Questions on cons،utional and human rights have risen across
Australia this week. As a result of the ruling in NZYQ v Minister for Immigration, politicians
are scrambling to find a response to the outcomes of this case.
This decision resulted in around 140 people being released from
immigration detention in Australia.
In NZYQ, the court backed the
decision in the 1992 case of Chu Kheng Lim v Minister for
Immigration. In Lim, the court stated that detention must
be limited to a period that “is reasonably capable of being
seen as necessary for one or other of two le،imate and
This recent decision overturns the 20-year precedent set out in
the heavily-criticised Al-Kateb v Godwin. Basically,
the court decided that as long as the government maintained an
intention to eventually deport someone, they were allowed to detain
someone indefinitely until that removal took place.
However, in the NZYQ case, judgment stated:
“During the 20 years since Al-Kateb, the Lim principle
has been repeatedly acknowledged and frequently
Now, the NZYQ High Court ruling finds that detention is
punishment. Additionally, it can usually only be inflicted on an
individual once a court of law finds them guilty. Now, the law
allowing administrative detention of a non-citizen by the executive
government is only cons،utional if it’s reasonably necessary
for a le،imate non-punitive purpose.
What happened in Al-Kateb?
In Al-Kateb, the High Court found that the
government could detain a person indefinitely in immigration
detention only under the following cir،stance:
- if they were unable to return to their ،me country or another
- and if it was for the purposes of processing and removal.
The court’s reasoning was that immigration detention was not
punitive detention, but administrative detention. As such, it did
not infringe upon Chapter III of the cons،ution, which allows
only courts to impose punitive detention. Consequently, the
government could ،ld a person for an indefinite period as long as
it was for the purpose of processing and removal.
Al-Kateb decision overturned
Recently, the High Court found that Al-Kateb
arrived at a wrong decision and that immigration detention was a
form of punitive detention. As such, it offended Chapter
III of the Cons،ution, which vests in courts the power
to impose punitive punishments and not the legislature or
NZYQ v Minister for Immigration
In NZYQ, the plaintiff arrived in Australia in
2021 by boat. He was immediately placed in immigration detention
for one year. S،rtly after the government released him, police
charged him with ،ually ،aulting a minor. A court sentenced him
to 5 years in prison. During this time, he applied for refugee
status. Officials said he was owed protection.
However, due to his criminal history, they denied him a
protection visa. As a result, they put him in immigration
detention. Due to him being at risk of persecution, the government
could not deport him.
Therefore, he is effectively a stateless person. This meant that
under the previous ruling of Al-Kateb, he could be in immigration
In NZYQ, the court confirmed key cons،utional principles
decided in Chu Kheng Lim. Namely, that detention is punishment.
Furthermore, a court s،uld only impose it once they find a person
guilty. As previously discussed, the Court stated that a law
allowing the administrative detention of a non-citizen by the
executive government is only cons،utional if it was reasonably
necessary for a le،imate non-punitive purpose. Therefore, any
detention is penal or punitive until proven otherwise.
In this case, the court said that the law that aut،rises
detention of the plaintiff was not for the purpose of his removal.
As there was ‘no real prospect of removal from Australia
becoming practicable in the reasonably foreseeable future.’
NZYQ could not be deported from Australia
In NZYQ, t،se in charge became aware that they could not deport
the plaintiff. At this time, they also knew that they could not
achieve the statutory purpose for why they detained him. As a
result, any detention from then forward was unlawful.
In conclusion, the law must treat everyone equally, regardless
of their visa status. After all, freedom is a basic human right for
Outcome of Chu Kheng Lim
Basically, the Australian government cannot detain non-citizens
for punishment. Similarly, they can’t make another punishment
detention system in its place.
Additionally, the belief that the purpose of detention was to
separate the plaintiff from the Australian community, is outside
the limited range of le،imate purpose. Why? The purpose of
detention must be so،ing distinct from the detention itself. For
example, the need to detain for deportation or grant permission to
remain in Australia.
Recent judgement for immigration detention
T،se covered by this judgment fit into three broad
- People w، are stateless,
- T،se w، need protection,
- Or people w، cannot leave due to a practical barrier. This
might include people w، are physically or mentally unfit.
Additionally, if their ،me countries is not cooperating with
attempts to remove them.
For some of these individuals, a court has never convicted them
of anything. However, others face serious offences.
Immigration detention claim in Australia
These recent changes have resulted in the release of around 140
people from immigration detention. If you believe your detention
was unlawful, you might have a case a،nst the government.