The end of indefinite immigration detention:

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs

Lisa van Toor and Mary Anne Kenny

December 2023

On 8 November 2023 the High Court of Australia made landmark orders in the case of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (‘NZYQ’) concerning the indefinite detention of the plaintiff, a stateless Rohingya man. The ruling determined that the ongoing detention of the plaintiff was unlawful and ordered his immediate release from detention.

The Court’s decision led to a cascading release of people from immigration detention, with the Australian Border Force confirming that 141 people had been released by 27 November 2023.

The High Court published its decision on 28 November 2023. It was revealed that the decision was unanimous amongst all seven judges. The Court held that as there was no real prospect of the removal of the plaintiff from Australia becoming reasonably practicable in the reasonably foreseeable future, the plaintiff’s continued detention was unlawful. This decision overruled a longstanding precedent established the Court’s 2004 decision of Al-Kateb.

Purpose of detention

The court’s decision in NZYQ affirmed that the purpose of immigration detention is administrative in nature and must be for a legitimate and non-punitive reason. This generally means that people are held in immigration detention if they are being subject to an administrative process for removal or deportation, or in circumstances where there are issues such as identity that need to be resolved.

Current statistics on immigration detention shows approximately 51% of people are detained for less than a year, with 18.5% of them being detained for 91 days or less. For that group, immigration detention can be seen to serve a legitimate purpose. However, subjecting people to prolonged or indefinite periods of detention, where there is no real prospect for their removal means that this legitimate purpose is unsettled.

Nature of detention

The indefinite nature of people’s detention in Australia is due to a variety of factors. In most cases, the individual would have been found to be stateless or owed protection by the Australian government and usually because of that determination, could not be removed from Australia. The NZYQ decision determined that there was a temporal limit to detention, namely that if there was no reasonable prospect of removal, it went beyond the powers of the Commonwealth to detain them administratively.

The Department of Home Affairs statistics on detention for the period up to 30 September 2023 indicate that there were a total of 981 people in immigration detention centres across Australia, with 643 (65.5%) of them detained as a result of a mandatory section 501 visa cancellation, that is where a person has been found to have ‘character’ issues, usually of a criminal nature.

Applicants for a visa, or existing visa holders, are required to pass the Minister’s “character test”. A person does not pass the character test if they have a “substantial criminal record”, which includes having been sentenced to a term of imprisonment of 12 months of more.  If a person is serving a prison sentence, the Minister must mandatorily cancel or refuse to grant the visa. Section 501 of the Migration Act also provides for a discretion to the Minister to refuse to grant a visa, or cancel an existing visa, on the basis that an individual poses a danger to the Australian community or to the national security of Australia.

While anyone’s visa can be cancelled under section 501, the issue of indefinite detention relates primarily to people from an asylum seeker or refugee background. This is due to the Australian government’s inability to return them to their country of origin under the principle of non-refoulement in international law.

Currently, the average length of time spent in detention is 707 days, with 175 people having been in detention for 2-4 years and 112 people having been in detention for 5 years or more. The length of time spent in detention has increased significantly since 2017, increasing from 493 days in the period of 2017-2023.

Post detention issues

The Australian Border force has ‘hardened’ the immigration detention environment on the basis that facilities were managing a population that has detainees whose visas have been cancelled on a character grounds, due to criminal convictions. 

There is a substantial body of evidence of the negative mental health effects of long term detention, particularly for those who have a refugee or asylum seeking background like the cohort impacted by the NZYQ decision. There are also reports that drugs and violence are prevalent in the IDC population.

Immigration detention centres as a result resemble prisons, however, since people are being administratively detained, there is no focus on rehabilitation while people are detained. Furthermore the government has not adequately considered the issue of post-release transitional support for people leaving detention. Those released from detention face a range of challenges, encompassing social, health, mental health, economic, education, and disability-related aspects.

Rather than focusing on the risk management through community support and reintegration strategies, the government opted for legislative measures, imposing stringent conditions on released individuals.  These conditions include the wearing of ankle monitoring bracelets and adherence to strict curfews, among other requirements. Without adequate supports these individuals will struggle to cope and are at risk of re-offending.

Reform needed

Although the High Court's decision to impose certain constraints on the duration and purpose of detention is encouraging, the government must still confront the mandatory nature of detention. The initial assessment of whether an unlawful non-citizen should be detained lacks a dependable and enforceable review mechanism to ascertain the reasonableness or necessity of the detention. Moreover, there is no provision for evaluating the ongoing necessity of detention.

We believe this aim is not contentious.  For more than a decade successive Australian Governments have asserted, and continue to assert, that immigration detention is in fact only applied when necessary or reasonable for reasons such as ascertaining people’s identities and community protection. 

Lisa van Toor is a lecturer in the Law School teaching in a range of units with a focus on social justice, human rights and legal research. She is also a clinical supervisor and pro bono solicitor in the Human Rights Law Clinic, where she provides legal advice and assistance to refugees and asylum seekers as a legal practitioner.

Associate Professor Mary Anne Kenny teaches and researches in the area of human rights, refugee, and immigration law. She is a legal practitioner and works closely with refugee non-government organisations and refugee communities. Her research interests lie in the intersection of refugee status determination and issues related to mental health.