JARK (representing a class as defined in Paragraph 1 of "Nature of the Claim" in the Writ of Summons) v Minister for Immigration and Border Protection and Anor; SAS v Minister for Immigration and Border Protection...

These proceedings concerned applications for judicial review of decisions made by the Minister for Immigration and Border Protection and the second respondent, concerning the detention of the applicants. The applicants, JARK and SAS, represented a class of individuals detained under the *Migration Act 1958* (Cth) and sought declarations that their detention was unlawful. The matter came before Crennan J of the High Court of Australia.

The central legal issue before the Court was whether the prolonged detention of the applicants, who were unable to be removed from Australia, constituted an unlawful exercise of executive power. Specifically, the Court was required to consider the scope of the executive's power to detain non-citizens under section 189 of the *Migration Act* and whether this power was subject to an implied limitation requiring the detention to be for a purpose that was reasonably connected to the power of removal.

Crennan J applied the principles established in *Al-Kateb v Godwin* and *Plaintiff S157/2002 v Commonwealth*, holding that the executive power to detain non-citizens under section 189 of the *Migration Act* is not unlimited and must be exercised for a purpose that is reasonably connected to the power of removal. His Honour found that the continued detention of individuals who could not be removed from Australia was not for a purpose reasonably connected to removal and therefore constituted an unlawful detention. The Court declared that the detention of the applicants was unlawful.