NZYQ is an undocumented stateless person whose age cannot be established, who entered Australian territorial waters by boat in 2012 seeking asylum.
The Minister for Immigration at that time was Labor MP Chris Bowen. During the subsequent years to date the following members of the government of the day have held that office: Labor MPs Brendan O'Connor & Tony Burke; Liberal MPs Scott Morrison, Peter Dutton, David Coleman, Alan Tudge (acting) & Alex Hawke; with the current incumbent being Labor MP Andrew Giles.
Since June 2017 NZTQ has been seeking resolution of his matter in the Australian lower courts and finally in the High Court of Australia in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 153 before the full Court.
Human Rights Law Centre, media release, 8 November 2023:
Indefinite immigration detention unlawful: High Court rules
The High Court has today ruled that it is unlawful and unconstitutional for the Australian Government to detain people indefinitely in immigration detention.
Nearly 20 years ago, the High Court upheld the constitutional validity of indefinite immigration detention in the case of Al-Kateb v Godwin. Today, a majority of judges of the Court overruled that decision.
In this landmark legal challenge, brought by a person referred to by the pseudonym NZYQ, it was argued that Al-Kateb was wrongly decided, and that it is unlawful and unconstitutional for the Australian Government to continue to detain a person where there is no real prospect that they could be removed from Australia.
Subsequent to the 2004 decision, attempts to overturn it failed. As a result, the Australian Government has routinely detained people for prolonged periods of time – some for over a decade.
Today, the average period of time for which the Australian Government holds people in immigration detention is 708 days. There are 124 people in detention today whom the Government has detained for over five years. Many of those people are stateless or owed protection by Australia, meaning that they cannot be returned to their countries of origin as a matter of international law.
The Human Rights Law Centre and UNSW’s Kaldor Centre for International Refugee Law appeared as amici curiae – friends of the court – to successfully argue that detention is unlawful for any person the Government is unlikely to remove in the foreseeable future.
Quotes attributable to Sanmati Verma, Acting Legal Director at the Human Rights Law Centre:
“Indefinite detention ends today. The High Court has overturned a two-decades-old authority that allowed the Government to lock people up in immigration detention potentially for the rest of their lives. Today, the High Court held that the Government can no longer detain people if there is no real prospect that it will become practicable to remove them from Australia in the reasonably foreseeable future. Detention in these circumstances is unconstitutional.
“This has life-changing consequences for people who have been detained for years without knowing when, or even if, they will ever be released.
“The government must respect the constitutional limits of detention and act immediately to free people who have been indefinitely detained.”
Quotes attributable to Professor Jane McAdam AO, Director of UNSW’s Kaldor Centre for International Refugee Law:
“Indefinite detention has always been arbitrary and unlawful under international law. We welcome the High Court’s decision today, which will mean that Australia can no longer detain people for years on end. For decades, Australia’s approach to detention has been completely out of step with that of other democratic countries. As a result of this significant decision, this will now have to change.
“This is an important and long-awaited victory for human rights.”
Excerpt from NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (8 November 2023), 8 November 2023:
AT 4.17 PM SHORT ADJOURNMENT
UPON RESUMING AT 4.33 PM:
GAGELER CJ: The order I am about to pronounce is the order of the Court with which at least a majority agrees. The Court will publish its reasons for the order in due course. The order is:
The questions stated for the opinion of the Full Court in the further amended special case filed on 31 October 2023 be answered as follows:
Question 1: On their proper construction, did sections 189(1) and 196(1) of the Migration Act 1958 (Cth) authorise the detention of the plaintiff as at 30 May 2023?
Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).
Question 2: If so, are those provisions beyond the legislative power of the Commonwealth insofar as they applied to the plaintiff as at 30 May 2023?
Answer: Yes.
Question 3: On their proper construction, do sections 189(1) and 196(1) of the Migration Act 1958 (Cth) authorise the current detention of the plaintiff?
Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).
Question 4: If so, are those provisions beyond the legislative power of the Commonwealth insofar as they currently apply to the plaintiff?
Answer: Yes.
Question 5: What, if any, relief should be granted to the plaintiff?
Answer: The following orders should be made:
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. [my yellow highlighting]
Question 6: Who should pay the costs of the further amended special case?
Answer: The defendants.
The Court will now adjourn until 9.30 am tomorrow for the pronouncement of orders and otherwise until 10.00 am.
AT 4.36 PM THE MATTER WAS ADJOURNED
The Dept. of Home Affairs has reportedly stated that there are 92 detainees who were in a similar position to the Rohingya man, NZYQ.
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