NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37
High Court of Australia
Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot & Beech-Jones JJ
Constitutional law – plaintiff refused protection visa following criminal convictions – s189(1) and s196(1) of the Migration Act 1958 (Cth) required his detention until removal from Australia – he was stateless, with no real prospect of removal in the reasonably foreseeable future – orders earlier made by Court – reasons now given – Lim v Minister (1992) 176 CLR 1 established that laws requiring detention of unlawful non-citizens are valid if limited to what is reasonably capable of being seen as necessary for the purposes of deportation or to enable an application for a visa to be made and considered – in Al-Kateb v Godwin (2004) 219 CLR 562, the High Court upheld s189(1) and s196(1) as applied to a person in the position of the plaintiff – plaintiff given leave to re-open the constitutional holding in Al-Kateb – consistency with Lim requires detention be limited to what is reasonably capable of being seen to be necessary for a purpose which is reasonably capable of being achieved – Lim requires the purpose of detention to be something distinct from detention itself – s189(1) and s196(1) are beyond the legislative power of the Commonwealth in their application to the plaintiff – plaintiff’s detention unlawful.
NZYQ