NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs

Parties (including notable third parties)

NZYQ (Plaintiff); Minister for Immigration, Citizenship and Multicultural Affairs (Defendants); Australian Human Rights Commission, appearing as amicus curiae; The Human Rights Law Centre and the Kaldor Centre for International Refugee Law, appearing as amici curiae

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Summary of Facts

The plaintiff (NZYQ) is a stateless Rohingya person who was born in Myanmar. He arrived in Australia by boat in 2012 and was detained in immigration detention (under s 189 Migration Act 1958 (Cth) (“Migration Act”).

In 2014 he was granted a bridging visa.

In 2016, NZYQ pleaded guilty to a sexual offence against a child and was sentenced to imprisonment for five years. During his imprisonment, he applied for a protection visa. He was released on parole in 2018 and taken into immigration detention (under s 189(1) Migration Act).

The plaintiff’s application for a protection visa was considered in 2020. He was found to have a well-founded fear of persecution in Myanmar and to be a refugee to whom Australia had protection obligations. However, given his conviction there was found to be reasonable grounds for considering him a danger to the Australian community, he therefore failed to satisfy the s 36(1C)(b) criterion for a protection visa. On that basis, his application was refused.

On appeal to the Administrative Appeals Tribunal, this decision was affirmed. An application for judicial review made to the Federal Court of Australia was dismissed in 2022. This engaged the duty upon the Department of Home Affairs to remove the plaintiff from Australia as soon as reasonably practicable (under s 198(6) Migration Act). In 2022, the plaintiff wrote to the Minister requesting his removal (triggering another removal duty under s 198(1) of the Migration Act).

However, being stateless, the plaintiff did not have the right to enter or reside in Myanmar. Although he had relatives in Saudi Arabia and Bangladesh, there was no real prospect of him obtaining a right to enter or reside in those countries, given his conviction.

Given the impossibility of removal, on 5 April 2023,  the plaintiff brought proceedings against the Minister and the Commonwealth of Australia under s 75(v) of the Constitution and s 30 of the Judiciary Act 1903 (Cth), claiming (1) his continuing detention was not authorised by ss 189(1) and 196(1) of the Migration Act; or, in the alternative (2) ss 189(1) and 196(1) of the Migration Act contravened Ch III of the Constitution.

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Legal Arguments

The arguments of the parties and of the amici curiae on the hearing of the special case were primarily directed to whether the leave to reopen Al-Kateb sought by the plaintiff should be granted and, if so, whether Al-Kateb should be overruled.

Outcome

The Court held that the plaintiff was unsuccessful in his argument that his continuing detention was not authorised on the proper construction of ss 189(1) and 196(1) of the Migration Act but succeeded in his claim that his continuing detention contravened Ch III of the Constitution.

The court discussed the construction of 189(1) Migration Act (imposing a duty on an officer to detain a person who the officer "knows or reasonably suspects ... is an unlawful non-citizen") and s 196(1), which provides that the unlawful non-citizen "must be kept in immigration detention until" the occurrence of one of several specified events. One of those events, specified in s 196(1)(c), is that "he or she is granted a visa". Another, specified in s 196(1)(a), is that "he or she is removed from Australia under [s] 198". Section s 198 imposes duties on an officer to remove an unlawful non-citizen from Australia "as soon as reasonably practicable" in a range of specified circumstances. These include if requested by the person in writing (s 198(1)) and where an application for a visa has been finally determined (s 198(6)).

The court discussed the decision in Al-Kateb v Godwin (2004) 219 CLR 562, which examined the application of ss 189(1) and 196(1) to an unlawful non-citizen in respect of whom there was no real prospect of removal under s 198(1) or s 198(6) becoming practicable in the reasonably foreseeable future (because the plaintiff was stateless). In that case, the majority of the Court held that ss 189(1) and 196(1) required the continuing detention of Al-Kateb and that these provisions did not contravene Ch III of the Constitution.

