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How a High Court verdict upended indefinite detention



On 8 November, the High Court ordered a stateless Rohingya refugee known only as NZYQ to be freed from detention because he cannot be removed. NZYQ arrived in Australia by boat about 2012. He was granted a bridging visa and released from detention in 2013. He lived in a group home with his brother, studied English and participated in community events. He could not have imagined how he would become a national issue and feature in a High Court case that seems to have overturned over 20 years of authority.

In January 2015 he was charged with sexually assaulting a 10-year-old boy and his bridging visa was revoked. In January 2016, he was convicted in the District Court of NSW and sentenced to five years imprisonment with a non-parole period of 3 years four months. In prison he attended programs to help him exercise self-control, as well as English and computer courses, and worked in the kitchen.

Probably due to his immigration status he was not offered the sex offender program in prison, despite his request to participate. After completing his sentence, he was transferred to immigration detention. Here he received counselling but does not appear to have been offered programs recommended for sex offenders, possibly because such programs are not available in immigration detention. In detention, he told a psychologist he had been abused as a child. He accepted that he should not have done what he did and he expressed some level of remorse.

He was not able to make an application for protection until permitted by the Minister because he arrived by boat and was an ‘unauthorised maritime arrival’. Such a designation creates a statutory bar (s46A) preventing lodging any visa at all, unless the Minister personally intervenes. He lodged his application in 2017.

He commenced trauma counselling in 2018 in detention, but that did not continue because he was transferred to another detention centre. 

His application was not decided until 30 July 2020, when it was refused under s36(1C)(b) of the Migration Act. This section creates a refusal ground for a protection visa for someone who ‘was convicted of a particularly serious crime’, and is reasonably considered to be a ‘danger to the community’. It means that to get to this stage, it must have been accepted that he met the inclusion grounds for a protection visa. He lodged an appeal to the Administrative Appeals Tribunal and was represented by an experienced lawyer from Legal Aid. However, the case was affirmed, or refused, on 4 March 2022.

NZYQ then appealed to the Federal Court, where he was unrepresented. The case finally went to the High Court, where he had representation. On 8 November the High Court held that his detention until 30 May 2023 was valid, but thereafter was invalid, meaning he was held unlawfully in detention after that date. The High Court ordered he be released under the ‘ancient’ writ of habeas corpus. The Court published its reasons on 28 November, finding seven-nil in favour of NZYQ.


'We do not know for certain, but given the strong country information, it is likely that NZYQ met the inclusion grounds as a refugee. It is worth considering the DFAT report on Myanmar to get a better understanding of why.'


The case raises a number of particularly complex issues for protection visas and for immigration detention. Let us start with the protection issues: a protection visa has two alternatives to be successful. The criteria are heavily codified in the Migration Act.

The first possible ground is the refugee criteria, which requires an applicant to have a ‘well-founded fear of persecution’ for one or more of the five grounds: race, religion, nationality, particular social group, or political opinion. If they do not meet this criterion, then the alternative ground of ‘complementary protection’ is assessed. This deals with ‘non-refoulement obligations’ (to not return someone) under the Convention Against Torture, International Covenant on Civil and Political Rights, or if a death penalty will be carried out. 

We do not know for certain, but given the strong country information, it is likely that NZYQ met the inclusion grounds as a refugee. It is worth considering the DFAT report on Myanmar to get a better understanding of why.

The second issue is the factual grounds as a Rohingya. The Rohingya people are excluded from citizenship in Myanmar, formerly known as Burma. The November 2022 DFAT report notes the following about the Rohingya:


The Rohingya are a predominantly Sunni Muslim ethnic group, the vast majority of whom live in Rakhine State in north-western Myanmar. They speak an Indo-Aryan language closely related but not identical to the dialect of Bengali spoken in the Chittagong region of Bangladesh. The Rohingya trace their origins to Muslim traders and bodyguards who lived in north-western Myanmar since the Mrauk-U period (1430–1784), although many migrated from Bangladesh more recently, especially during the British colonial period (1784–1948). An estimated 1.2 million Rohingya lived in Myanmar before August 2017, when a military crackdown drove around 700,000 to flee to Bangladesh. (3.5)


DFAT notes they are stateless, meaning they have no nationality:


Due to their exclusion from citizenship the Rohingya are denied fundamental rights and basic services in Myanmar, including access to health care and education, employment opportunities, freedom of movement, freedom to choose the timing and number of their children, freedom to marry whom they choose, and freedom to run for political office. (3.7)

DFAT assesses all Rohingya in Myanmar are at high risk of official discrimination, including denial of basic rights and services, on the basis of their ethnicity and Muslim religion. Within Rakhine, Rohingya face a high risk of societal discrimination from other ethnic groups and a high risk of violence from security forces and ethnic militias. (3.12)


They have long been targeted and persecuted by the authorities.


