Abdel-Hady and The Cost of Unlawful Detention
On 10 June 2026, the High Court handed down the judgment of Abdel-Hady v Commonwealth of Australia [2026] HCA 17. The judgment found that the government had no defence to liability for the tort of false imprisonment.
The case has significant ramifications, with the possibility of hundreds of compensation claims, as it prompts renewed discussion about immigration detention and the landmark 2023 NZYQ case.
Abdel-Hady and NZYQ
In NZYQ [2023], the plaintiff sought the High Court to reopen Al-Kateb v Godwin (2004) 219 CLR 562. In Al-Kateb, a majority held that two sections of the Migration Act 1958 (Cth), which set out the requirement to detain and the duration of detention, applied to an unlawful non-citizen where removal was not reasonably foreseeable in the foreseeable future. This application of the sections did not contravene Ch III of the Constitution.
In NZYQ, the High Court reopened the constitutional holding in Al-Kateb and overruled it, finding that the relevant sections of the Migration Act 1958 (Cth) contravened Ch III of the Constitution. This ruling confirmed that the Commonwealth could not hold people in indefinite immigration detention.
Importantly, the decision introduced the possibility that the Commonwealth could be liable for the tort of false imprisonment.
Safwat Abdel-Hady, who came to Australia in 1997 from Austria, had his visa cancelled in 2017 on character grounds. This led to his detention by the Commonwealth from August 2017 until the NZYQ ruling found this detention unlawful in 2023. He was then released from detention in 2024.
Due to a medical condition rendering him medically unfit to travel, from July 2022, a lack of removal pathway meant there was ‘no real prospect’ of his removal becoming ‘practicable in the reasonably foreseeable future’.
This formed the basis for the government’s potential liability for the detention of Abdel-Hady during this period, alongside over 300 other former detainees released following the NZYQ ruling.
The NZYQ Response
The release of the detainees following NZYQ in 2023 led to the passing of the Migration Amendment (Bridging Visa Conditions) Bill 2023. This meant that whilst detainees were released, many were required to live under specific conditions, such as always wearing a monitoring device and remaining at a notified address between certain hours. A breach of either of these conditions carried maximum penalties of five years’ imprisonment.
Only a year later, the High Court determined that certain of these visa conditions were constitutionally invalid in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40.
Following the NZYQ and YBFZ rulings, the government passed the Migration Amendment Bill 2024. Some advocacy organisations argue this extended the powers of the Minister, regressive from the rulings it intended to respond to. The amendment required some non-citizens released following NZYQ to cooperate with efforts to facilitate their removal or possibly face criminal penalties. It also gave the Minister power to direct a non-citizen to do certain things, such as sign or submit document applications.
The Asylum Seeker Resource Centre explains that under this amendment, those on a Bridging Visa R, like many people released following NZYQ, would cease to hold their visa if granted permission to remain in a foreign country.
The Government introduced further amendments in 2025, allowing them to enter “third country reception arrangements”. These arrangements allow the government to deport non-citizens to third countries, like Nauru, in exchange for financial payment to the third country.
A Controversial System
Despite significant changes, Australia’s immigration detention system is no stranger to scrutiny.
As of 30 April 2026, there were approximately 1,100 people in detention facilities. However, this number is significantly lower than its peak in 2013, when over 10,000 people were in closed detention. The average period to be held in a detention facility is approximately 450 days, though this varies significantly, and many individuals continue to remain in detention for years.
The system has also faced immense international scrutiny.
From as early as 2015, the United Nations Special Rapporteur on torture found that detention on Manus Island and Nauru systemically violated the International Convention Against Torture.
A separate Amnesty International report from 2013 details many specific human rights abuses in detention, including a lack of drinking water and medical treatment.
Only in January of this year, the UN Committee Against Torture reportedly found that Australia did not protect an Iranian asylum seeker against torture whilst he was detained from 2013 until 2022. The asylum seeker alleged he had his throat slit by a security guard whilst on Manus Island.
The Australian Human Rights Commission publicly opposes the system that has been in place since 1992, calling it ‘one of the harshest immigration detention regimes in the world’. They have identified many human rights risks within it, including family separation, mental and physical health deterioration and inadequate living conditions. The Commission believes that detention ‘should only be a last resort, be strictly limited and time-bound’.
Even with the NZYQ overturning decades of detention practise, the Human Rights Commission still holds concerns with Australia’s response and the amendments to the Migration Act that followed the ruling.
The Next Steps
In 2018, the Commonwealth government paid $70 million dollars worth of compensation to over 1000 asylum seekers and refugees detained on Manus Island over two time periods under the claims of negligence and false imprisonment.
With hundreds of potential claimants, there is significant uncertainty ahead. It is possible that, collectively, claims could amount to tens of millions of dollars in compensation for false imprisonment.
