Crimmigration Case
Here is a fantastic piece by our corporate sponsors LexisNexis®Practical Guidance about the case of a plaintiff a stateless Rohingya Muslim who arrived in Australia in 2012. He was taken into immigration detention on arrival and remained there until being granted a bridging visa in 2014. In 2016, the plaintiff pleaded guilty to a sexual offence against a child and was sentenced to imprisonment for five years with a non-parole period of three years and four months. After his release, he was taken into immigration detention under s 189(1) of the Migration Act.
The plaintiff applied for a protection visa, which was denied due to the existence of reasonable grounds for considering him a danger to the Australian community. This decision was affirmed by the Administrative Appeals Tribunal and the Federal Court of Australia dismissed an application for judicial review. The final determination engaged a duty of the Department of Home Affairs (the Department) to remove the plaintiff of Australia as soon as possible. The order was unable to be complied with as there was “no real prospect of him being provided with a right to enter or reside” in any country.
The plaintiff continued to reside in immigration detention following the order and he claims that his ongoing detention was not authorised by ss 189(1) and 196(1) of the Migration Act. At the time of hearing, the relevant precedent on lawful detention with no prospect of removal was that of Al-Kateb v Godwin (Al Kateb), for which leave was sought and granted to reopen. This matter held that such detention was lawful. Only the constitutional holding was reopened; the statutory construction holding was not granted leave to reopen.
The constitutional holding:
Twelve years before the holding in Al-Kateb, the following constitutional principle was established in Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (Lim):
[Sections 189(1) and 196(1)] will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered.The principle in Lim is difficult to reconcile with the reasoning of the majority in Al-Kateb, which reads that the sections have valid applications regardless of the length of detention. The High Court in this matter expressed that the Lim principle has been applied more consistently than Al-Kateb and noted that the “continuity and consistency” of the principles applied was of importance.
The court held that for ss 189(1) and 196(1) to validly authorise the plaintiff’s continued detention, the defendants were required “to prove that there existed a real prospect of his removal from Australia in the reasonably foreseeable future”. Six of the members of the court (except Edelman JJ) provided in their reasons that applying the Lim principle meant that the purposes of justifying executive detention would no longer apply.
As a consequence of ss 189(1) and 196(1) not validly applying to the plaintiff’s detention, orders were made for the plaintiff’s immediate release. The following was noted at [72] in relation to this release:
Release from unlawful detention is not to be equated with a grant of right to remain in Australia. Unless the plaintiff is granted such a right under the Migration Act, the plaintiff remains vulnerable to removal under s 198… grant of that relief [would not] prevent detention on some other applicable statutory basis, such as under a law providing for preventative detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody.
Takeaways:
Laws operating detention of a non-citizen are only constitutionally valid if necessary for a non-punitive purpose. Those who are subject to removal but whom have no real prospect of removal becoming practicable in the reasonably foreseeable future are covered by this judgment and the principle in Lim.
Read the full text of the court’s judgment here: NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; BC202317004.
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