The recent Australian High Court ruling in NZYQ v. Minister for Immigration, Citizenship and Multicultural Affairs has prompted significant developments in Australia’s immigration detention policies. This commentary examines the legal implications of the ruling, the subsequent legislative response, and the ongoing concerns raised by human rights and refugee advocates.

A History of Mandatory Detention for Unlawful Non-Citizens

People who arrive in Australia without a valid visa (known as “unlawful non-citizens”) are required by law to be detained. They are either held in “closed” or “held” detention facilities such as Immigration Detention Centers (IDCs), across Australia or Immigration Transit Accommodation (ITAs), Alternative Places of Detention (APODs), or the minister can grant them “community detention” in place of being held at a detention facility. Alternatively, the minister may grant them a ‘bridging visa,” which allows them to live in the community while their visa issues are being resolved.

An immigrant can be classed as “stateless” thus, an “unlawful non-citizen” under the Migration Act 1958 (Cth) if they arrive in Australia without a visa or have their visa taken away from them for reasons such as failing the character test, breaching visa conditions or presenting a risk to the safety, health or good order of the community. Often people fail the character test due to criminal convictions.

In 2004, the government’s ability to indefinitely detain refugees who had been deemed “stateless” was found to be constitutionally valid in the High Court case of Al-Kateb.

The result has been outrageously long stays in detention centers for stateless immigrants. On October 31, 2023, the average period of detention was 719 days. Immigration detention has primarily administrative purposes: to facilitate health, security, and identity checks and to enable visa processing or removal from Australia. But, reflected in these statistics, that is not what happens in practice.

For decades, human rights organizations such as Human Rights Watch have criticized the Australian government’s use of mandatory immigration policies as a deterrent for asylum seekers. This practice does not align with international standards such as those set out in The 1951 Convention and Protocol Relating to the Status of Refugees (“the convention”).

The Refugee Council of Australia (RCOA) has also called on Australia to do better by refugees in comparison to other countries’ immigration programs, stating, “Australia is the only country to impose mandatory indefinite detention for people who arrive without prior notice to seek asylum. If other countries can manage their immigration program without mandatory detention, so can we.”

The High Court’s New Test for Indefinite Immigration Detention

The High Court in NZYQ v. Minister for Immigration, Citizenship and Multicultural Affairs overruled the case of Al-Kateb, and in doing so it has created a new test for whether someone should be released from immigration detention.

The case was brought by a stateless Rohingya Muslim (“the plaintiff”), who arrived in Australia by boat in 2012. Initially, he was taken to an immigration detention center and was granted a bridging visa in 2014. In 2016, the plaintiff pleaded guilty to a sexual offence against a child and was sentenced to five years imprisonment. On his release from custody on parole in 2018, he was taken again into immigration detention under § 189(1) of the Migration Act.

He was kept in detention due to the minister for Immigration, Citizenship and Multicultural Affairs’ fears of prosecution if he were returned to his country of origin and reasonable grounds for considering him a danger to the Australian community. Thus, failing to satisfy the criteria for a protection visa, there was a mandate to keep him in immigration detention until he could either be removed from Australia or granted a visa. Until his release in November 2023, the plaintiff had been in immigration detention for almost seven years in total since he arrived in 2012.

The plaintiff’s release was the result of the court’s ruling that he must be released from indefinite detention if there were no reasonable prospects of his removal from detention. The court commented on the unlikelihood of his removal:

No country in the world has an established practice of offering resettlement to persons in Australia who have been convicted of sexual offences against children and the Department had never successfully removed from Australia any person convicted of a sexual offence against a child to a country other than a country which recognised the person as a citizen…

The notions of the practicability and the foreseeability of removal embedded in the expression of the constitutional limitation accommodate “the real world difficulties that attach to such removal.” The real world context also entails that proof of a real prospect must involve more than a demonstration of a mere un-foreclosed possibility.

The difficulty of his removal aligns with Australia’s obligations to the principle of non-refoulment under the convention, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom.

The case was concerned with sections 189(1) and 196(1) of the Migration Act 1958 (Cth). The sections are concerned with the duty imposed on an “officer” to detain an unlawful non-citizen and the duration of that detention. The court found that the sections did not validly apply to authorize the continuation of the plaintiff’s detention meant that “the solely statutory basis relied on by the defendants for the continuation of his detention fell away and the plaintiff was entitled to his common-law liberty.” Thus, overruling the case of Al-Kateb and creating a new test for the release of people from immigration detention if there is “no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future.”

