'Extreme example of statelessness' to go before Australia's High Court


Said Imasi has been in Australian detention for nine years. Now, his story could have implications for the country's entire onshore detention system.

Said Imasi is stateless.

He does not know where he was born. He does not know his birth date. He does not know his birth name. 

Without any identifying documents, Mr Imasi - whose case the United Nations have termed an "extreme example of statelessness” - has been kept in Australian immigration detention since 2010.

But on Wednesday, lawyers for Mr Imasi are bringing his case before Australia's High Court.

Said Imasi
Said Imasi (left, photo via The Guardian) is currently in Sydney's Villawood Immigration Detention Centre.
The Guardian / SBS News

“He’s been in detention without charge for over nine years now,” Alison Battisson, director principal of law firm Human Rights For All, told SBS News.

“This something we are urgently seeking to change.”

How did he become stateless? 

Mr Imasi believes he was born in Spain’s Canary Islands on or about 27 March 1989, before being taken to the disputed territory of Western Sahara as a newborn.

As he grew up, it is thought he lived as an undocumented immigrant in various European countries.

After fleeing trouble in Norway for Australia in 2010 at the age of 20, he was detained on arrival at Melbourne’s Tullamarine Airport.

Despite submitting several applications for protection visas, and his name having no security concerns against it, he has since been shuffled though various Australian detention centres. He is currently in Sydney's Villawood. 

The Australian government says it has on several occasions attempted to confirm Mr Imasi’s identity, but each attempt has proved futile.

The Commonwealth is continuing to investigate his identity and is attempting to negotiate his acceptance as either a Moroccan or Algerian citizen, according to court documents.

The Department of Home Affairs declined to comment on Mr Imasi’s case any further, as it is before the court.

What do lawyers want?

Lawyers for Mr Imasi want to re-open one of the landmark High Court rulings they say allows people to be held without charge in Australian detention indefinitely. 

A ruling on the 2004 Al-Kateb v Godwin case found it was constitutional for a non-citizen to be detained for as long as required to process or carry out a potential deportation.

That case is named after plaintiff Ahmed Al-Kateb, a Kuwaiti-born son of Palestinian refugees, who arrived in Australia by boat in 2000 without a visa or passport.

His claim for asylum was rejected, but could not be sent home as no country would claim him as a national.

After three years in detention, and another four living in the community as a stateless person, he was granted Australian residency.

Ms Battisson says the Al-Kateb v Godwin ruling must be revised because people like Mr Imasi are falling through cracks. 

“There's no hard end date for them,” she said.

“If you take that to the extremes, like in this case, you end up with someone being detained for over nine years.

“There are several of these people in detention, with absolutely no prospects of ever being deported."

What could happen next?

“It very much turns on the outcome and the reason underpinning any ruling,” said professor Michelle Foster, director of the Peter McMullin Centre on Statelessness at the Melbourne Law School.

"If the court is willing to re-open Al-Kateb and reconsider whether or not immigration detention - particularly when it goes on for years - is valid at all, then that may have very serious ramifications for our system of immigration detention.”

The Department of Home Affairs have warned any ruling in favour of Mr Imasi’s legal team could have far-reaching consequences.

“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,” lawyers said in submissions to the Court.

Forty-four stateless people were in Australia’s immigration detention centres as of 30 November last year, according to the Department of Home Affairs.

Ms Battisson said she does not expect a ruling immediately.

“Because the decision we’re seeking to distinguish is quite well established, it could be several months before we get judgement,” she said.

How is Australia dealing with statelessness?

A stateless person is someone who does not have nationality of any country. Some people are born stateless, but others become stateless.

An estimated 10 to 12 million people around the world are stateless, according to the United Nations High Commissioner for Refugees (UNHCR) - though it believes that figure may be higher due to under-reporting.

Statelessness can occur for several reasons, according to UNHCR. These include:

  • Discrimination against particular ethnic or religious groups
  • Discrimination on the basis of gender
  • The emergence of new states and changes in borders.
  • Gaps in nationality laws - in countries where nationality is only acquired by descent, statelessness is passed on to the next generation.

In 1973, Australia ratified two UNHCR treaties aiming to protect stateless individuals: the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

But Professor Foster says Australia has failed to act sufficiently on those treaties - and people are now paying for it.

"From 1973 we’ve had international obligations to recognise and protect stateless people, and in 2011 Australia made a pledge to the UN that we would institute a system to better identify stateless people - and yet, we haven't,” she said.

“Because we don't have a proper system for protecting them, many are likely to end up in long term immigration detention."

Video at top of article shows a Villawood detainee filming the detention centre's communal spaces in 2018. 

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