Paul Cutler's Migration Case Law Blog

Indefinite detention typically arises in circumstances where a person is held in immigration detention and it is not possible to remove them from Australia. In recent years a number of applicants who have alleged indefinite detention have had mixed success in obtaining writs of habeus corpus for their release (see for example my post about ALJ20). Those applications had to grapple with Al-Kateb v Godwin (2004) 219 CLR 562 which was authority for the lawfulness of indefinite detention.

The issue arises from the operation of sections 189(1) and 196(1) of the Migration Act dealing with the long term detention of unlawful non-citizens. Those sections, paraphrasing, require the detention of unlawful non-citizens but only until they are either: (a) granted a visa; or (b) removed from Australia. In the case of the latter there is a duty that the removal happen as soon as practicable.

November 2023 – NZYQ

NZYQ is a Rohingya muslim man who arrived in Australia by boat in 2012. While he was in the community on a bridging visa he committed a sexual offence against a child to which he pleaded guilty and was sentenced to 5 years imprisonment. He applied for a protection visa from jail. He was found to have a well founded fear of being returned to Myanmar, he was also found to be a danger to the Australian community. The result was that his protection visa was denied.

As a result, he found himself the subject of indefinite detention because he couldn’t be sent back to Myanmar and the effect of the conviction was that no other country in the world that would offer him resettlement. 

The Constitutional issue

All lawyers know that constitutional law is complicated. So, I am making a gross oversimplification by saying that at the heart of this decision is the difference between punishment (which can only be ordered by a court) and administrative detention. A recent example of how this works was the finding that it was an invalid use of power for the executive to administratively put an end to someone’s citizenship in some circumstances (see the Alexander case).

In NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, the High Court found that the statement in Al-Kateb that detention was non-punitive was incomplete. The Court found:

“The application of the principle in Lim, although ultimately directed to a single question of characterisation (whether the power is properly characterised as punitive), requires an assessment of both means and ends, and the relationship between the two.[52] Applying that principle in circumstances where there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future, it cannot be said that, objectively determined, the “purpose of the detention is to make the alien available for deportation” or “to prevent the alien from entering Australia or the Australian community” pending the making of a decision as to whether or not they will be allowed entry.

Accordingly, that purpose can’t be made out when there simply isn’t any real prospect of achieving removal from Australia.”

The result – no basis for indefinite detention

[71] The consequence of ss 189(1) and 196(1) of the Migration Act not validly applying to authorise the continuation of the plaintiff’s detention at the end of the hearing on 8 November 2023 is that the sole statutory basis relied on by the defendants for the continuation of his detention fell away and the plaintiff was entitled to his common law liberty. 

[72] Release from unlawful detention is not to be equated with a grant of a right to remain in Australia. Unless the plaintiff is granted such a right under the Migration Act, the plaintiff remains vulnerable to removal under s 198. Issuing of a writ of habeas corpus would not prevent re‑detention of the plaintiff under ss 189(1) and 196(1) of the Migration Act in the future if, and when, a state of facts comes to exist giving rise to a real prospect of the plaintiff’s removal from Australia becoming practicable in the reasonably foreseeable future. Nor would grant of that relief prevent detention of the plaintiff on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody.

So, a writ of habeas corpus requiring the release of NZYQ was issued forthwith. Of course we all know that the decision has generated lots of debate in the media and in parliament about releasing unsupervised non-citizen criminals into the community.

Creative commons acknowledgement for the photograph