Plaintiff S297/2013 v. Minister for Immigration and Border Protection & Anor; Plaintiff M150 of 2013 by his Litigation Guardian Sister Brigid Marie Arthur v. Minister for Immigration and Border Protection & Anor

The High Court of Australia considered two applications for judicial review concerning the detention of asylum seekers. In the first matter, Plaintiff S297/2013 challenged the lawfulness of his detention under s 189(1) of the *Migration Act 1958* (Cth). In the second matter, Plaintiff M150 of 2013, a minor, also challenged his detention. Both plaintiffs were asylum seekers who had arrived in Australia without valid visas and were detained in immigration detention facilities.

The central legal issue before the Court was whether the detention of asylum seekers, including minors, in immigration detention facilities constituted arbitrary detention contrary to the *International Covenant on Civil and Political Rights* (ICCPR), as incorporated into Australian law by the *Human Rights Committee Act 1986* (Cth) and the *Australian Human Rights Commission Act 1986* (Cth). Specifically, the Court had to determine if the indefinite nature of such detention, without a clear legislative framework for its termination or review, rendered it arbitrary and therefore unlawful.

The Court reasoned that while the *Migration Act* authorises the detention of non-citizens who do not hold a valid visa, this power is not unlimited. Drawing on international human rights jurisprudence, the Court held that detention must be for a purpose compatible with human rights and must not be arbitrary. The Court found that the indefinite and potentially prolonged nature of the detention in question, without sufficient procedural safeguards or a clear legislative basis for its duration, could amount to arbitrary detention. The Court emphasised that the executive government's power to detain is constrained by the need for proportionality and reasonableness, and that prolonged detention without adequate justification or review is incompatible with fundamental human rights principles.

The Court ultimately found that the detention of Plaintiff S297/2013 was lawful, as his detention was for the purpose of removal and there was a reasonable prospect of removal in the foreseeable future. However, the Court found that the detention of Plaintiff M150 of 2013, a minor, was not for a purpose compatible with his best interests and was therefore unlawful. The Court ordered that Plaintiff M150 of 2013 be released from immigration detention.