Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji

The appeal concerned the lawfulness of the indefinite detention of an unlawful non-citizen, the respondent, pending his removal from Australia. The Minister for Immigration and Multicultural and Indigenous Affairs, the appellant, sought to set aside orders made by the Federal Court that had directed the respondent's release from detention. The respondent, an Iraqi national who arrived in Australia without a visa, had been refused a protection visa on the basis that he could obtain protection in Syria, and this decision was affirmed by the Refugee Review Tribunal. Despite a request for removal to Syria, the appellant had been unable to effect the respondent's removal from Australia.

The High Court was required to determine whether the provisions of the *Migration Act 1958* (Cth) that mandated the detention of unlawful non-citizens were valid, particularly when removal from Australia was not reasonably practicable in the foreseeable future. This involved considering whether the Act implied a temporal limit on detention, the construction of statutory provisions in light of common law rights, and whether indefinite detention without judicial oversight infringed Chapter III of the Constitution by constituting an exercise of judicial power by the Executive. The Court also considered whether the Constitution should be interpreted in a manner consistent with international human rights law.

The High Court allowed the appeal, holding that the *Migration Act* validly required the respondent's continued detention until he was removed from Australia. The Court reasoned that the Act's provisions for detention were not invalid, and therefore the respondent's detention was lawful. The Court found that the requirement to remove an unlawful non-citizen as soon as reasonably practicable did not imply a time limit on detention, nor did the indefinite detention, for the non-punitive purpose of removal, infringe Chapter III of the Constitution. The orders of the Federal Court were set aside, and the respondent's application to that court was dismissed.