Content area
Full text
I INTRODUCTION
On 8 November 2023, the High Court of Australia ('High Court') ordered the immediate release of a stateless refugee known as 'NZYQ' from immigration detention. The order, decided by the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs ('NZYQ'),1 overturned almost two decades of legal precedent established in the case of Al-Kateb v Godwin.2 Al-Kateb v Godwin had previously held that stateless people in Australia faced the prospect of being detained indefinitely in executive immigration detention. The decision in NZYQ marks a watershed moment in Australian jurisprudence imposing limits on the power of the executive and ending indefinite immigration detention.
This case note provides background to the Australian legal framework and policy of immigration detention. It situates this policy within the context of the central constitutional principle of the separation of powers and provides an overview of how the High Court has interpreted this principle as it applies to immigration detention. This case note then provides a summary of the facts, reasoning and decision in the case of NZYQ and touches on the implications for stateless people in Australia and the political ramifications of the decision.
II BACKGROUND
Since the early 1990s, Australia has had a policy of mandatory immigration detention and mandatory removal from Australia of 'unlawful non-citizens'. Under s 189(1) of the Migration Act 1958 (Cth) ('Migration Act' or 'the Act'), officers of the Department of Home Affairs have a duty to detain persons who are known or 'reasonably suspected' to be unlawful non-citizens. Unlawful non-citizens are defined as persons within Australia who are non-citizens (or 'aliens') and do not hold a valid visa to travel to, enter or remain in Australia.3 Section 196(1) of the Migration Act requires that a person 'must be kept in immigration detention until' they are either granted a visa or removed from Australia.4 Notably, s 198 requires an officer to remove an unlawful non-citizen from Australia as 'soon as reasonably practicable' after a final determination refusing to grant a visa is made.5 While this obligation arises irrespective of non-refoulement obligations, an officer is not authorised to remove a person to a specific country where it has been found that Australia's protection obligations have been enlivened because that person is a refugee.6