The Shadows of the Stateless
Map of Australia (1909). Note that NZYQ is not present in this image.
As of August 2023, there were 1056 individuals in indefinite detention, with the average detainment period being 708 days. [1] 124 of these individuals were detained for five years. [2] The landmark ruling in NZYQ v. Minister for Immigration, Citizenship and Multicultural Affairs & Anor (‘NZYQ’) illuminated Australia's unconstitutional indefinite detention system. [3] The NZYQ ruling can provide Australia with an opportunity to assist detainees whilst navigating the spectrum of shadows of Australia's migration legislation.
Who is NZYQ?
The case of NZYQ involved a Rohingya man who arrived by boat in 2012 and was granted a temporary Australian visa in 2014. [4] In 2015, NZYQ was convicted of child sex offences. After serving his sentence, and the subsequent cancellation of his visa, NZYQ was placed into indefinite detention. [5] He argued that his detention was unconstitutional as involuntary detention is meant to serve as a judicial function, not as a form of punishment. [6] The Court referred to precedent cases Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) (‘Lim’) and Al-Kateb v Godwin (2004) (‘Al-Kateb’). [7]
The Lim case involved Cambodian nationals who entered Australia without valid entry permits. [8] The Court concluded that detention is a form of punishment and should only be inflicted on a person by a Court if they are found guilty of a crime. [9] Similarly, the case of Al-Kateb involved a stateless Palestinian who arrived in Australia without a visa and was placed in indefinite detention. [10] Al-Kateb wished to be removed from Australia, however, his many applications were denied. This matter was appealed to the High Court where the ambiguity of sections 189(1) and 196 of the Migration Act 1958 (Cth) was explored. [11] The High Court held that these sections allowed for the continued mandatory detention and removal of unlawful non-citizens, thus maintaining Mr Al-Kateb detention status. [12]
The recent High Court decision in the NZYQ case, overturned the 20-year-old precedent established in Al-Kateb, and partially agreed with the decision in Lim. [13] The Court ruled that where there is no real prospect of the removal of the detainee for the foreseeable future, indefinite immigration is unlawful and unconstitutional. [14] Moreover, the High Court findings confirmed that immigration detainment must be for a non-punitive purpose and predominantly used to protect the Australian community from high-risk individuals. [15] If a person has committed a crime and served their sentence, they cannot be further punished through indefinite detention. Due to this, the Court stated that NZYQ cannot be lawfully re-detained unless the prospect of deportation becomes real. [16] He was granted a visa and is entitled to substantial monetary compensation which is set to occur in the next few months. NZYQ access to compensation will thus allow other detainees who have experienced indefinite detention to claim damages.
Impact on Detainees and Communities
The impact of the NZYQ decision has permitted for the immediate release of around 140 detainees and has allowed for the potential release of 340 other detainees. [17] A significant proportion of these eligible detainees have had their visas cancelled on character grounds, including having previous convictions or being considered dangerous to the community. [18] However, many of these detainees were detained as they were on a removal pathway or had no real prospect of being removed in the foreseeable future. Since being released, four detainees have re-offended, causing widespread negative media coverage which continues to create negative stereotypes of immigrants.
All detainees who have been released are facing stringent visa conditions which were recently created under the Migration Amendment (Bridging Visa Conditions) Bill 2023. [19] Despite these measures, the creation of new visa sub-categories and preventative detention measures may be perceived as breaching Australia's international human rights obligations. [20] The visa prevents ex-detainees’ from moving and establishes significant criminal offences in the event of visa noncompliance. If ex-detainees do not comply with their visa monitoring conditions, they will face a mandatory one-year imprisonment for their offences. Balancing the community and detainees’ human rights will be difficult, however, can be achieved through consistent reviews of their detention statuses every 12 months. If a detainee’s behaviour is considered to be of a high risk to society, then they could potentially have their detention status extended indefinitely. [21] However, what makes these ex-convicted detainees dissimilar from convicted Australian citizens and residents is their inability to reintegrate into society. Non-citizens, or stateless individuals who have been convicted, enter indefinite detention upon the completion of their sentence. [22]
Where to Now?
