The high court has rejected an attempt to reopen a controversial ruling which effectively enabled indefinite immigration detention in Australia.
The full bench in Canberra took the highly unusual step of delivering an immediate judgement, after a tumultuous day which saw the plaintiff’s lawyers seek to stop them hearing the case and have it sent back to a single judge for reassessment.
The change in tack came after arguments on his statelessness appeared to come unstuck under animated questioning from the judges on his credibility, with justice Michelle Gordon querying whether he had “the keys in his pocket to get himself out” of detention by providing more information about his background.
The case was brought on behalf of an allegedly stateless man, referred to in court as plaintiff M47, who has been held in immigration detention for nine years. His lawyers argue that he has almost no prospect of release or removal from Australia, which rendered his detention unlawful as it was no longer a means to facilitate removal.
It sought to reopen the controversial 2004 Al-Kateb v Godwin ruling, which enabled indefinite detention in Australia.
The high court usually takes weeks or months to deliver its ruling but on Wednesday they adjourned for just minutes, finding “no factual basis” to answer two legislative questions, awarding no relief to M47, and ordering the plaintiff pay costs.
The questions before the bench related to powers under the migration act to detain and deport unlawful non-citizens.
Wednesday’s ruling does not prevent further attempts to challenge Al-Kateb.
M47 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. Investigations into his identity have focused on the possibility he is Algerian or Moroccan.
Pre-hearing submissions from the government said its success would potentially affect every case of onshore detention in the past 15 years. Alison Battisson, a lawyer for M47, who cannot be named because of reporting restrictions, hoped it would be the case which started the end of indefinite arbitrary detention in Australia.
However, after relentless questioning of the man’s interactions with the immigration department, his lawyers requested the full bench allow a retreat of sorts, setting aside the orders which referred the case from a single high court judge to the full bench.
His lawyer, Ron Merkel QC, had requested further time to seek “informed instruction” from his client, who had not agreed to the legal team’s request that they take the step back.
More than 90 minutes later, the situation had not changed, and Merkel suggested the high court could make the order itself. It declined and instructed both parties to begin arguments.
The full bench earlier sought to hear arguments about whether M47 is in fact stateless – a fact that had to be established if the Al-Kateb ruling was to be challenged through his circumstances.
Merkel said the immigration department had investigated the man’s identity for nine years and made no headway. Entreaties to Norway, the US, UK, New Zealand and Canada to resettle him had all been refused.
He thus had no reasonable prospect of release from detention or removal to another country, Merkel suggested.
However, the judges questioned if he could provide information that established his identity and potentially facilitate his deportation, ending his indefinite detention.
“What clearly sets this case apart from other cases, including al-Kateb, is that a large part of the difficulty in establishing [his identity] is that the plaintiff… has volunteered many various inconsistent conflicting accounts,” said justice Geoffrey Nettle.
Merkel accepted there was an issue of “credibility” but that it didn’t change the fact there was no current information or forthcoming information from the government’s investigations.
“This credibility issue ultimately comes down to no more than the department suspects … that the plaintiff has concealed information which might assist. But the department is not able to identify what that information is,” he said.
“Well that’s chicken and egg, isn’t it,” replied chief justice Susan Kiefel. “There’s doubts all the way through.”
The department said it had written to the plaintiff on 8 November, requesting he meet with the Algerian and Moroccan embassies again to establish whether he was a native of those countries. He had previously refused to speak Arabic for an Algerian voice analyst.
Merkel said M47’s accent had been affected by nine years of detention. Algeria had already analysed an older recording of his voice, finding with 80% confidence that he was not Algerian.
Morocco had refused any claim over him, and there was no suggestion it would change its mind, he said.
However, the judges asked why the man was not cooperating if he had “nothing to hide”.
“Absent his cooperation, one can’t know what the prospects are,” said justice Patrick Keane.
After a short adjournment Merkel requested the case be adjourned to another date as the plaintiff had offered to meet with both embassies and further cooperate with the department.
The solicitor general Stephen Donaghue, acting for the immigration minister, opposed the request, saying the issues at hand had been “squarely dealt with”.
He presented examples of the M47’s inconsistent statements, including an admission that he told Moroccan officials during a phone call that he was Algerian.
The high court will publish their reasons for the decision at a later date.
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