In March 2022, the US Government formally determined the Myanmar military’s actions against the Rohingya constituted genocide and crimes against humanity  ….  Throughout Rakhine, Rohingya are vulnerable to people trafficking and exploitation by criminal gangs, as well as violence at the hands of security forces and other ethnic groups. (3.12)


As Muslims, DFAT notes:


Anti-Muslim sentiment is prevalent in Myanmar and is circulated through social media, state institutions and mainstream news websites. Muslims are often called by racial slurs and subject to hate speech. (3.30)


A claim by a Rohingya for protection has strong support from DFAT’s own report, let alone many other sources. So having met the protection obligations, only an adverse security or character assessment would be grounds for refusing such an applicant.

The refusal was on the basis of a ‘conviction for a particularly serious crime’. It is defined in s5M as ‘a serious Australian offence’, which in turn is defined as an ‘offence of violence against a person … punishable by imprisonment for at least 3 years’. Given the offence and sentencing, NZYQ is affected by this exclusion ground.

However, being ‘excluded’ does not mean he is removed to Myanmar. Firstly, as he meets the ‘non-refoulement obligations’, Australia cannot return him to a country where he faces persecution. More significantly, he is stateless, so cannot be sent anywhere. This leads to the issue of indefinite mandatory detention.

As he cannot be granted a visa because of his offence, and he cannot be sent anywhere because he is stateless, what happens to NZYQ? Until 8 November, it was thought the law was clear — he could be detained as long as it was possible to send him somewhere. It seems that the Department contacted a number of countries to see if they would take NZYQ; only the US asked for more details, without promising anything.

So, he appeared to be stuck in indefinite mandatory detention, subject to getting another country to take him. This scenario was accepted as lawful in a 2004 case called Al-Kateb v Godwin. This case involved a stateless Palestinian from Gaza, who could only be returned to Gaza if the Israeli authorities agreed. The High Court ruled that ongoing detention was lawful in this case, following the law outlined in the 1992 case of Lim, regarding Cambodians who arrived by boat. Lim held that detention was not ‘punishment’, but an administrative penalty. This is important because only the Courts can sentence someone for punishment, not the executive — a classic example of the separation of powers in the Constitution.

However, this detention could only be administered while there were ‘reasonably inquiries’ or ‘processes’ regarding possible removal. In the case of NZYQ, the High Court decided that as of 30 May 2023, this justification was exhausted; the orders stated that NZYQ was now unlawfully detained and must be released immediately.


'There followed an outcry in the media and parliament about ‘releasing serious criminals’ from detention. What was apparently forgotten was that ‘serious criminals’ who have served their sentence are released from prison every week.'


The government had no options here. It could not ignore a decision of the High Court, which would potentially place the Minister in contempt. NZYQ was released and apparently granted a Return Pending Visa subclass 070, a type of Bridging Visa. The judgment makes a technical distinction between the interpretation of the construction of the detention requirement the Migration Act and the constitutional limitation of no punishment by the executive.  The case won on the constitutional limitation point.   The old case of Al-Kateb is no longer good law for indefinite mandatory detention. 

There followed an outcry in the media and parliament about ‘releasing serious criminals’ from detention. What was apparently forgotten was that ‘serious criminals’ who have served their sentence are released from prison every week. Sometimes they have conditions of attending probation and parole pending the final completion of their sentence.

The response of the government was to amend the old Return Pending Bridging Visa conditions, creating several new offences for breach of conditions. This visa was first introduced in May 2005 with the aim, as stated in the explanatory memorandum, ‘to create a new bridging visa to enable the release, pending removal, of persons in immigration detention who have been cooperating fully with efforts to remove them from Australia, but whose removal from Australia is not reasonably practicable at the current time’.

This visa has been reopened, but it now has up to 21 conditions attached. This is an extraordinary number of conditions on any visa — rarely are there more than five or six.  Also, the breach of certain conditions such as not wearing the monitoring device (s76B), not remaining at a notified address (s76C), or breach of a condition about the monitoring device or related equipment (s76D) leads to an offence with a penalty of up to five years in prison, including a mandatory one-year imprisonment. NZYQ was sentenced to five years for his offence against a child. 

