Stateless man Said Imasi takes indefinite detention case to high court | Australia news

A proposed high court challenge to a key immigration case could retrospectively affect every instance of onshore detention in the past 15 years if successful, the federal government has said.

On Wednesday the high court will hear a request to challenge Al Kateb v Godwin, a controversial 2004 ruling about a stateless man who no country would take after Australia rejected his asylum claim, and which effectively enabled indefinite detention in Australia.

The case is brought on behalf of Said Imasi, another stateless man who has been locked up for nine years with almost no prospect of deportation or release, his lawyers claim.

The minister for home affairs and the immigration department will fight Imasi’s case, and in published submissions have forcefully rejected the plaintiff’s arguments and warned of drastic consequences to the current system which allows the indefinite detention of stateless people, asylum seekers and other non-citizens.

“If Al-Kateb is overruled, that would alter – with retrospective effect – the understanding of the [Migration] Act upon which unlawful non-citizens have been detained since 2004,” its submission said.

It would also impact the role of the Ombudsman in reviewing cases of people detained for two years or more and making recommendations to address their long-term detention, which was legislated “on the basis of the correctness of Al-Kateb”, the submission said.

They warned the court to exercise restraint and not to overrule its previous decisions “lightly”, and to be informed by a “strongly conservative cautionary principle”.

The government’s submissions, published last week, were filed in response to those from the lawyers of Imasi. Imasi’s responses to the government submissions were also published.

Alison Battisson, representing Imasi, previously told Guardian Australia she hoped it would be the case which “starts the process to end arbitrary, ongoing detention for indeterminate periods of time in Australia”.

Imasi is held in Villawood, Sydney, and his lawyers, who include the former federal court judge Ron Merkel QC, have told the high court there was “no real possibility, prospect or likelihood of the plaintiff being removed from Australia, at any time”.

The government disputed Imasi’s stateless status, saying investigations into his identity were “ongoing”.

Imasi has previously told Guardian Australia that he believes – but does not know – that he was born in the Canary Islands and was taken to the Western Sahara, which is a disputed territory, as a newborn baby.

“It is true that the department has conducted extensive identity investigations over the last nine years, but that is not determinative of the prospects of the ongoing lines of inquiry,” said the government’s submission.

It said Imasi had made “many different and inconsistent claims about his identity, date and place of birth, and relatives’ whereabouts”.

“It cannot be assumed that it is beyond his power to provide further information concerning his identity.”

It said the department was “taking steps” to find a third country to take Imasi, including as part of a diplomatic or humanitarian agreement.

Imasi’s lawyers disputed accusations against him, and responded that the government’s suggestion was “belied by the past nine years’ experience” and it had made “no material progress in finding a country” to take him. “The claim that the plaintiff is not stateless … is unreal.”

A key argument in the submissions concerned the difference between court-ordered punitive detention, and executive-ordered administrative detention.

The four-three majority ruling on Al Kateb included the finding that administrative detention, such as that required to process and carry out a deportation, could be ordered by the executive, for as long as was required to resolve it.

Battisson said arbitrary indefinite detention, even if for administrative purposes, was in fact punitive.

However, the government submitted that the distinguishing feature of punitive detention over administrative detention was that it was “imposed as punishment for a breach of the law”.

Imasi’s lawyers had also submitted that administrative detention was only legal for the purpose of deportation, and that if someone – like stateless Imasi – had no real prospect of being deported, that detention must end.

However, the government said that to allow such an interpretation would require constant reassessment of someone’s case once they were released to see if deportation was a viable option again.

Imasi’s lawyers dismissed that argument as one about convenience, and accused the government of seeking to expand the concept of detention to “segregation-pending-possible-removal”.

The government had argued that detention – for the purpose of deportation – was allowed regardless of whether there was a real prospect of it in the reasonably foreseeable future.

The high court will hear arguments on Wednesday.

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