NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

Sections 189(1) and 196(1) of the Migration Act 1958 (Cth), though authorising detention on their text, are invalid in their application to the plaintiff from the point when there was no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future; at that point, ongoing executive detention ceased to be for a legitimate and non-punitive purpose and thus contravened Ch III of the Constitution. The precedent in Al‑Kateb v Godwin on this constitutional issue is overruled to the extent it was inconsistent with the Lim principle. The plaintiff was unlawfully detained from 30 May 2023 and entitled to release.

Parties
Plaintiff: NZYQ; First Defendant: Minister for Immigration, Citizenship and Multicultural Affairs; Second Defendant: Commonwealth of Australia; Amicus Curiae: Australian Human Rights Commission; Amici Curiae: Human Rights Law Centre and the Kaldor Centre for International Refugee Law
Jurisdiction
Australia
Judgment Date
28 November 2023
Procedural Posture
Constitutional Challenge (special Case) / Full Court Hearing and Order on Special Case
Outcome
Plaintiff succeeded in constitutional challenge; detention declared unlawful after 30 May 2023; writ of habeas corpus issued; costs awarded to plaintiff.
Legal Topics
Judicial Power of the Commonwealth, Indefinite Immigration Detention, Validity of Executive Detention, Remedies for Unlawful Detention, Separation of Powers
Constitutional Law Immigration Law Judicial Power of the Commonwealth Indefinite Immigration Detention Validity of Executive Detention Remedies for Unlawful Detention Separation of Powers

Case Brief

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Parties

NZYQ

Plaintiff

Minister for Immigration, Citizenship and Multicultural Affairs

First Defendant

Commonwealth of Australia

Second Defendant

Australian Human Rights Commission

Amicus Curiae

Human Rights Law Centre and the Kaldor Centre for International Refugee Law

Amici Curiae

Procedural Posture

Constitutional Challenge (special Case) / Full Court Hearing and Order on Special Case

Legal Issues

  1. 1 Whether ss 189(1) and 196(1) of the Migration Act 1958 (Cth) as applied to the plaintiff are within the legislative power of the Commonwealth
  2. 2 Whether executive detention beyond the point of 'no real prospect' of removal is punitive and contrary to Ch III of the Constitution
  3. 3 Whether the statutory construction and/or constitutional holding in Al‑Kateb v Godwin should be reopened and overruled

Ratio Decidendi

Sections 189(1) and 196(1) of the Migration Act 1958 (Cth), though authorising detention on their text, are invalid in their application to the plaintiff from the point when there was no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future; at that point, ongoing executive detention ceased to be for a legitimate and non-punitive purpose and thus contravened Ch III of the Constitution. The precedent in Al‑Kateb v Godwin on this constitutional issue is overruled to the extent it was inconsistent with the Lim principle. The plaintiff was unlawfully detained from 30 May 2023 and entitled to release.

Court Disposition

Plaintiff succeeded in constitutional challenge; detention declared unlawful after 30 May 2023; writ of habeas corpus issued; costs awarded to plaintiff.

Orders

  • Declaration that plaintiff's detention was unlawful as at 30 May 2023 and continued to be unlawful thereafter by reason of there having been and continuing to be no real prospect of removal practicable in the reasonably foreseeable future.
  • A writ of habeas corpus requiring the defendants to release the plaintiff forthwith.