Ruchira Abeyratna
Does the government have the power to indefinitely detain refugees? The High Court of Australia answered with a resounding ‘no’ in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005 (‘NZYQ’). Principally, NZYQ demonstrates the importance of the Australian Constitution and the High Court in upholding the limits on executive power. NZYQ also provides an important glimpse into the racialised inequality the Migration Act seeks to uphold. Dismantling colonial constructions of the ‘unlawful non-citizen’ is critical to responding to this inequality
Why did NZYQ come to court?
NZYQ (the plaintiff) was born in Myanmar and fled to Australia by boat in 2012. As he entered Australia without a visa or citizenship, he was deemed an unlawful non-citizen per section 14 of the Migration Act 1958 (Cth) (‘Migration Act’). Since section 189(1) effectively requires the detention of unlawful non-citizens, NZYQ was held in immigration detention. In 2014, NZYQ was granted a bridging (temporary) visa. In 2016, NZYQ pleaded guilty to, and was subsequently imprisoned for, a sexual offence against a child. Once NZYQ was released on parole, he was taken back to immigration detention. Section 196(1) prescribes that an unlawful non-citizen must remain detained unless certain circumstances arise. These include the grant of a visa or removal from Australia. Regarding removal, section 198 imposes a duty on the government to remove unlawful non-citizens from Australia “as soon as reasonably practicable” in prescribed circumstances. These include situations where the detained individual has asked the Minister in writing to be removed, or when their application for a visa has been rejected upon final determination.
NZYQ unsuccessfully attempted to use both the visa and removal routes to cease his detention. NZYQ applied for a protection visa because he feared persecution if he was returned to Myanmar. Although this fear of persecution was deemed to be well-founded, and his circumstances engaged Australia’s protection obligations, the visa was denied. This was because the nature of NZYQ’s offences was deemed to constitute a reasonable danger to the Australian community. After exhausting appeal avenues regarding his visa, NZYQ then wrote to the Minister requesting removal from Australia. This ordinarily would have engaged the section 198 duty to remove NZYQ as soon as practically possible. However, given the nature of the crimes NZYQ committed, no country would accept him. If he was returned to his home country, there was the prospect of persecution. Thus, there was essentially nowhere for NZYQ to go. While in detention, NZYQ (with the help of legal counsel) applied to the High Court of Australia to challenge the legality of his detention. Their argument was twofold:
Argument 1 (Statutory Authority): correctly construed, sections 189(1) and 196 of the Migration Act did not authorise indefinite detention.
Argument 2 (Constitutional Validity): it was beyond the legislative power of the government to impose indefinite detention on unlawful non-citizens with no proximal practical possibility of being removed.
The High Court’s view on indefinite immigration detention before NZYQ
Before NZYQ, the authoritative precedent regarding the detention of unlawful non-citizens with no real prospects of removal in the (reasonably) foreseeable future was established by Al-Kateb. This judgment covered the same statutory authority and constitutional validity arguments posed in NZYQ. Regarding statutory authority, the majority in Al-Kateb held that a correct reading of the relevant sections of the Migration Act both permitted and required the ongoing detention of unlawful non-citizens with no real prospects of removal. To reach this conclusion, the majority examined section 196(1) of the Migration Act, which states that “[a]n unlawful non-citizen detained under section 189 must be kept in immigration detention until …”. The use of the word ‘must’ meant that detention was not discretionary, but legislatively required until the circumstances prescribed in the subsections arose.
Regarding constitutional validity, the court in Al-Kateb first examined whether the relevant sections of the Migration Act were within the Federal Parliament’s law-making power. The Federal Parliament’s law-making powers are restricted to those listed in sections 51 and 52 of the Australian Constitution. McHugh J in Al-Kateb at [39] noted that legislation regarding the detention of aliens fell directly under the ‘naturalisation and aliens’ power in section 51 (xix) of the Australian Constitution. Not only must the Federal Parliament legislate within enumerated powers, but it must also abide by the several implied and express principles enshrined within the Constitution. The relevant principle for this case is the constitutional limitation on punishment. Chapter III of the Constitution vests the power to issue punishment exclusively in the courts. To determine whether ongoing immigration detention abided by this constitutional limitation, the High Court in Al-Kateb looked to its landmark decision in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (‘Lim’). Lim clarified the constitutional validity of immigration detention through a tri-partite proposition:
Lim proposition 1: The involuntary detention of a person by the state is, on its face, punitive. Australia’s constitution requires that punitive detention can only be issued by courts.
Lim proposition 2: However, the issue of unlawful non-citizens entering a sovereign country may create the need for the executive to detain such entrants while their entry application is processed or while they are being prepared for deportation.
Lim proposition 3: Thus, immigration detention issued by a non-judicial body will be punitive (and hence unconstitutional) unless the government can prove that it is for the legitimate purpose of entry or removal.
