A legal challenge to Australia’s system of indefinite immigration detention could determine the freedom of hundreds of asylum seekers and former visa holders. The case concerns Tony Sami, an Egyptian man who has been held in detention for over three years after his visa was cancelled.
In a December judgment, Federal Court Justice Debra Mortimer made preliminary findings in Sami’s favour, stating that Australia’s immigration system had achieved the “disgraceful objective” of desensitising officers to indefinite detention. She noted that efforts to remove Sami to Egypt consisted of “little more than a series of emails and somewhat random inquiries”.
Justice Mortimer said that if it were not for the binding precedent of the 2004 High Court decision in Al Kateb, she would have ordered Sami’s release. In Al Kateb, the High Court narrowly ruled that indefinite detention is authorised under the Migration Act, a decision criticised by the UN as illegal under international law.
Sami’s lawyers have filed an appeal, seeking to have Al Kateb reconsidered by the High Court. The Australian Human Rights Commission previously attempted to challenge the precedent in 2019, but the case was dismissed due to lack of agreement on the plaintiff’s prospects of removal.
If successful, the appeal could overturn the legal basis for indefinite detention, affecting hundreds of people currently held indefinitely. The government has argued that indefinite detention is necessary for national security and border control, but advocates say it violates fundamental human rights.
