Talk:Al-Kateb v Godwin

Vandalism

There's been some petty vandalism going on. Please lock the page to anonymous edits. --RevWaldo 20:43, 18 October 2006 (UTC)

Who's Al-Katep?

Does this man not have a first name? And what is the deal with giving NO background information on him until one of the last paragraphs (ie, implying that he would be from Palestine, should such a country exist).- Laikalynx 02:19, 18 October 2006 (UTC)

Added info on background (though no first name). Janet13 02:48, 18 October 2006 (UTC)

Who's Godwin?

Can't work out who Godwin is. Anybody know? Clappingsimon talk 05:59, 12 September 2006 (UTC)

Phillippa Godwin, a department secretary, but I see you've already found that and added it in! I didn't include it originally because she wasn't a party personally, only on behalf of the department. --bainer (talk) 02:46, 17 September 2006 (UTC)

What happened next?

After reading this article, I wanted to know what happened to Al-Kateb - is he still in detention? Can someone write an article on him giving more information?

Also, has Australian immigration law been amended to clarify its application to stateless persons? If so, a mention of this should be added to this article.

Rodparkes 01:43, 18 October 2006 (UTC)

Typically, indefinitely means forever. Presumably, he is a prisoner of Australia for the rest of his existence. Like a slave. Hope I'm wrong.-Laikalynx 02:13, 18 October 2006 (UTC)

See the "consequences" section. Al-Kateb and eight other people were granted special bridging visas from the government in late 2004, following public pressure. This means he was no longer in detention. The last available information on him, that I am aware of, is from mid 2005. --bainer (talk) 13:32, 18 October 2006 (UTC)

Why is he stateless?

I think that should be explained promptly. :) Xiner 02:29, 18 October 2006 (UTC)

Added info on background. Janet13 02:48, 18 October 2006 (UTC)

Am I missing something? I can't find an explanation, though I infer from the judge's comments that it has something to do with him being of Palestinian extraction? Unmake 02:57, 18 October 2006 (UTC)

I just skimmed a couple of lines of the article and I understood why he was stateless, though the article doesn't explain his Kuwaiti status; I don't get how it became featured while lacking such important information. To sum it up, most countries (including Australia) do not recognize Gaza/Palestine as an independant state -- it is regarded as "occupied by Israel."

The article states that he's a "Palestinian man born in Kuwait," presumably meaning that he was born in Kuwait, but no longer has any valid citizenship or travel documents from there, as such the Kuwaiti government cannot accept him. So that leaves him with Palestine, which is unrecognized, as such he is stuck in Australia until he can somehow get any sort of country status. ♠ SG →Talk 07:44, 18 October 2006 (UTC)

This is explained in the section "background to the case", which somehow was deleted in the mass of editing that occurred today, but which I have just restored. Al-Kateb was born in Kuwait, but did not automatically acquire Kuwaiti citizenship because his parents were Palestinian. As such, he had no citizenship from birth. --bainer (talk) 13:37, 18 October 2006 (UTC)

so he's still detained?

lol (in a sad way) —The preceding unsigned comment was added by 86.129.97.218 (talk • contribs) on 18 October 2006.

Literalist or purposive

Is it right to say that the majority-minority split was a split between literalist and purposive approaches to statutory interpretation.

The structure of the Amigration Act and it's legislative hsitory make it lcear that Parliament's intent when it ammended the Act in its current form was that there was to be a presumption in favour of detention of "illegal non-citizens". Detention is, as it were, the default position. On that basis, it would seem to me that it is the majority whose view is best characterised as purposive.

The issue in Al-Kateb was the meaning of the word "until" in the phrase in s196: "(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa."

Section 198 provided: "(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if: (a) the non-citizen is a detainee; and (b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and (c) ... (i) the grant of the visa has been refused and the application has been finally determined; ... and (d) the non-citizen has not made another valid application ..."

Sections 199 and 200 were relevantly in simialr terms.

The question was, if it is not currently "reasonably practicable" to remove an unlawful non-citizen in detention (and its not forseeable that that will change), does the requirement in s196 to keep the person in detention until he is removed mean to keep him in detention until things change and failing that, until he dies. As the Commonwealth Solicitor-General put it, does "until" include "until Hell freezes over" - i.e. does a statement containing the condition "until" encompass the possibility that the condition will never occur and thus the time period nominated is in fact forever.

Given the fact that the purpose of the Migration Act is clearly that detention is to be the default position for unlawful non-citizens, I think teh interpretation of "until" that msot accords with the intention of PArliament is a construction that encompasses "until Hell freezes over".

Whether that is good or nice or right or desireable, is a moral or political question and is irrelevant to what teh statute means - except to the extent that one can make arguments that Parliament would never have intended to be so cruel. But I'm afraid all the evidence points to the fact that Parliament intended to be precisely that cruel.

The fact that McHugh J could uphold this result as legally correct while decrying it as a moral outrage is a good illustrateion of why he was such a great judge, in my view. —The preceding unsigned comment was added by 221.133.201.98 (talk • contribs) on 18 October 2006.

Explaining edit

The edit summary only allow so much. http://www.austlii.edu.au/au/cases/cth/high_ct/219clr562.html is 404ing, so removing. Replacing bottom link for that with http://www.austlii.edu.au/au/cases/cth/HCA/2004/37.html which seems to have same info.

In wiki code, I removed (2004) 219 CLR 562 from the citations in the infobox, and replaced (2004) 219 CLR 562 with [2004] HCA 37 which accounts for many references. I checked 2 and both were in there, though one had an extra word in a quote I'll change in a minute.

I'm curious how a link can disappear so fast, though. Balsa10 10:24, 18 October 2006 (UTC)

Name in Arabic

I've just changed the Arabic version of the defendant's name from كاتب أحمد (Kateb Ahmed), added by EamonnPKeane, to احمد الكاتب (Ahmed Al-Kateb) based on references in the article, but this isn't based on any direct knowledge of the case, the defendant, or the Arabic language. If anyone knows for sure what the name should be, please add it to the article. Also, if you know what you're about and you think that Ahmed looks better with a hamza on the alif, feel free to add it. Tesseran 03:28, 19 October 2006 (UTC)

Hayne J's judgment

Reading over this page I'm a bit surprised Hayne J's infamous judgment was not discussed further. His seeming opposition to the decision in the Communist Party Case sticks in my mind as one of the most bewildering opinions I've read from a High Court Justice, and it seems to me like a short discussion in the Academic Response section would be appropriate. Thoughts? —Preceding unsigned comment added by 202.89.163.157 (talk) 13:26, 27 July 2009 (UTC)

FAR

This article might end up at WP:FAR due to a lack of citations. YellowMonkey (cricket photo poll!) paid editing=POV 06:54, 14 August 2009 (UTC)

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FA concerns

The article needs to be updated because immigration detention continues to be a public policy issue in Australia with more court cases that have referred back to this case. A search of AUSTLII shows lots of journal articles in the last 15 years have commented on this case in relation to subsequent similar cases Bumbubookworm (talk) 05:41, 9 October 2021 (UTC)

• Agree, and various academic coverage especially discussion of the "right to have rights" is missing. (t · c) buidhe 01:46, 10 October 2021 (UTC)

NZYQ decision

Another case seeking to overturn this decision, NZYQ vs Minister for Immigration, has just been decided. I can't find the judgement pdf yet, but news articles say this has "overturned" al-Kateb. [1] I've added a short sentence to the end of the lead, but obviously more information will be needed once the judgement can be examined. Also, I'd say this new decision would need its own article. MarkiPoli (talk) 07:34, 8 November 2023 (UTC)