NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

NZYQ PLAINTIFF

AND

MINISTER FOR IMMIGRATION, CITIZENSHIP AND

MULTICULTURAL AFFAIRS & ANOR DEFENDANTS

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] HCA 37

Date of Hearing: 7 & 8 November 2023

Date of Order: 8 November 2023

Date of Publication of Reasons: 28 November 2023

S28/2023

ORDER

The questions stated for the opinion of the Full Court in the further amended special case filed on 31 October 2023 be answered as follows:

Question 1: On their proper construction, did sections 189(1) and 196(1) of the Migration Act 1958 (Cth) authorise the detention of the plaintiff as at 30 May 2023?

Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).

Question 2: If so, are those provisions beyond the legislative power of the Commonwealth insofar as they applied to the plaintiff as at 30 May 2023?

Answer: Yes.

Question 3: On their proper construction, do sections 189(1) and 196(1) of the Migration Act 1958 (Cth) authorise the current detention of the plaintiff?

Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).

Question 4: If so, are those provisions beyond the legislative power of the Commonwealth insofar as they currently apply to the plaintiff?

Answer: Yes.

Question 5: What, if any, relief should be granted to the plaintiff?

Answer: The following orders should be made:

(1) It is declared that, by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future:

(a) the plaintiff's detention was unlawful as at 30 May 2023; and

(b) the plaintiff's continued detention is unlawful and has been since 30 May 2023.

(2) A writ of habeas corpus issue requiring the defendants to release the plaintiff forthwith.