Mandatory Detention of Asylum Seekers and compatibility with Australia’s human rights obligations

Publish Date: Oct 11, 2013

Australia has had a system of mandatory detention since 1992, with the Migration Act 1958 prescribing that any non-citizen who is in Australia without a valid visa must be detained.

The power to detain asylum seekers is provided for in section 196 of the Migration Act, which states that a person must be kept in detention until he or she is removed / deported from Australia or granted a visa.

What happens where people cannot be removed – because they have been found to be a refugee – but they cannot be granted a visa because they are deemed to be a security threat.

The legality of unlimited detention was unsuccessfully challenged in the case of Al-Kateb v Godwin. A majority of the High Court held that it is possible for a person to be held in detention indefinitely.

Currently, Australia is holding a number of refugees in immigration detention who, despite being found to have valid refugee claims, have been given adverse ASIO security assessments.

A person may be able to have an adverse assessment from ASIO reviewed. They also have the option of applying to the Courts; however experience has shown that this is often a fruitless exercise. 


A number of our clients have been able to successfully challenge ASIO assessments. If you would like help in what is one of the most complex and contentious areas of Australian law please do not hesitate to give us a call. 


Craddock Murray Neumann Immigration Lawyers has represented more than 5,000 visa applicants over the years and we have an extensive skill base and information resources to assist our clients.

Let us help you. Phone: +61 2 8268 4000 or Book a conference