NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs

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.