Stateless and Detained: How NZYQ Changes the Legal Landscape of Immigration Law

The recent High Court decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (‘NZYQ’) has held that the indefinite detention of unlawful non-citizens with no prospects of removal from Australia is unconstitutional. The power to punish and imprison individuals is a strictly judicial power that is reserved to a court. However, the continued detention of unlawful non-citizens seeking to enter Australia has often come into conflict with this power, leading to the rise of a constitutional issue – is such detention punitive in nature?

Background Facts

An unlawful non-citizen is defined under section 14(1) of the Migration Act 1958 (Cth) as effectively being any non-citizen in Australia who does not hold a visa. Unlawful non-citizens must be detained under section 189 and are to be kept in immigration detention until they are removed (section 196). Under section 198, unlawful non-citizens may request to be removed from Australia as soon as reasonably practicable.

The plaintiff in NZYQ was a stateless Rohingya Muslim who was born in Myanmar and arrived in Australia in 2012, where they were granted a bridging visa that allowed them to lawfully remain in 2014. However, after committing a sexual offence against a minor, the plaintiff was imprisoned and afterwards held in immigration detention. Due to the offence, the plaintiff was unable to successfully secure a protection visa and had requested to be removed from Australia in 2022. The issue, however, was determining where to send the plaintiff. As a stateless citizen convicted of a serious offence, there was no real prospect of removing him to any other country. Hence, he was kept in immigration detention for an indefinite period. 

The precedent of Al-Kateb and Lim

The 2004 case of Al-Kateb held that sections 189 and 196 required the continued detention of an unlawful non-citizen who also had no prospects of removal and that such detention was not unconstitutional. The plaintiff in NZYQ was granted special leave to the High Court to reopen the latter ground in Al-Kateb and challenge the constitutionality of his detention. Reliance was also placed on the constitutional principle established in the case of Chu Kheng Lim that detention without an adjudication of guilt is valid only to the extent that it is reasonably necessary for the purpose of deportation or the consideration of an application for entry. Longer instances of detention are more likely to be viewed as punitive and thus beyond the scope of executive power. 

Implications of NZYQ

In NZYQ it was argued that the legitimate purpose that can be used to justify the detention of a non-citizen must be distinct from the act of detention itself. The High Court did not accept the purpose of separating non-citizens from the Australian community through detention. If a non-citizen is detained for the purpose of deciding whether or not they should be granted a visa, their detention is ancillary to and a necessary incident of this purpose. Similarly, detention pending removal serves a similar goal. However, where there are no prospects at all of successfully removing an individual, their detention will lack a legitimate purpose to justify it as non-punitive.

As such, the decision in NZYQ is limited in application to individuals with no prospects of removal and does not affect the validity of detention of unlawful non-citizens in more ordinary circumstances. Legislative amendments to the Migration Act following NZYQ have sought to remedy the issue by providing subclass 070 Bridging Visas to individuals in similar circumstances pending removal.

How Can Agape Henry Crux Help You

If you find yourself in a similar situation like this case, speak to an Accredited Specialist for valuable and tailored advice to your case, before it is too late. You can book a Migration Planning Session with one of our Accredited Specialist and immigration lawyers to seek professional advice by calling 02-83105230 or email us to book a time at info@ahclawyers.com.

We speak fluent English, Mandarin, Cantonese and Malay. If these aren’t your language, we can also help you arrange an interpreter.

This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact our office.

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