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

In NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (‘NZYQ’), the High Court held invalid provisions of the Migration Act 1958 (Cth) (‘Migration Act’) insofar as they applied to require the continuing detention of an unlawful non-citizen in respect of whom there is no real prospect of removal becoming practicable in the reasonably foreseeable future.

In reaching that conclusion, the High Court overturned the conclusion in Al-Kateb v Godwin (2004) 219 CLR 562 (‘Al-Kateb’) that the same application of the same provisions of the Migration Act was not contrary to ch III of the Constitution.

Facts and procedural history

The plaintiff was a stateless Rohingya Muslim who was born in Myanmar. He arrived in Australia by boat in 2012, and in 2014 was granted a bridging visa. In 2016, he pleaded guilty to a sexual offence against a child and was sentenced to imprisonment. He was released from prison on parole in 2018 and taken into immigration detention.

Before being released on parole, the plaintiff had applied for a protection visa. A delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) found that the plaintiff held a well-founded fear of persecution in Myanmar and that he was a refugee to whom Australia owed protection obligations, but refused to grant a protection visa on the basis that there were reasonable grounds for considering the plaintiff a danger to the Australian community given his conviction.

The plaintiff sought judicial review of the delegate’s decision in the Administrative Appeals Tribunal, which affirmed the delegate’s decision. An appeal to the Federal Court from the tribunal’s decision was similarly unsuccessful. The Federal Court’s determination engaged the duty imposed on officers of the Department of Home Affairs (‘Department’) by s 198(6) of the Migration Act to remove the plaintiff from Australia as soon as reasonably practicable. In 2022, the plaintiff wrote to the Minister requesting his removal, which engaged the same duty imposed on officers by s 198(1) of the Migration Act.

The plaintiff, however, remained in immigration detention and in 2023 he commenced proceedings in the High Court. The plaintiff claimed that his continuing detention was not authorised by ss 189(1) and 196(1) of the Migration Act as a matter of the proper construction of those provisions or alternatively because those provisions contravened ch III of the Constitution.

On 31 May 2023, the plaintiff and the Commonwealth agreed a special case which included that: (1) the plaintiff could not be removed from Australia; (2) there was no real likelihood or prospect of the plaintiff being removed from Australia in the reasonably foreseeable future; and (3) as a matter of reasonable practicability, it was unlikely that the plaintiff would be removed from Australia in the foreseeable future.

Orders

The High Court heard the proceedings on 7 and 8 November 2023. At the end of oral argument, the Chief Justice pronounced the order of the court with which ‘at least a majority’ agreed. The court ordered that on their proper construction, the provisions of the Migration Act which authorised the plaintiff’s detention were beyond the Commonwealth’s legislative power insofar as they applied to the plaintiff on 30 May 2023 and currently. The court delivered its reasons on 28 November 2023 in a single judgment.

Key legislative provisions and Al-Kateb

Section 189(1) of the Migration Act provides that ‘[i]f an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person’. An ‘unlawful citizen’ is relevantly defined as a person who is not an Australian citizen and who does not hold a valid visa permitting them to travel to and enter Australia or to remain in Australia: see ss 14(1) and 29(1).

Section 196(1) provides that ‘an unlawful non-citizen detained under s 189 must be kept in immigration detention until’ one of four specified events, including that the person is removed from Australia under s 198 or s 199 (s 196(1)(a)) or that the person is granted a visa (s 196(1)(a)).

Section 198(1) provides that ‘[a]n officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed’. Section 198(6) imposes the same duty on an officer in respect of an unlawful non-citizen who has applied for a visa that has been refused and whose application has been finally determined.

The same legislative provisions were the subject of the High Court’s decision in Al-Kateb. In that case a majority (McHugh, Hayne, Callinan and Heydon JJ) held that, on their proper construction, ss 189(1) and 196(1) of the Migration Act applied to require the continuing detention of an unlawful non-citizen in respect of whom there was no real prospect of removal under sub-ss 198(1) or 198(6) becoming practicable in the reasonably foreseeable future. The same majority held that ss 189(1) and 196(1) so applied were not contrary to ch III of the Constitution.

The plaintiff sought leave to reopen the statutory construction holding and the constitutional holding in Al-Kateb and if leave was granted, to overrule those holdings.

Reopening Al-Kateb

The court refused leave to reopen the statutory construction holding in Al-Kateb. The court explained that ‘the process of reasoning which led the majority in Al Kateb [to that holding had not] overlooked any principle of statutory construction on which the minority in Al Kateb relied or on which the plaintiff and amici had placed emphasis in argument before the court’: at [19], see also [23]. The court also referred to matters of legislative reliance on, and implicit legislative endorsement of, the statutory construction in Al-Kateb as well as the majority’s decision in The Commonwealth v AJL20 (2021) 273 CLR 43, which had endorsed key aspects of the majority’s reasoning in relation to the statutory construction in Al-Kateb: at [22].

The court granted leave to reopen the constitutional holding in Al-Kateb. It held that ‘the weight of the consideration of continuity and consistency in the application of [the] constitutional principle [formulated and applied in Lim, see following] ultimately compels the conclusion that leave to reopen the constitutional holding in Al-Kateb should be granted’: at [37]. Stated at a high level of generality, the constitutional principle from Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (‘Lim’) (‘the Lim principle’) is that ‘a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose’: at [39].

