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Key decisions

  • NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
  • Karpik v Carnival plc [2023] HCA 39


Judicial power of the Commonwealth – indefinite detention

In the much publicised, landmark High Court decision of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (28 November 2023), the High Court was required to determine the lawfulness of indefinite detention under ss 189(1) and 196(1) of the Migration Act 1958 (Cth) (‘Migration Act’).

Section 189(1) of the Migration Act imposes an obligation on an officer (as defined in the Act) to detain a person who the officer knows, or reasonably expects, is an ‘unlawful non-citizen’. Section 196(1) of the Migration Act provides that an unlawful non-citizen is to be kept in immigration detention until, among other things, that person is granted a visa or removed from Australia under s 198 of the Migration Act. An officer must remove an unlawful non-citizen ‘as soon as reasonably practicable’ when an application for a visa has been rejected or when the unlawful non-citizen asks to be removed (ss 198(6) and 198(1) of the Migration Act respectively).

The plaintiff is a Rohingya Muslim born in Myanmar. The plaintiff was taken into immigration detention in 2012 after arriving in Australia by boat. In 2016, the plaintiff pleaded guilty to a sexual offence against a child and was sentenced to a term of imprisonment. After he served his sentence, the plaintiff was returned to immigration detention. While still in criminal custody, the plaintiff applied for a protection visa. In 2020, a delegate of the Minister found the plaintiff was a refugee but there were reasonable grounds to consider the plaintiff a danger to the Australian community. The delegate refused the plaintiff’s request.

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