Indefinite Detention

In 2023, the High Court of Australia handed down a decision in the matter of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor that ruled that indefinite immigration detention is unlawful under the Migration Act 1958. The decision reversed the 2004 High Court decision of Al Kateb v Godwin, in which the court had found that the indefinite detention of a stateless person was permissible. This page deals with the changes to the law on indefinite detention under the Migration Act 1958.

Migration Act 1958

Under section 189 of the Migration Act 1958, if a person who is an unlawful non-citizen is within the migration zone or is seeking to enter the migration zone, they must be detained.

A person may only be removed from immigration detention if:

• they are granted an Australia visa
• they are deported from Australia
• they are removed from Australia

International law

Arbitrary detention is contrary to the principles of international law as set out in Conventions including the International Declaration of Human Rights and the International Covenant on Civil and Political Rights.

History of indefinite detention in Australia

Prior to the 2023 High Court ruling, indefinite immigration detention was legal in Australia and a significant number of unlawful non-citizens were being held in detention centres indefinitely. These detainees had no Australian visa options open to them but could not be removed from Australia.

Persons in this category included those whose Australian visas had been revoked because they no longer passed the character test (because they had been charged or found guilty of a criminal offence, or for another reason) as well as stateless asylum seekers who had been unsuccessful in their refugee claims.

A person in this situation faced the prospect of being held in immigration detention until another country was willing to accept their return. In reality, this meant that most such detainees would be detained for the rest of their lives.

Al Kateb v Godwin

In 2004, a stateless Palestinian asylum seeker challenged his ongoing detention on the basis that he had no prospect of being removed from Australia in the foreseeable future and that his detention was therefore illegal both under Australian law and under international law.

The government argued that the man’s detention was administrative rather than punitive in character and therefore permissible under the Migration Act 1958. It argued that his detention was for the purpose of removal from Australia notwithstanding that removal was currently impossible.

A majority of the High Court found in the government’s favour. Hayne J’s judgment found that deportation and removal always involve a level of uncertainty and that the fact that Al Kateb could not currently be removed from Australia did not mean that his removal would not be possible in the future. His continued detention was, therefore, still occurring for the purpose of removal.

NZYQ v Minister for Immigration

The matter of NZYQ v Minister for Immigration concerned a stateless Rohingya man who was being held in detention indefinitely after his visa was cancelled on character grounds.

As the man was stateless, he could not be returned to his country of origin and there was no third country that would accept him. There was therefore no practicable option for removing the man and he was facing detention for the rest of his life. He argued that his detention was unlawful under the Migration Act 1958 and under international law.

The High Court agreed with the plaintiff, overturning almost 20 years of case law, and rendering the practice of indefinite immigration detention illegal under Australian law.

Consequences of the decision

As a result of the High Court’s decision in NZYQ v Minister for Immigration, 93 unlawful non-citizens were immediately released from detention, with the legality of the detention of many more people thrown into doubt.

The decision was celebrated by human rights advocates as a victory for human rights and for the rule of law. However, it was met by concern and criticism by both the government and the opposition, with Opposition Leader Peter Dutton claiming that the detainees released were ‘hardcore criminals’.

A week after the decision, the government passed legislation creating a new regime for people released from detention on Bridging Visa R. The new scheme involves strict visa conditions and severe penalties if those conditions are breached.

Bridging Visa R

The Bridging Visa R (Removal Pending) visa subclass 080 is a bridging visa that can be granted to a person who is to be removed from Australia but where removal is currently not practicable.

The Bridging Visa R is subject to 10 mandatory conditions including that the holder notify the department of the details of any person who lives with them, that they seek approval from the Minister before working with minors or vulnerable persons and that they notify the Department of any interstate or overseas travel. A Bridging Visa R will also carry conditions that the holder abide by a curfew and wear an electronic monitoring device unless the Minister is satisfied that the person does not pose a risk to the community.

A breach of the conditions of a Bridging Visa R is a criminal offence punishable by a maximum of five years imprisonment. A minimum sentence of one year of imprisonment must be imposed when a person is found guilty of this offence.  

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