Al-Kateb V Godwin - Background To The Case

Background To The Case

Ahmed Al-Kateb was born in Kuwait in 1976, the son of Palestinian parents. Kuwait's Nationality Law is based on jus sanguinis (Article 2) and does not provide for jus soli except in the case of foundlings (Article 3). For this reason Al-Kateb did not acquire Kuwaiti citizenship at birth, and was thus considered a stateless person. Al-Kateb left his country of birth after it expelled most of the Palestinian population following the 1991 Gulf War. In December 2000, Al-Kateb, travelling by boat, arrived in Australia without a visa or passport, and was taken into immigration detention under the provisions of the Migration Act 1958.

In January 2001, Al-Kateb applied for a protection visa, on the grounds that the United Nations 1954 Convention Relating to the Status of Stateless Persons obliged Australia to protect him. His application was rejected, a decision upheld by the Refugee Review Tribunal and the Federal Court of Australia. In June 2002, Al-Kateb stated that he wished to voluntarily leave Australia and be sent to Kuwait or to Gaza. However attempts by the Government of Australia to remove Al-Kateb to Egypt, Jordan, Kuwait, Syria, and the Palestinian territories (which would have required the approval of Israel) failed.

Al-Kateb then applied to the Federal Court for writs of habeas corpus and mandamus, demanding that immigration officials comply with section 198 of the Migration Act which required that Al-Kateb, because his application for a visa had been rejected, be removed from the country "as soon as reasonably practicable". However, those applications were dismissed. Al-Kateb then sought writs of habeas corpus and mandamus on the basis that he was being unlawfully detained, and although the judge found that "removal from Australia is not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future", his application was dismissed. However, a case with substantially identical facts, decided twelve days later by a Full Court of the Federal Court, resulted in the release of another detainee, Akram Al Masri.

Finally, Al-Kateb appealed the decision against him to a Full Court of the Federal Court, hoping that the reasoning applied in the Al Masri case (which was factually similar to his situation) would be applied to him. The appeal was removed into the High Court at the request of the then Attorney-General of Australia Daryl Williams, under provisions of the Judiciary Act 1903. Pending the appeal, Al-Kateb was released in April 2003, by an interlocutory consent order of the Federal Court. The case was argued alongside two other cases which also concerned immigration detention and hearings were held on 12 November and 13 November 2003.

The respondents in the case were all members of the Government of Australia, including two officials in the Department of Immigration, Multicultural and Indigenous Affairs, and the then Minister for Immigration, Phillip Ruddock, and were represented by the Solicitor-General of Australia, David Bennett. The first named respondent, Philippa Godwin, was Deputy Secretary of DIMIA. Al-Kateb was represented by Claire O'Connor, from the Legal Services Commission of South Australia.