Minister for Immigration and Border Protection v CED16 & Anor

The Minister for Immigration and Border Protection appealed to the High Court of Australia against a decision of the Full Federal Court concerning the lawfulness of the detention of two individuals, CED16 and an unnamed applicant (referred to collectively as CED16 & Anor). The core of the dispute revolved around the validity of the detention of these individuals, who were non-citizens, following their arrival in Australia. The Minister contended that their detention was authorised by s 189(1) of the *Migration Act 1958* (Cth), which mandates the detention of non-citizens unlawfully in Australia. CED16 & Anor argued that their detention was unlawful because it was not for the purpose of removing them from Australia, but rather for the purpose of processing their claims for protection visas.

The High Court was required to determine whether the detention of a non-citizen under s 189(1) of the *Migration Act* must be for the purpose of removing that non-citizen from Australia, or if it can be for other purposes, such as processing their claims for protection visas. Specifically, the Court considered whether the detention authorised by s 189(1) is limited by the executive power of the Commonwealth to remove non-citizens from Australia, or if it extends to detention for the purpose of processing applications for visas.

The Court held that s 189(1) of the *Migration Act* authorises the detention of non-citizens who are unlawfully in Australia, and this detention is not confined to the purpose of removal. The majority reasoned that the text and structure of the *Migration Act* indicate that detention under s 189(1) is a prerequisite for the processing of protection claims and for the exercise of other powers under the Act, such as the grant of a visa. The Court affirmed that the executive power of the Commonwealth to remove non-citizens from Australia does not limit the scope of the legislative power to provide for detention for other purposes connected with the administration of immigration law. The appeal was allowed, and the orders of the Full Federal Court were set aside.