It is impossible in the space I allow for a blog post to do justice to the case of AJL20 v Commonwealth [2020] FCA 1305. However, everybody who has ever studied administrative law will know that (at least in Australia) there is no such thing as an unlimited power. ALJ20 is a case about the limits on the power in the Migration Act to detain unlawful non-citizens. ALJ20 is a Syrian national who had his permanent visa cancelled on character grounds, was then placed in immigration detention but who couldn’t be “refouled” (ie sent back) to Syria because of the protection obligations owed to him.

Section 189 Migration Act says that unlawful non-citizens have to be detained. Such a person can only be detained until they are removed from Australia (section 196) and that must occur “as soon as practicable” (section 198(6)). The issue before the Court was that in a situation where removal was practically impossible (my words) did the detention of AJL20 continue to be lawful? The answer, at least by Bromberg J at first instance is that AJL20’s detention wasn’t lawful and the court issued the writ of habeus corpus (to have him released). The judgment carefully examines the older “detention cases” (such as Al Kateb), the requirements for habeus corpus and the limits on administrative power.

This decision will have to end up in the appellate courts and I am sure that AJL20 is probably not the only person who is unlawfully being detained.

I am unsure of AJL20’s visa status. It appears he is in the community, without a valid visa and that it would be unlawful for the Commonwealth to further detain him. This is a very interesting case!

Creative commons acknowledgment for the photograph.


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