The court stated that the Lim principle insists that ‘the detention of an alien must be limited to a period that is ‘reasonably capable of being seen as necessary’ for [the purposes of] removing the alien from Australia or enabling an application by the alien for permission to remain in Australia to be made and considered’: at [31]. The court considered the Lim principle difficult to reconcile with the constitutional holding in Al-Kateb and with those passages of the majority’s reasoning in Al-Kateb which could be read as suggesting that ch III did not apply to the detention of an alien in the same way it applied to the detention of a non-alien: at [31]. The court also referred to cases since Al-Kateb, in which the court had repeatedly acknowledged and applied the Lim principle, which were said to have weakened the authority of the constitutional holding in Al-Kateb to a degree that weighed strongly in favour of its reopening: at [35].

Reconsidering Al-Kateb in light of Lim

Having reopened the constitutional holding in Al-Kateb, the court was unanimous in overruling it. The court began by setting out the statement from McHugh J’s judgment in Al-Kateb (at [45]) that the detention of an alien was non-punitive, and therefore valid, ‘as long as 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’: at [42]–[43]. Their Honours considered that statement to be an incomplete and, accordingly, inaccurate statement of the applicable principle. However, the court split on why that was so.

Six members of the court (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ) held that ‘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’: at [44]. Their Honours explained that ‘the Lim principle would be devoid of substance were it enough to justify detention, other than through the exercise of judicial power … that the detention be designed to achieve an identified legislative objective that there is no real prospect of achieving in the reasonably foreseeable future’: at [44]. Their Honours rejected the Commonwealth’s submission that a legitimate purpose of detention was separation from the Australian community because ‘such a purpose impermissibly conflates detention with the purpose of detention and renders any inquiry into whether a law authorising the detention is reasonably capable of being seen to be necessary for the identified purpose circular and self fulfilling’: at [49].

In contrast, Edelman J considered the purpose of ss 189(1) and 196(1) of the Migration Act – which he identified as ‘detention pending removal to ensure that the unlawful non-citizen will remain ‘available for deportation when that becomes practicable’’ – legitimate: at [53]. The problem for his Honour was that none of the majority judges in Al Kateb asked whether those provisions were reasonably capable of being seen as necessary to the purpose of processing and removing an unlawful non-citizen where there was no real prospect of removal becoming practicable in the reasonably foreseeable future: at [54]. His Honour considered that question and answered it in the negative: at [54].

Applying the constitutional limitation to the plaintiff’s case

As noted earlier, the parties had agreed that as at 30 May 2023 that there was ‘no real prospect of the plaintiff being removed from Australia in the reasonably foreseeable future’: at [63]. The position after 30 May 2023 was different. Since that time, the Department had taken steps to explore whether there were any options for the removal of the plaintiff from Australia. Those steps included an inquiry by officers into whether the United States would accept the plaintiff, resulting in a response on 30 September 2023 from the US Department of State that it would ‘consider’ the plaintiff’s case and ‘have a hard look’ but that it required more detail about the plaintiff’s criminal offending and would need to confer with the Department of Homeland Security and Citizenship and Immigration Services. Based on that evidence, the court held that although removal of the plaintiff to the US remained a possibility, the Commonwealth had failed to establish that the prospect of removal to the US occurring in the foreseeable future was realistic: at [66]. It followed that ‘by the end of the hearing there was, and had been since 30 May 2023, no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future’: at [70]. This meant that that ss 189(1) and 196(1) of the Migration Act did not validly apply to authorise the continuation of the plaintiff’s detention and had not validly applied to authorise the plaintiff’s detention since 30 May 2023: at [70].

The court held that the plaintiff was therefore entitled to his common law liberty, there being no other statutory basis that the Commonwealth had relied upon to detain him: at [71]. The court made clear, though, that the plaintiff’s release did not give him a right to remain in Australia and that he was vulnerable to removal under s 198 of the Migration Act: at [72]. It added that the plaintiff’s release did not prevent his detention pursuant to another statute, such as one providing for preventive detention of a child sex offender: at [72].

Some observations on the judgment

There were two unusual features of the court’s reasons. The first is that the reasons recorded that the order of 8 November 2023 was announced as having been agreed to by ‘at least a majority’ because Gleeson and Jagot JJ did not agree that the court should make orders without publishing reasons and, in any event, required further time to consider the matter: at [8]. The second is the way the judgment dealt with the different approaches between six members of the court and Edelman J. Ordinarily, Edelman J would have written a separate judgment rather than setting out his reasons in the court’s single judgment.²

A single judgment has enormous significance: it gives clarity to the Parliament as to the limits of its power to detain aliens and makes it less likely that the Commonwealth will apply to reopen the case (because its chance of success is low). One disadvantage, perhaps, is that to achieve agreement, it may have been necessary for the judgment to state principles at a high level of generality. As courts apply the principles from NZYQ, issues may emerge that may require the High Court to explain the principles from NZYQ with greater specificity.³ BN

This is an abridged version of a speech which Megan Caristo gave as part of a seminar hosted by the Australian Association of Constitutional Law on 7 February 2024 and chaired by the Honourable Justice Kirk. Megan appeared as junior counsel for the Australian Human Rights Commission, who were amicus curiae in the proceedings.

ENDNOTES

^{1 Al-Kateb v Godwin (2004) 219 CLR 562.
2 The court’s approach is not entirely without precedent: see Morley & Ors v Australian Securities and Investments Commission [2010] NSWCA 331; 81 ACSR 285: at [767] [777].
3 See already ASF17 v Commonwealth (High Court, P7/2024) which was removed into the High Court on 22 February 2024 and is listed for hearing in April 2024.}