In response to the Lim propositions, the majority in Al-Kateb held that the continued detention of unlawful non-citizens was to prepare them for removal, if and when that was to arise. This was held to be the case even for those with no real prospects of removal in the reasonably foreseeable future. Several judges also made the point that immigration detention also serves to separate unlawful non-citizens from the Australian community, and that this separation was non-punitive. As will be explained in the next section, in NZYQ both assertions were held to be incorrect applications of the Lim propositions. This led to the Al-Kateb precedent’s demise.
What did the High Court decide in NZYQ?
While the High Court in NZYQ affirmed the statutory authority of indefinite detention, it took a different route to Al-Kateb in determining constitutional validity. It held that in the case of unlawful non-citizens with no real prospects of removal, it cannot be said that keeping them in detention is to prepare them for removal per Lim proposition 3. For that reason, the ongoing detention of NZYQ was unconstitutional, and orders were made for the immediate release of the plaintiff. The decision in NZYQ also had far-reaching consequences: refugees cannot be indefinitely detained simply because removal is not possible. This explains why the Federal Government swiftly released 141 people from immigration detention following NZYQ.
The Australian Constitution: A safeguard against government overreach
NZYQ showcases how a rigid Constitution, and an independent judiciary adequately empowered to enforce it, is a critical safeguard against overreaches of governmental power. The Australian Constitution is a supreme document as it trumps any legislation that attempts to subvert or evade its principles. It is also a rigid document because changes to the Constitution require a national referendum. As the defeated Voice referendum illustrated, this makes it very difficult for the Constitution to be changed. The supremacy and rigidity of the Australian Constitution work together to protect the principles enshrined from being swept away on legislative and political whims. In NZYQ, the principle at play was the limitations on punishment. However, safeguards are futile unless adequately and independently enforced. This is where the High Court comes in as the guardian of the Australian Constitution. The High Court’s powers to strike down laws that are deemed unconstitutional is one way the limits on parliament’s power can be enforced, even when powerful political actors/discourses try to extend their power. This is salient in the post-9/11 political landscape, where governments have sought to increase their power in the name of national security.
Duplicated punishment and a racialised eclipse of due process
NZYQ was essentially punished twice: a prison term for his sexual abuse followed by immigration detention. This article does not seek to undermine the severity of the plaintiff’s offences. Rather, it aims to challenge the racial inequality undergirding NZYQ’s circumstances, whereby Black/brown people are more vulnerable to the loss of liberties. As the law stands, citizens can only be punished through criminal sanctions, which can only be imposed if the citizen’s guilt can be proven beyond reasonable doubt. Conversely, visa holders are vulnerable to visa cancellation, deportation and detention in a wider range of circumstances. This is because the Migration Act empowers the relevant Minister to cancel visas if they believe the offender fails the ‘character test’. The character test in s 501(6) of the Migration Act can be failed for a variety of reasons, including the mere association with groups involved in criminal activity. Unlawful non-citizens are the priviest to punishment, as s 189(1) allows detention upon arrival. The alarming element of the inequality spectrum between citizens, visa holders and unlawful non-citizens is the level of support it receives from the Australian public. Scratching at the surface, one might argue that it is normal for citizens to enjoy privileges that non-citizens do not. This surface-level conclusion overlooks the fact that most migrants to Australia are people of colour. Many scholars have noted how post-9/11 political discourse has resulted in foreign bodies associated with and equated to criminality, danger, and distrust. These ‘sticky associations’ allow Australians to justify non-citizens, particularly Black/brown ones, facing different standards and additional punishment compared to citizens. Combined with societal apathy towards offenders, Black/brown offenders are left in an exceedingly vulnerable position. NZYQ and its surrounding social sentiment represent a critical juncture to interrogate the double standards that Black/brown people face.
Who is an ‘unlawful’ non-citizen?
The interrogation of racialised double standards must precede its dismantlement. To move beyond illusory binaries of us (white Australians)/ them (Black/brown bodies), the truth of this country must first be acknowledged. The legislative force of the label ‘unlawful non-citizen’ is contingent on the falsehood that when the British and their institutions arrived in Australia, they legitimately assumed authority and ownership. Ongoing attempts to manage the movements, lives and histories of First Nations peoples aim to maintain this illusion. White people rely on this illusion to subsume authority over “who comes to this country and the circumstances in which they come”. In other words, this illusion empowers white people to decide which bodies are ‘unlawful non-citizens’ and which bodies are naturalised. Emancipation from these colonial fantasies requires an understanding that the white people and institutions that claim authority and ownership are themselves immigrants. Such understanding dismantles the ideological separation between ‘us’ and ‘them’ that the colonial project is desperate to uphold. In reality, ‘us’ and ‘them’ are one. The stories of supposedly ‘unlawful’ immigrants mirror many Australian generational stories: people who endure great risks to build a better life for themselves and their loved ones. By appreciating what one shares with refugees, rather than attempting to assert feigned superiority over non-citizens, one can begin to champion a more humane approach to immigration law that underscores the fundamental equality of every life.
Ruchira Abeyratna is a Juris Doctor candidate at UNSW Sydney.