The Court ruled against the reopening of the statutory construction holding from Al-Kateb. However, they ruled in favour of reopening of the constitutional holding in Al-Kateb. The Court referred to the three background principles set out in the decision of Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

The Court referred to a constitutional principle for determining the validity of the sections of the Migration Act at issue in that case: the relevant sections ‘will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered.’ [in Lim at 29]. The Court noted that the constitutional principle established in Lim has been frequently applied by the High Court, such that ‘[t]he consequence is that the constitutional holding in Al-Kateb has come increasingly to appear as an outlier in the stream of authority which has flowed from Lim.’ [35]

‘Expressed at an appropriate level of generality, the principle in Lim is that a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive  purpose. In other words, detention is penal or punitive unless justified as otherwise.’ [39]

The Court held that:

‘expressing the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia as coming to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future follows directly from the principle in Lim. This is the appropriate expression of the applicable constitutional limitation under a statutory scheme where there is an enforceable duty to remove an alien from Australia as soon as reasonably practicable.’ [55]

Given there was no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future, it followed that ss 189(1) and 196(1) of the Migration Act did not validly apply to authorise the continuation of the plaintiff's detention. There was therefore no statutory basis for the continuing detention of the plaintiff.

The plaintiff was entitled to relief including a declaration that his continuing detention has been unlawful since 30 May 2023 and continued to be unlawful due to the fact of ‘there having then been, and continuing to be, no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future.’ [9] The  order also included a writ of habeus corpus requiring NZYQ’s immediate release.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	Constitution	s 51(xix), Ch III.
Domestic	Migration Act 1958 (Cth)	ss 3A, 189, 196, 198.

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Hannah Gordon, ‘NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs’: The End of Indefinite Immigration Detention in Australia?’ (2024) 6(1) Statelessness & Citizenship Review 143

• This case note explores the implications of the NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs High Court decision on indefinite immigration detention in Australia
• It provides the background to the Australian legal framework and policy of immigration detention and how the High Court has interpreted the constitutional principle of the separation of powers as it applies to immigration detention
• It summarises the facts, reasoning and decision in the case
• Gordon notes that  NZYQ and 149 other people in the same category of persons were granted temporary ‘bridging’ visas with limited rights explores the implications for stateless people in Australia, pointing out that the lack of a statelessness determination procedure, a distinct visa category for stateless people or a clear pathway to permanent residency for stateless people in Australia ‘means that stateless people impacted by this decision may remain in a form of limbo — unable to live in Australia long term, and unable to be ‘returned’ to another country.’ (149)

Samuel Naylor, ‘NZYQ and Constitutional Culture’ (2024) 49(3) Alternative Law Journal 224

• Argues that ‘at the fallout from NZYQ illustrates a deficit of constitutional culture in Australia’ (225)
• Summarises the decision and discusses the political implications of the decision, including discourse from Opposition Leader Peter Dutton suggesting the release of NZYQ and 149 others form immuration detention has security implications for the Australian public. It also discusses the establishment of a Community Protection Biard ‘to give transparency as to who was being released and under what conditions’ (226) and the imposition of requirements on the former detainees to wear GPS monitoring devices and be subject to a curfew.
• ‘the reaction to NZYQ illustrates a deficit of constitutional culture because one would expect that if Australia, including its politicians, had a deeper connection to the Constitution and the freedoms protected therein, the value of the Court’s decision as a public good, as a safeguard on individual liberty, would be more apparent.’ (226)

Thomas McClure and Mahya Panahkhahi, ‘Indefinite Detention Deported at Last: NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 415 Adelaide Law Review 254

• This case note sets out the legal background to NZYQ, explains the facts and the Court’s decision and reasoning, and explores the decision’s implications, arguing ‘the decision is doctrinally sound, but the federal government’s severe legislative response may infringe human rights and raise further issues regarding constitutional validity’. (686-687)
• ·This case note observes the brevity of the judgement and suggests the fact it was a unanimous judgment (except for a divergence in one step of the reasoning from Edelman J) reinforced the perceived legitimacy of the Court’s overruling of Al-Kateb.
• It comments on the discourse about public safety that followed the decision and the legislation passed by the parliament tin response, including the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth). This Act established a new bridging visa which would be accompanied by mandatory monitoring conditions, a curfew and a requirement to wear an electronic monitoring device. The authors observe that the curfew and monitoring restrictions were found to be unconstitutional in the case of YBFZ.