However, the court made it clear that the order of habeas corpus granting the plaintiff’s release from detention doesn’t give him a right to remain in Australia: “[Release from unlawful detention is not to be equated with a grant of a right to remain in Australia. Unless the plaintiff is granted such a right under the Migration Act, the plaintiff remains vulnerable to removal under s 198.”

Overall, the judgement of the case can be summed up neatly with this statement from the High Court:

The Court held that §§ 189(1) and 196(1), as applied to the plaintiff, contravened Ch III of the Constitution because the plaintiff’s detention was not reasonably capable of being seen as necessary for a legitimate and non-punitive purpose in circumstances where there was no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future.

The plaintiff’s lived experience is a familiar one for many stateless people. To comply with the High Court ruling, the Australian government must release those in immigration detention who have no reasonable prospect of being removed from Australia. Since November, 149 stateless people have been released.

Concerns for Community Safety

The government began to raise concerns for community safety during the hearing. It warned that the majority of people who would have to be released had their visas cancelled due to serious criminal concerns. These concerns include convictions of assault and violent offending, kidnapping, attempted murder, and murder. As of October 31, 2023, there were 987 people in immigration detention facilities, of which 92.2% have a criminal history.

The opposition government expressed concerns for the Australian community’s safety and the likelihood of reoffending. Currently, the media has reported that 18 of the 149 released detainees have been re-arrested.

“Stronger Laws to Keep Australians Safe”

The Minister for Immigration, Citizenship and Multicultural Affairs, Andrew Giles, has assured the Australian community that it will be kept safe with the passing of the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023. Giles explained that the legislation enhances the existing layers of protection through:

1. Preventative detention
2. Community safety supervision orders
3. Electronic monitoring devices and curfews
4. Stringent visa conditions.

A community protection board has been established to make assessments and advise the Minister and Australian Border Force Commissioner on the management of released individuals. Its role includes consideration of whether a released refugee should be given a community safety detention. The board is required to find a high degree of probability that the refugee pose an unacceptable risk of committing a serious violent or sexual offence. If found, the minister can apply to the court to make the order for a community safety supervision order or preventative detention. This highlights the importance of the separation of powers in Australia, as the decision is not up to one branch of government but makes its way through the government and the courts.

Concerns and Criticisms

The strict conditions imposed on released detainees, including monitoring devices and curfews, have begun to be challenged in court, highlighting proportionality and procedural fairness issues. In December 2023, the Asylum Seeker Resource Centre led a somewhat successful case in the High Court challenging the legality of the newly introduced conditions on bridging visa type R holders. Similarly, a Chinese refugee who was placed in immigration detention in 2017 has now been released, and his lawyers are claiming that the conditions imposed by the new laws are “arbitrary” and “punitive.”

The RCOA also criticized the lack of independent oversight and the likelihood for these released detainees to remain on the “parole-like” visa conditions for many years or even the rest of their lives unless the minister decides to grant them another visa:

These strict visa conditions should only be used where it is deemed necessary, proportionate and appropriate, given all other options available to achieve the outcome. Under the current draft of the legislation, the decision to impose such visa conditions rests with an officer of the Department and is not subject to review. This could lead to the arbitrary use of visa conditions, and risks conditions being imposed where they are not justified or necessary.

On November 16, the RCOA wrote a letter to the minister of Home Affairs with concerns about the new protections, criticizing their efforts to further punish immigrants rather than facilitating their rehabilitation and reintegration into the community:

Rather than seeking to further punish people who have already served their jail sentences and have also been subject to a lengthy additional period in immigration detention, the Government should adopt policies to support people to reintegrate safely into the community and rebuild their lives. We should be encouraging people to become independent and constructive members of the community rather than imposing conditions that will make it harder for them to do so.

The Community Protection Board has the power to put released refugees back in immigration detention if they pose a threat to the community. This is a misuse of the administrative nature of immigration detention and results in an involuntary deprivation of liberty that ordinarily constitutes punishment, but, in this case, a crime has not been committed. Thus, creating a secondary punishment is contrary to the principles of proportionality and procedural fairness.

Refugee groups are urging the government to prioritize the reintegration and rehabilitation of refugees into the Australian community over preventative detention. This approach is more effective in reducing the likelihood of reoffending.

The Next Steps

The High Court ruling and subsequent legislative responses provide an opportunity for Australia to reevaluate its approach to immigration detention. Balancing community safety with human rights considerations is crucial, and collaboration with human rights organizations can help align the nation’s policies with international standards. As legal challenges unfold, it remains imperative for the government to ensure a fair, transparent, and rights-respecting immigration system that reflects its commitments under international law.

Hayley Watts is a fifth-year student at Newcastle Law School (AU).