GAGELER CJ, GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ
NZYQ PLAINTIFF
AND
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS & ANOR DEFENDANTS
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] HCA 37
Date of Hearing: 7 & 8 November 2023 Date of Order: 8 November 2023 Date of Publication of Reasons: 28 November 2023
S28/2023
ORDER
The questions stated for the opinion of the Full Court in the further amended special case filed on 31 October 2023 be answered as follows:
Question 1: On their proper construction, did sections 189(1) and 196(1) of the Migration Act 1958 (Cth) authorise the detention of the plaintiff as at 30 May 2023?
Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).
Question 2:If so, are those provisions beyond the legislative power of the Commonwealth insofar as they applied to the plaintiff as at 30 May 2023?
Answer:Yes.
Question 3:On their proper construction, do sections 189(1) and 196(1) of the Migration Act 1958 (Cth) authorise the current detention of the plaintiff?
Answer:Yes, subject to section 3A of the Migration Act 1958 (Cth).
Question 4:If so, are those provisions beyond the legislative power of the Commonwealth insofar as they currently apply to the plaintiff?
Answer:Yes.
Question 5:What, if any, relief should be granted to the plaintiff?
Answer:The following orders should be made:
(1)It is declared that, by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future:
(a)the plaintiff's detention was unlawful as at 30 May 2023; and
(b)the plaintiff's continued detention is unlawful and has been since 30 May 2023.
(2)A writ of habeas corpus issue requiring the defendants to release the plaintiff forthwith.
Question 6:Who should pay the costs of the further amended special case?
Answer:The defendants.
Representation
C L Lenehan SC and F I Gordon KC with J S Stellios and T M Wood for the plaintiff (instructed by Allens)
S P Donaghue KC, Solicitor-General of the Commonwealth, and P D Herzfeld SC with Z C Heger and A M Hammond for the defendants (instructed by Australian Government Solicitor)
P M Knowles SC with M F Caristo for the Australian Human Rights Commission, appearing as amicus curiae (instructed by Australian Human Rights Commission)
R C A Higgins SC with A M Hochroth, J R Murphy and K E W Bones for the Human Rights Law Centre and the Kaldor Centre for International Refugee Law, appearing as amici curiae (instructed by Human Rights Law Centre)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs
Constitutional law (Cth) – Judicial power of Commonwealth – Immigration detention – Indefinite detention without judicial order – Where plaintiff stateless Rohingya Muslim having well-founded…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Case
[2023] HCA 37
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the constitutional validity of indefinite immigration detention in the case of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs. The plaintiff, a stateless Rohingya Muslim with a well-founded fear of persecution in Myanmar, was detained under section 189 of the *Migration Act 1958* (Cth) after his bridging visa was cancelled following a criminal conviction. Despite his protection visa application being refused and attempts to remove him from Australia proving unsuccessful with no realistic prospect of removal in the foreseeable future, the plaintiff remained in detention under sections 196(1) and 198 of the Act, which mandate detention until removal, deportation, or grant of a visa. The plaintiff sought a writ of habeas corpus for his immediate release.
The central legal issues before the Court were whether the constitutional holding in *Al-Kateb v Godwin* (2004) 219 CLR 562, which upheld the validity of indefinite detention for unlawful non-citizens pending removal, should be reopened or overruled, and whether the plaintiff's detention was punitive and therefore contrary to Chapter III of the Australian Constitution. Specifically, the Court had to determine if the detention served a legitimate, non-punitive purpose and if it was reasonably capable of being seen as necessary for such a purpose, particularly given the lack of a real prospect of removal.
The High Court, by majority, answered the questions stated for its opinion. It found that sections 189(1) and 196(1) of the *Migration Act* did authorise the plaintiff's detention as at 30 May 2023 and continued to authorise his current detention, subject to section 3A of the Act. However, the Court also held that these provisions were beyond the legislative power of the Commonwealth in their application to the plaintiff. The Court declared that the plaintiff's detention was unlawful as at 30 May 2023 and that his continued detention had been unlawful since that date, due to the absence of any real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. Consequently, the Court ordered the issue of a writ of habeas corpus requiring the plaintiff's immediate release and ordered the defendants to pay the costs of the special case.
Orders
Orders of the court
The questions stated for the opinion of the Full Court in the further amended special case filed on 31 October 2023 be answered as follows:
Question 1: On their proper construction, did sections 189(1) and 196(1) of the Migration Act 1958 (Cth) authorise the detention of the plaintiff as at 30 May 2023?
Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).
Question 2:If so, are those provisions beyond the legislative power of the Commonwealth insofar as they applied to the plaintiff as at 30 May 2023?
Answer: Yes.
Question 3:On their proper construction, do sections 189(1) and 196(1) of the Migration Act 1958 (Cth) authorise the current detention of the plaintiff?
Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).
Question 4:If so, are those provisions beyond the legislative power of the Commonwealth insofar as they currently apply to the plaintiff?
Answer: Yes.
Question 5:What, if any, relief should be granted to the plaintiff?
Answer: The following orders should be made:
(1) It is declared that, by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future:
(a) the plaintiff's detention was unlawful as at 30 May 2023; and
(b) the plaintiff's continued detention is unlawful and has been since 30 May 2023.
(2) A writ of habeas corpus issue requiring the defendants to release the plaintiff forthwith.
Question 6:Who should pay the costs of the further amended special case?