# NZYQ v Minister for Immigration

NZYQ v Minister for Immigration is a 2023 decision of the High Court of Australia. It is a landmark case in Australian constitutional law, concerning the separation of powers under the Australian Constitution. It was the first judgment of the Gageler court.
The decision is notable for having overturned Al-Kateb v Godwin, in which the Gleeson court held the Migration Act could be applied to authorise the indefinite detention of stateless persons.
The court ruled that when properly interpreted, the Migration Act was beyond the legislative power of the Commonwealth insofar as it applied to the plaintiff. This was because under Australia's constitutional system, penal or punitive detention may only occur where criminal guilt is being punished by the judiciary. The plaintiff's detention was presumed to be punitive, and the Commonwealth failed to argue that there was an alternative, non-punitive reason for his detention.
The Commonwealth attempted to argue that the plaintiff's detention was for purpose of his eventual deportation, a non-punitive purpose. However, because there was no real prospect of the plaintiff being removed from Australia in the reasonably foreseeable future, the court did not recognise this as an alternative, valid purpose justifying his detention.
The sections of the Migration Act, whilst invalid insofar as they applied to the plaintiff, remained valid when applied to authorise detention in other circumstances where justified by a non-punitive purpose. Judges explicitly noted post sentence detention is a justified purpose when it is for public protection under federal terrorist legislation or other state legislation.

## Background

The case concerned a stateless Rohingya man (anonymously referred to as 'NZYQ') born in Myanmar, who had arrived in Australia by boat in 2012. The person was subject to indefinite detention in Australia.
Indefinite detention in Australia was regarded as lawful in Australia under a limited set of circumstances due to the court's prior ruling in Al-Kateb v Godwin. NZYQ sued the Commonwealth and argued that the decision in Al-Kateb should be overturned.

## Judgement

The court unanimously overturned the 2004 decision in Al-Kateb v Godwin, a precedent that the Commonwealth sought to rely upon to support legislation enabling the indefinite detention of stateless persons in certain circumstances.
With Al-Kateb overturned, it followed that the legislation enabling the detention was constitutionally invalid as applied to NZYQ. Without supporting legislation, it followed that the Commonwealth did not have a lawful basis to continue detaining NZYQ, and the court demanded his release.

## Aftermath

The case resulted in the court effectively requiring the immediate release of 149 men from Australian immigration detention. Almost all of those released had criminal histories, the majority (116) being violent offenders, some being convicted murderers; they were said to be a danger to the community, creating political issues for the Albanese Government. The government responded by legislating a regime imposing strict visa conditions on the group of people released (including a requirement to wear electronic monitoring devices and to remain at a specified location between certain hours), with mandatory minimum prison sentences of one year for those breaching the conditions.
These additional measures, such as mandated ankle bracelets, were criticised by Sanmati Verma of the Human Rights Law Centre, noting that Australian offenders convicted of serious offences are already able to re-enter the community after their sentence. The curfew and monitoring conditions were subsequently declared invalid by the High Court in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs.

## Additional challenges

On 10 May 2024, the High Court decided ASF17 v Commonwealth of Australia. This decision upheld the detention of bisexual Iranian national ASF17, holding that individuals who have the medical capacity to consent to being removed from Australia, but choose not to, are not required to be released, noting that unlike NZYQ, the deportation of ASF17 was "reasonably capable of being achieved". ASF17 arrived in 2013 and his protection visa claim had been rejected. He has been detained continuously since 2014. He has never been charged or convicted with any offense in Australia, unlike most of the NZYQ cohort that were released. Also unlike the NZYQ cohort, ASF17 could have been deported to Iran if he had cooperated with the government by agreeing to meet with Iranian officials to obtain a travel document and consenting to his removal, as Iran does not admit returnees against their will. The government did not dispute he was bisexual and had previously had sex with men, nor that Iran has the death penalty for men who have sex with men. He said that he would accept being deported to any country that was not Iran and had repeatedly tried to get the government to do this, even saying "send me to Gaza", referencing the ongoing Israel–Hamas war, and that he faced "certain death" if deported to Iran. Iranian refugee AZC20, who intervened in the case, was released in 2021 by a judge due to his mental health deteriorating from his years spent in immigration detention. He may have been re-detained if he had not intervened in this case, as he also refused to cooperate with his removal. In his case, he had developed psychogenic mutism (mutism without any apparent physical cause) and could only communicate via writing. He had also attempted suicide multiple times, swallowing razor blades and overdosing on drugs. He had lost 25 kg (55 lb) whilst in detention. The judges ruled that, unlike AZC20 and other cases, ASF17 had never contended he did not have the capacity to consent. The Human Rights Law Centre, who represented AZC20, interpreted the judgement to mean "that for people like AZC20, who do not have the ability to consent to removal for medical, mental health or other reasons, a lack of cooperation will not justify indefinite detention". They also interpreted the judgement to mean that "for a person such as ASF17, a fear of harm is insufficient to preclude removal, irrespective of whether that claim might be genuine or well-founded".
On 6 November 2024, the High Court struck down the ankle bracelet and curfew conditions in a lawsuit brought by stateless Eritrean refugee YBFZ. The court said the conditions were "a form of extra-judicial collective punishment", and that for the conditions to be imposed on a person, it did not need to be proven that there was a "reasonably necessary" non-punitive purpose for them. The court said that the curfew was "neither trivial nor transient", persons being confined for one-third of each day, and the conspicuous ankle monitors would suggest to people that the person was "some kind of risk", which could degrade their autonomy. The government did not rule out further legislation in response to this decision.