On November 8, 2023, at a hearing in the case of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor, the High Court of Australia, the highest court in the federal judicial hierarchy, pronounced its ruling that certain provisions in the Migration Act 1958 (Cth) regarding immigration detention are “beyond the legislative power of the Commonwealth insofar as they applied to the plaintiff.” (NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (8 Nov. 2023).) It therefore ordered a writ of habeas corpus requiring that the plaintiff be released. The court will publish the reasons for its decision at a later date.
The High Court in the 2004 case of Al-Kateb v Godwin had upheld the constitutional validity of indefinite detention of individuals who had been refused a visa but had no real prospect of being removed from Australia, which it found was authorized by sections 189(1) and 196(1) of the Migration Act 1958 (Cth) — the provisions at the center of the NZYQ case. The court in the current case, however, overturned its earlier decision by finding that such application of the provisions was unlawful. The provisions read:
(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person.
196 Duration of detention
(1) An unlawful non‑citizen detained under section 189 must be kept in immigration detention until:
(aa) an officer begins to deal with the non‑citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is granted a visa.
Since the 2004 ruling, according to the Andrew & Renata Kaldor Centre for International Refugee Law at the University of New South Wales, which appeared as amici curiae in the NZYQ case,
… the Australian Government has routinely detained people for prolonged periods of time – some for over a decade.
Today, the average period of time for which the Australian Government holds people in immigration detention is 708 days. There are 124 people in detention today whom the Government has detained for over five years. Many of those people are stateless or owed protection by Australia, meaning that they cannot be returned to their countries of origin as a matter of international law.
The NZYQ case involved a Rohingya man from Myanmar who had arrived by boat in 2012. His temporary visa was cancelled in 2015 after he was convicted and imprisoned for child sexual offenses. He was refused a protection visa because he did not satisfy criteria in section 36(1C) of the Migration Act, which requires that an applicant not be a person whom the minister considers, on reasonable grounds, “having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.” The man could not be returned to Myanmar due to the rules regarding non-refoulement, and no other country has yet been found to take him. He was therefore placed in immigration detention as an unlawful noncitizen.
According to the government submissions at the hearing, there are 92 people in a similar position to the man, with 78 of those referred to as “197C affected” — people with a citizenship who could not be returned to their home country because they are accepted as having a well-founded fear of persecution there. Five people were confirmed to be in a “Stateless” group, meaning they do not have citizenship in any country, and there is an “Intractable” group of nine, who “cannot be removed due to factors beyond the detainee’s and the Commonwealth’s control.”
A law professor writing about the NZYQ case noted that “[t]he lack of time limits on detention, and the inability to challenge it, have made Australia an outlier internationally.” However, despite domestic and international criticism, the mandatory and indefinite detention policy “has had bipartisan political support for decades.” The High Court’s decision was welcomed by the Australian Human Rights Commission, Amnesty International Australia, and the Refugee Council of Australia.
Following the High Court’s order, the government stated that the Rohingya man has been released from detention on “strict conditions.” A further 80 detainees were released “almost immediately” on the basis of the decision and are now in the community “with appropriate visas.” The Australian Federal Police and Border Force were involved in the process. The attorney-general said that “[t]here will be appropriate visa conditions, and the Commonwealth Government will be working with state and territory criminal justice agencies who, of course, are primarily responsible for each of the people concerned.” He said that the government is looking at all options available to it, including possible legislative changes, and will need to consider the reasons for the decision once they are available.
Kelly Buchanan, Law Library of Congress
November 17, 2023
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