federal Court’s sentiment, one might wonder how the Australian Border Force was able to suddenly gain the cooperation of the Egyptian authorities right as an Al-Kateb challenge was knocking on the High Court’s door.
In writing her judgement, Justice Mortimer stated that the legislative scheme of mandatory detention has reached the “altogether disgraceful objective” of sheltering executive actors from the consequences of their decisions. Al-Kateb remains a highly cited case in the Australian bill of rights debate. Academic scholars continue to condemn the outcome Al-Kateb and its impacts on human rights. They note that other than by Justice Kirby, essentially no attention was paid in Al-Kateb to Australia’s international humanitarian obligations to refugees and asylum seekers.
A new challenge to Al-Kateb, decades on from the original decision, is welcomed. Even if, sadly, Sami already been deported, Justice Mortimer’s words cannot go unacknowledged. For many who remain in indefinite detention, Sami is a new symbol of hope.
 See: https://humanrights.gov.au/our-work/6-australias-immigration-detention-policy-and-practice
 Migration Act 1958 s 196; Al-Kateb v Godwin  HCA 37
 Al-Kateb v Godwin  HCA 37 5.
 Plaintiff M47/2018 v. Minister for Home Affairs & Anor.
 Helen Davidson, “High court rejects attempt to challenge Australia’s indefinite detention regime” (2019) The Guardian https://www.theguardian.com/australia-news/2019/feb/13/stateless-mans-court-challenge-to-indefinite-detention-goes-ahead Last accessed 1 September 2021.
 Migration Act 1958 ss 196, 198
 Sami, 61.
 Sami, 79.
 Sami, 98.
 Sami 173.
 Plaintiff M47/2018 v. Minister for Home Affairs & Anor.
 Sami, 53.
 Al-Kateb v Godwin  HCA 37 122.
 Sami, 169.
 Sami, 87.
 Sami, 2.
 Australian Constitution, Chapters 1, 2 and 3.
 Al-Kateb v Godwin  HCA 37 74.
 Sami, 36.
 Sami, 53.
 Sami, 56.
 Sami, 53.
 Katherine Young (2009) “The World, through the Judge’s Eye”, Australian Year Book of International Law, 1:28 35.
 AJ Brown (2016) “When Liberty Divides: Judicial Cleavages and their Consequences in Al-Kateb v Godwin (2004)”, A Lynch (eds) Great Australian Dissents (Cambridge University Press), 317.
Al-Kateb v Godwin  HCA 37; https://humanrights.gov.au/our-work/6-australias-immigration-detention-policy-and-practice