Whither Indefinite Immigration Detention in Australia: Re-Thinking Legal Constraints on the Detention of Non-Citizens
35 Pages Posted: 13 Apr 2016 Last revised: 28 Jan 2019
Date Written: April 11, 2015
The legal and practical difficulties raised by 'administrative' immigration detention of actual or suspected unlawful non-citizens have been agitated before the High Court of Australia ('HCA') and Federal Court of Australia ('FCA') recently. Chiefly, these matters have concerned cases involving persons owed 'protection obligations' under the Migration Act 1958 (Cth) (ie, refugee protection under the 1951 Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees (together referred to as 'Refugees Convention'), or 'complementary protection' under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ('CAT') and/or the International Covenant on Civil and Political Rights ('ICCPR')). One of the fundamental difficulties is that non-citizens often face prolonged and indeterminate detention both pending administrative decisions about entry to or removal from Australia, and while removal decisions are effected. Typically, these uncertainties have arisen where protection visa applicants are considered to present security risks by the Australian authorities and are denied entry, but also where non-citizens' visas are cancelled or refused on character grounds and removal is pending ('section 501 detainees').
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