The High Court decision of NZYQ has been embraced by human rights advocates for aligning Australia's immigration laws with international human rights obligations and principles. [23] Article 14 of the Universal Declaration of Human Rights asserts that ‘everyone has the right to seek and enjoy in other countries asylum from persecution’, and for people who have been subjected to years of inhumane treatment, the NZYQ case can provide a pathway to freedom. [24] The High Court ruling states that detention cannot be used for a punitive purpose and this will protect the many people who have had negative detention experiences. [25] Furthermore, the NZYQ decision may allow stateless individuals to receive some certainty as there are no current stateless visa categories or pathways to permanent residency in Australia. [26] The impact of being stateless affects a person’s right to education, work, and deprives a person of their sense of identity.
The NZYQ case marks a critical moment in Australia's immigration history, prompting a re-evaluation of detention practices to balance humanitarian and national interests. [27] It is imperative that Australia moves towards a detention system that values human rights and ensures the safety and fairness for detainees. All detainees impacted due to the NZYQ decision will have to navigate the spectrum of shadows of Australia's migration legislation.
[1] Refugee Council of Australia, ‘Statistics on people in detention in Australia’ (Web Page, 21 October 2023) <https://www.refugeecouncil.org.au/detention-australia-statistics/>
[2] Australian Human Rights Commission, ‘Commission Commends High Court Ruling on Indefinite Immigration Detention’, (Web Page, November 2023) <https://humanrights.gov.au/about/news/media-releases/commission-commends-high-court-ruling-indefinite-immigration-detention>.
[3] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37.
[4] Ibid 1.
[5] Ibid 2.
[6] Ibid 28.
[7] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; Al-Kateb v Godwin (2004) 219 CLR 562.
[8] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 2; Al-Kateb v Godwin (2004) 219 CLR 562.
[9] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37, 36.
[10] Al-Kateb v Godwin (2004) 219 CLR 562, 79.
[11] Migration Act 1958 (Cth) ss 189(1), 196.
[12] Al-Kateb v Godwin (2004) 219 CLR 562, 33.
[13] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; Al-Kateb v Godwin (2004) 219 CLR 562.
[14] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37.
[15] Ibid 54.
[16] Ibid 9.
[17] Laura John, Josephine Langbien and Sanmati Verma, ‘Liberty, Punishment and the Power to Detain: The Fallout from NZYQ v Minister for Immigration Citizenship and Multicultural Affairs’, (Web Page, 6 December 2023) <https://www.auspublaw.org/blog/2023/12/liberty-punishment-and-the-power-to-detain-the-fallout-from-nzyq-v-minister-for-immigration-citizenship-and-multicultural-affairs>.
[18] Migration Amendment (Bridging Visa Conditions) Bill 2023 (Cth), p30.
[19] Ibid.
[20] Jock Gardiner, Silvia Lodos ‘High Court of Australia Rules Indefinite Detention to be Unconstitutional – Why Europe Should Pay Attention’, (Web Page, 13 December 2023) < https://www.diritticomparati.it/high-court-of-australia-rules-indefinite-detention-to-be-unconstitutional-why-europe-should-pay-attention/>;
Kristen Connell ‘Liberty, Equality and Proportionality Must Not be Overlooked in Response to High Court Decision’, (Web Page, 16 November 2023) <https://lawcouncil.au/media/media-releases/liberty--equality-and-proportionality-must-not-be-overlooked-in-response-to-high-court-decision>.
[21] Michelle Peterie, ‘The Government’s Preventative Detention Legislation, Explained’, (Web Page, 11 December 2023) <https://www.sydney.edu.au/news-opinion/news/2023/12/11/the-government-s-preventative-detention-legislation--explained.html>.
[22] Sanmati Verma, ‘Released detainees have done their time. Let them be’, (Web Page, 16 November 2023) <https://www.hrlc.org.au/reports-news-commentary/released-detainees-have-done-their-time-let-them-be>.
[23] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 3, 7, 58.
[24] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948), 14.
[25] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37, 39.
[26] The University of Melbourne ‘What happens to stateless people in Australia after the High Court ruling?’, <https://law.unimelb.edu.au/__data/assets/pdf_file/0006/4818858/Stateless-people-in-Australia-after-the-High-Court-ruling_Dec-2023.pdf>.
[27] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 3.
This article was originally published under the title ‘A Spectrum of Shadows: Australian Immigration Laws and their Impact on the Stateless’ in The Brief Edition 1, 2024 — Through a Glass, Darkly.