On 2 April 2025, the High Court handed down judgment in CZA19 v Commonwealth of Australia; DBD24 v Minister for Immigration and Multicultural Affairs [2025] HCA 8. The High Court found that the detention of an unlawful non-citizen does not exceed the constitutional limit established in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 during processing of their Protection Visas, even if their removal from Australia was not practicable in the reasonably foreseeable future.
Key information
Background
By operation of the separation of powers in Australia under the Constitution, the detention of a person and the deprivation of their liberty is ordinarily a function bestowed on the Courts, as there is a presumption that such detention is imposed as punishment. Punitive detention cannot be imposed by the Executive. However, there are limited exceptions that have been recognised by the Courts, such as when a person might be detained for defence related purposes at a time of war (see, for instance, Little v The Commonwealth (1947) 75 CLR 94) or for the detention of persons accused of crimes and awaiting trial.
In the migration context, it is well established under the ‘Lim principle’ (Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64) that two legitimate and non-punitive purposes that could allow for detention by the Executive are 1) removal from Australia; or 2) enabling a visa application to be considered. The duration of such Executive detention is limited to a period that is reasonably capable of being seen as necessary for either of these two purposes.
A person who has applied for a Protection Visa and is recognised to be owed protection obligations in respect of their home country cannot be removed to that country due to operation of s 197C of the Migration Act 1958 (Cth). For such persons, there is no real prospect of their removal from Australia to that country becoming practicable in the reasonably foreseeable future.
NZYQ
On 28 November 2023, the High Court of Australia handed down a landmark unanimous decision in NZYQ, overturing the 20-year precedent in Al-Kateb v Godwin [2004] HCA 37. In NZYQ, the High Court found that because there was no real prospect of the Plaintiff NZYQ’s removal from Australia becoming practicable in the reasonably foreseeable future, his detention was not reasonably capable of being seen as necessary for a legitimate and non-punitive purpose of removal. His continued detention by the Executive was, therefore, no longer constitutionally permissible.
CZA19/DBD24
CZA19 and DBD24 each had protection findings made in their favour. They argued before the High Court that once those protection findings were made, the outcome of their unfinalised Protection Visa applications were irrelevant once there was no real prospect of their removal from Australia becoming practicable in the reasonably foreseeable future, such that their detention was no longer constitutionally permissible.
They argued that the separate purposes of detention under the Migration Act (being removal from Australia and enabling a visa application to be considered) formed part of a single ultimate purpose of facilitating removal of an alien from Australia if their visa were not granted.
The High Court rejected this argument, finding that each of the purposes were in and of themselves legitimate and non-punitive purposes. Therefore, the purpose of CZA19 and DBD24’s continued detention after the protection findings were made were for the legitimate non-punitive purpose of processing their Protection Visa applications.
Implications
The implications of the recent decisions on detention are largely limited to the migration context and the operation of provisions under the Migration Act. However, the case demonstrates the High Court’s concern to maintain the traditional limitations on the exercise of Executive power.
The decision in this particular matter provides clarity that detention by the Executive remains constitutionally valid if is reasonably capable of being seen as necessary for a legitimate non-punitive purpose (of either removal from Australia, or separately, considering an unfinalised visa application). It was irrelevant that CZA19 and DBD24 would have eventually been released from immigration detention regardless of the outcome of their Protection Visa applications.
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This article was written by Will Sharpe, Partner and Matthew Wong, Senior Associate.
