High Court Rules Indefinite Detention is Unlawful

On 8 November 2023, the High Court of Australia delivered its decision in the matter of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor. The decision found that indefinite immigration detention is unlawful, overturning the 2004 High Court decision of Al Kateb v Godwin, in which the court held that such detention was lawful. As a result of the ruling, 84 detainees have now been released from detention and the legality of the detention of a further 340 people is in doubt. This page summarises the court’s decision.

Facts of NZYQ v. Minister for Immigration

The matter of NZYQ v Minister concerned a stateless Rohingyan man whose bridging visa was cancelled after he was charged with a criminal offence. As a stateless person, the man could not be returned to his country of origin or to any third country as usually occurs when a person becomes an unlawful non-citizen.

The man, who was not yet thirty, had already spent five years in detention and was facing ongoing detention for the rest of his life as there was no viable option for removing him from Australia. He argued that his detention was unlawful as there was no country that was willing to receive him, and he therefore had no real prospect of being removed from Australia in the foreseeable future.

Al Kateb v Godwin

The matter of NZYQ v Minister required the High Court to reconsider its 2004 decision in the matter of Al Kateb v Godwin. Al Kateb v Godwin dealt with a factual situation very similar to the one under consideration in this case. The decision established that indefinite detention was lawful under the Migration Act 1958.

Al Kateb was a stateless Palestinian man who had been refused a protection visa and taken into detention as an unlawful non-citizen for the purpose of removing him from the country. As he was a stateless person, removing him from the country was a practical impossibility and he faced detention for the rest of his life.

He argued that his detention was unlawful.

A majority of the High Court held that Al Kateb’s indefinite detention was lawful under the Migration Act 1958 as the detention was administrative and not punitive in character. The man’s detention was continuing for the purpose of removing him from Australia notwithstanding that that purpose was presently incapable of being fulfilled. A minority of the bench found that the Migration Act 1958 should not be interpreted as permitting indefinite immigration detention.

The Minister of Immigration subsequently intervened and granted Al Kateb a visa on a discretionary basis. The man was released from immigration detention but the High Court’s decision in his matter remained good law.

Decision in NZYQ v Minister

In the matter of NZYQ v Minister, the High Court heard submissions from the plaintiff including that:

• the man’s detention was unlawful as it was for the purpose of removing him from Australia and his removal was incapable of fulfilment.
• the Migration Act 1958 should not be interpreted as authorising indefinite detention as this practice is contrary to principles of international law.

The High Court heard submissions from the defendants including that:

• the removal of the plaintiff from Australia was not ‘incapable of fulfilment’ as the government was continuing to try to identify countries to which he could be removed.
• there were also other ways that the man’s detention could come to an end – for example, the Minister could grant him a visa on a discretionary basis.

The High Court found in favour of the plaintiff, stating:

“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.

A writ of habeas corpus issue requiring the defendants to release the plaintiff forthwith.”

Consequences of the decision

The High Court’s decision had led to the release of 84 detainees who were previously facing indefinite detention. Refugee advocates welcomed the decision as a victory for human rights and the rule of law, while opposition leader Peter Dutton claimed it has led to the release of ‘hardcore criminals’ into the community.

A week after the decision, the government passed amendments to the Migration Act 1958 that impose strict conditions on the bridging visas of detainees who have been released as a result of the decision, including the mandatory imposition of a curfew and electronic monitoring. It also introduced a raft of criminal offences carrying mandatory sentences of imprisonment that are committed when bridging visa conditions are breached. The amendments have been criticised by refugee advocates as ‘government overreach’ and as seeking to replace one form of detention with another.

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