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  • A recent High Court decision found that indefinite detention is unlawful and overturned the Al-Kateb v Godwin precedent.
  • The decision highlights the importance of aligning Australian immigration laws with human rights and constitutional principles, especially for non-citizens and stateless individuals.
  • It also sets an important legal precedent that will impact judicial review and the exercise of Executive power. The decision may also influence international immigration policies and practices.

The recent decision in NZYQ v Minister for Immigration Citizenship and Multicultural Affairs & Anor (‘NZYQ’) marks a pivotal moment in Australian jurisprudence. This landmark case, heard by the High Court of Australia in 2023, has profound implications for immigration law, human rights and the application of judicial power under the Australian Constitution.

The facts

The plaintiff, NZYQ, is a stateless Rohingya Muslim who arrived in Australia by boat in 2012. After a criminal conviction, his visa was cancelled and he was detained under the Migration Act 1958 (Cth) (the ‘Migration Act’). Despite being recognised as a refugee with a well-founded fear of persecution in Myanmar, his application for a protection visa was refused due to his criminal conviction, rendering him unable to be removed from Australia.

The High Court faced several critical questions regarding the interpretation of the Migration Act and its alignment with constitutional principles. The Court was tasked with deciding whether the indefinite detention of NZYQ, without a real prospect of removal, was lawful.

The High Court’s findings

The Court found the indefinite detention of NZYQ, in circumstances where his removal from Australia was not practicable, unlawful.

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