On 8 November, the High Court of Australia decided the matter of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, finding that indefinite immigration detention was unlawful under Australia’s Constitution. The decision resulted in the immediate release of over a hundred detainees and reversed almost 20 years of case law under which indefinite immigration detention had been found to be lawful both under the Migration Act 1958 and under the Constitution. This page summarises the reasons for the court’s decision.
Facts of NZYQ v Minister
The plaintiff, NZYQ, was a Rohingyan Muslim born in Myanmar who came to Australia by boat to seek asylum in 2012. He was taken into detention but released on a Bridging Visa in 2014. In 2016, he pleaded guilty to a child sex offence and was sentenced to five years imprisonment with a non-parole period of three years and four months.
When the plaintiff was released from criminal custody, he was taken back into immigration detention. He was subsequently found to be a refugee but refused a protection visa on character grounds.
The plaintiff could not be returned to Myanmar as he was not a citizen of that country. Furthermore, he had been found to be a refugee and as such could not be returned to the country where he faced persecution. He had no right of entry or residence of any other country. The Department had never removed a person found guilty of a child sex offence to a country other than the country where they were a citizen. As such, the plaintiff had no prospect for removal from Australia.
He challenged his detention on two grounds. Firstly, he argued his indefinite detention was unlawful under the Migration Act 1958 and secondly, he argued that it was unlawful under Chapter III of the Constitution.
Statutory construction issue
The plaintiff argued that his ongoing detention was not authorised by sections 189(1) and 196 (1) of the Migration Act 1958. Section 189(1) provides that an unlawful non-citizen must be detained if they are within, or are seeking to enter, the Australian migration zone. Section 196(1) provides that a person must be kept in detention until:
- they are removed from Australia
- they are deported from Australia
- they are granted a visa.
In the 2004 High Court decision of Al Kateb, a majority of the court held that the Migration Act 1958 authorised indefinite detention in the above two provisions as the use of the words ‘kept’ and ‘until’ in section 196 made it clear that detention was to be ‘an ongoing or continuous state of affairs that is to be maintained up to the time that the event (relevantly, the grant of a visa or removal) actually occurs“.
The court found that there was no need to reopen and reconsider this holding and found that NZYQ’s argument about statutory construction of the Migration Act 1958 failed.
Constitutional issue
Chapter III of the Australian Constitution deals with the judicature, including the limitations on the power of courts and legislation to detain citizens and others.
Common law has established that the involuntary detention of an individual is penal or punitive in character and ‘under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt’. It has also established that the detention of an unlawful alien must be limited to a period that is reasonably capable of being seen as necessary for the removal of the person from Australia or to enable them to apply for permission to remain here.
In the decision of Al Kateb, the High Court held that involuntary immigration detention was permissible under Chapter III of the constitution on the basis that such detention is non-punitive when it occurs for the purpose of making a person available for deportation or preventing them from entering the Australian community. However, in the matter of NZYQ v Minister for Immigration, the High Court noted that the finding in Al Kateb was difficult to reconcile with other common law findings about the legality of detention. It therefore ruled that the constitutional finding in Al Kateb must therefore be reopened and reconsidered and that the finding had been an incomplete and inaccurate statement of principle.
The decision in NZYQ v Minister for Immigration
The High Court found that the detention of an alien is constitutionally permissible only while there is a real prospect of removing the person from Australia becoming practicable in the reasonably foreseeable future. In the case of NZYQ, there was no such prospect. Although the plaintiff’s detention was lawful under the Migration Act 1958, the constitution did not authorise the plaintiff’s continuing detention under sections 189(1) and 196 (1). However, the court also noted that if in the future, the plaintiff’s removal from Australia became a real possibility, he could be again detained under those powers.
The court ordered that the plaintiff’s detention was unlawful and issued a writ of habeas corpus for his release.
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