Criminalising breaches of visa conditions is a new low, and has never been done before. It is noted that the laws were rushed through parliament in less than a day, and it was accepted that when the High Court publishes the reasons for the decision, further changes may be needed.

The intersection of criminal convictions and protection obligations is probably the most complex and contentious area of migration law. Decisions in the Administrative Appeals Tribunal on this are commonly more than 50 pages and are very complex and detailed. Nobody is disputing that there needs to be a balance between serious offences and protection obligations, but there remains a question about what you do when it is not possible to send the person, like NZYQ, elsewhere. 

The area needs more careful analysis and resources such as programs for offenders to help prepare them to return to the community, as happens in prison. Detention is just a holding area until the people can be returned home, if possible. Since the NZYQ case, that idea no longer is valid. 

The High Court comments that it may be possible to have ‘a law providing for preventative detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody.’ This ‘hint’ is being taken up by the Government possibly in further amendments.

These amendments are rushed and do not address this complex issue, but do pander to the calls for action in the media and parliament. 





Kerry Murphy is an immigration and refugee lawyer and part-time lecturer on immigration and refugee law at ACU.

Topic tags: Kerry Murphy, Visa, Detention, Immigration, Refugees, Asylum Seekers, High Court



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Existing comments

The real issue is whether a law abiding asylum seeker who has had his or her claim rejected by the immigration authorities and the rejection confirmed by the judicial appeals process should be held in indefinite detention because s/he cannot be repatriated elsewhere.

The High Court declares that indefinite detention because there is no reasonably forseeable prospect of repatriation is "punishment", and "punishment" is something that can only be administered by a court after it has found "criminal guilt".

Actually, the question boils down to who has the constitutional authority to declare that an alien applying to become a member of the Australian community cannot become one. It's not the judicial branch of government. The authority to decide the parameters for such a decision constitutionally belong to the Commonwealth Parliament.

What the High Court is really saying is that if a claimant for asylum cannot be repatriated elsewhere, the Commonwealth of Australia must allow the claimant to roam freely through the community even after a decision in good faith by the Executive, in compliance with the Parliament, that the claimant does not deserve to be included in the Australian community.

Isn't the High Court trespassing on another branch of government?

s martin | 12 December 2023  
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I was involved in the original al Masri in 2002 when Ron Merkel released another Palestinian from indefinite detention because he could not get past Israel, Akram was literally taken off a plane the day they were trying to illegally deport him after 2 further judges in the full federal court upheld his habeas corpus release.

Then he was illegally trafficked out of Australia after bribes were paid and was murdered in Gaza just as he always said he would be. So far so good, a split decision on habeas corpus 2-2 in federal courts.

Then it became Al Kateb and Al Khafaji, a stateless Iraqi and the decision was 4-3 in the high court which was a dreadfully dark day. It's about time this whole detention without trial or charge was dismantled and the prisons bulldozed to the ground.

Marilyn Shepherd | 17 December 2023  

Dear S Martin, the High Court is doing its job, not trespassing anywhere. In the decision it states that just because the detention was unlawful, it does not mean that the person has a visa, that is a decision up to the Executive, which is part of the response that the Government made subsequently. The point of the separation of powers is to strengthen our democracy, to have an independent Court ruling on the lawfulness of decisions of other lower courts, and the Government.

Kerry Murphy | 18 December 2023  

Thanks Kerry.

In the Tasmanian Dams case, the then High Court ruled that a head of power explicitly given to the Commonwealth Parliament by the Constitution must be given its full effect. The effect of that decision was that to give the Commonwealth Parliament's external affairs power full effect shaved the residual power in a State to decide where a dam could be built.

Here, the circumstances are different but the situation is similar. Is the Commonwealth Parliament's power in relation to "naturalization and aliens" to be shaved by a "judicial power"?

Does the Commonwealth Parliament only have the power to exclude "aliens" from the community if they have somewhere else to go? If they haven't, then they must be allowed to move freely through the community? If that's the case, two points occur: 1. Foreign countries can determine who can move freely through Australia; 2. A visa which constricts movement will be invalid, especially if the rejected asylum seeker has committed no crimes in Australia.

Is it logical to hold that a Parliament can determine that a person cannot belong to the community but is unable to prevent that practical outcome?

s martin | 19 December 2023  

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