Australia’s constitution allows the government to detain non-citizens while their protection visa applications are processed, even if they will be released after a decision either way.
That is what the commonwealth will argue in two challenges before the high court on Thursday, urging it to reject the cases that seek to extend the landmark NZYQ decision on indefinite detention to a new cohort of people in immigration detention.
In November 2023 the high court ruled that immigration detention is unlawful where there is “no real prospect of [the non-citizen’s] removal from Australia becoming practicable in the reasonably foreseeable future”. That decision has resulted in the release of 224 detainees from incarceration.
Now two non-citizens want the decision extended to people who cannot be removed from Australia but remain in detention while their protection visa applications are processed.
They argue detention in that situation is unlawful because either outcome – the granting or refusal of a visa – will result in release, due to the visa grant or because of the constitutional limit in NZYQ.
The first applicant, known by the pseudonym CZA19, is a Polish citizen whose tourist visa was cancelled in August 2010 after he was charged with commercial importation of drugs. In September 2011 he was sentenced to a period of 10 years and 8 months’ imprisonment.
According to court documents, CZA19 was then in police custody except for the period April 2016 to December 2017 when he was “at large after escaping from prison”. His criminal justice stay visa concluded in December 2018 when he was released from prison on parole, and he went into immigration detention.
CZA19 applied for a protection visa in January 2019. It was refused. He appealed to a tribunal, who ordered the decision be remade. He remained detained for 16 months, then began federal court proceedings to force a new decision in March 2024.
In May 2024 he was released on a bridging visa, but he sought a declaration his past detention was unlawful.
The second applicant, DBD24, is a Vietnamese citizen who came to Australia by boat in April 2013. He was granted permission to reside in community detention, but he “absconded” and was “at large” for eight years, the commonwealth submission revealed.
DBD24 applied for a safe haven enterprise visa in November 2021, but it was refused in February 2022. He was sentenced to three years’ imprisonment for supply of commercial quantities of drugs, suspended after two years, and went into immigration detention in June 2023 after his release.
In December 2023 the tribunal ordered his visa application be reconsidered. On 1 October 2024, DBD24 was granted his protection visa and released from detention.
Lawyers for the applicants argue that “the executive detention of an alien who has made a visa application is punitive … if it is inevitable [they] will be released on the final determination of their visa application”.
Such detention “functions as a form of punitive limbo, detaining them solely for the illegitimate purpose of segregation and doing so futilely because they must inevitably be released into the Australian community on the making of a visa decision, whatever that decision is”, they said.
The commonweath argues that the Migration Act requires non-citizens be detained “for the constitutionally permissible purpose of enabling visa applications to be investigated, considered, and determined”.
The NZYQ ruling on the limit on indefinite detention for the separate purpose of removing non-citizens has no bearing on the legality of detention for the “admission purpose”, it says.
Earlier in November the high court struck down a law imposing ankle bracelets and curfews on people released from detention, resulting in the government remaking regulations.
Another potential high court defeat could be embarrassing for the government, but would probably trigger only a handful of new releases, as advocates report dozens of people with protection findings have already been released from detention.
On Monday 4 November the general counsel of the home affairs department, Clare Sharp, told Senate estimates that 13 applicants had a “similar claim” to CZA19 and DBD24 but “those matters have been resolved as their visa processes have been finalised”.
“They would have been resolved by the person either being granted a protection visa or being found not to be removable and being released from immigration detention as NYZQ affected,” she said.
