CZA19 v Commonwealth of Australia; DBD24 v Minister for Immigration and Multicultural Affairs

In CZA19 v Commonwealth of Australia and DBD24 v Minister for Immigration and Multicultural Affairs, the High Court of Australia considered whether the continued immigration detention of the applicants, following findings by the Administrative Appeals Tribunal that they satisfied criteria for a protection visa, was unlawful. The applicants had been detained under sections 189(1) and 196(1) of the *Migration Act 1958* (Cth), which mandate detention until removal, deportation, or grant of a visa. The core of the dispute was whether their detention, from the time of the Tribunal's findings until their eventual release upon being granted visas, exceeded the constitutional limitation on executive detention identified in *NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs*.

The legal issues before the Court were whether the continued detention of the claimants, after the Administrative Appeals Tribunal had found they met the criteria for a protection visa, exceeded the constitutional limitation established in *NZYQ*. This involved determining whether, in circumstances where a claimant has a pending protection visa application, the question of a real prospect of removal from Australia becoming practicable in the reasonably foreseeable future arose. The Court was also asked to consider the availability of a constitutional writ of mandamus to compel the performance of a duty to consider the claimants' visa applications.

The High Court reasoned that detention for the purpose of processing visa applications is a legitimate, non-punitive purpose, distinct from detention solely for the purpose of removal. This purpose is considered valid because detention can facilitate essential investigations into identity, nationality, criminal history, security, and health, and allow for the imposition of conditions to mitigate risks associated with potential release. The Court found that the agreed facts did not provide a basis to infer that the continued detention of either applicant was other than reasonably necessary for the legitimate purpose of processing their visa applications. Therefore, the detention was not considered to be punitive or to contravene Chapter III of the Constitution.

In CZA19, the Court answered the separate question in the negative, declaring that the applicant's detention from 10 November 2022 to 13 May 2024 was not unlawful. In DBD24, the Court answered the question of law in the negative, finding that sections 189(1) and 196(1) of the *Migration Act* were not invalid on the grounds alleged. In both matters, the Court ordered that the Commonwealth pay the applicants' costs of the proceedings in the High Court.