Where there was no real prospect of removal of Plaintiff from Australia becoming practicable in reasonably foreseeable future, was Plaintiff's detention authorised by Sections 189(1) and 196(1) Migration Act, 1958 (Cth)?

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (28 November 2023)

Intro: This is an appeal from the Full Court of the Federal Court of Australia.

Facts:

The plaintiff is a stateless Rohingya Muslim. He arrived in Australia by boat in 2012 and was taken into immigration detention on arrival under s 189 of the Migration Act 1958 (Cth) ("the Migration Act"). He was granted a bridging visa in 2014.

In 2016, the plaintiff pleaded guilty in the District Court of New South Wales to a sexual offence against a child. He was sentenced to imprisonment for five years with a non‑parole period of three years and four months. Upon his release from criminal custody on parole in 2018, he was taken again into immigration detention under s 189(1) of the Migration Act.

Whilst still in criminal custody, the plaintiff had applied for a protection visa. His application was considered by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs ("the Minister") in 2020. The delegate found him to have a well‑founded fear of persecution in Myanmar. Having regard to his conviction, however, the delegate found there to have been reasonable grounds for considering him a danger to the Australian community. On the basis of that finding, the delegate found that the plaintiff failed to satisfy the criterion for a protection visa set out in s 36(1C)(b) of the Migration Act and for that reason refused to grant him a protection visa.

The Administrative Appeals Tribunal affirmed the decision of the delegate following which the Federal Court of Australia dismissed an application for judicial review of the decision of the Tribunal in 2022. That final determination of his visa application engaged the duty imposed on officers of the Department of Home Affairs ("the Department") by s 198(6) of the Migration Act to remove the plaintiff from Australia as soon as reasonably practicable. Also in 2022, the plaintiff wrote to the Minister requesting his removal. That request engaged another duty imposed on officers of the Department by s 198(1) of the Migration Act to remove the plaintiff from Australia as soon as reasonably practicable.

By reason of the finding that the plaintiff had a well‑founded fear of persecution, and in the absence of any relevant change of circumstances, the operation of s 197C(3) of the Migration Act was such that s 198(1) and (6) did not require or authorise an officer to remove him to Myanmar. In any event, he does not have any right of entry to or residence in Myanmar. The plaintiff had relatives in Saudi Arabia and in Bangladesh. But there was no real prospect of him being provided with a right to enter or reside in either of those countries. No country in the world has an established practice of offering resettlement to persons in Australia who have been convicted of sexual offences against children and the Department had never successfully removed from Australia any person convicted of a sexual offence against a child to a country other than a country which recognised the person as a citizen.

Against that background, on 5 April 2023 the plaintiff commenced a proceeding against the Minister and the Commonwealth of Australia in the original jurisdiction of the High Court under s 75(v) of the Constitution and s 30 of the Judiciary Act 1903 (Cth). The plaintiff claimed in the proceeding that his continuing detention was not authorised by ss 189(1) and 196(1) of the Migration Act. He claimed that to be the result of the proper construction of those provisions. He claimed in the alternative that those provisions contravened Ch III of the Constitution.

Issue:-

1) Whether application for leave to reopen statutory construction holding in Al-Kateb should be granted.

2) Whether application for leave to reopen constitutional holding in Al‑Kateb v Godwin should be granted and whether constitutional holding in Al‑Kateb should be overruled?

Consideration:-

Al-Kateb

Since they were inserted on 1 September 1994, Divs 7 and 8 of Pt 2 of the Migration Act have provided for the mandatory detention and mandatory removal from Australia of an "unlawful non-citizen", being someone who is not an Australian citizen and who does not hold a valid visa permitting them to travel to and enter Australia or to remain in Australia. The basic structure and the text of the critical provisions of Divs 7 and 8 have not altered since then. The critical provisions operate by imposing duties on "officers", including officers of the Department.

Within Div 7, s 189(1) imposes a duty on an officer to detain a person who the officer "knows or reasonably suspects ... is an unlawful non-citizen". Critically, the duration of the detention authorised and required by s 189(1) is governed by s 196(1), which provides that the unlawful non‑citizen "must be kept in immigration detention until" the occurrence of one of several specified events. One of those events, specified in s 196(1)(c), is that "he or she is granted a visa". Another, specified in s 196(1)(a), is that "he or she is removed from Australia under [s] 198".

Ten years after the insertion of Divs 7 and 8 of Pt 2 into the Migration Act, in Al‑Kateb v Godwin, the High Court examined the application of ss 189(1) and 196(1) to an unlawful non‑citizen in respect of whom there was no real prospect of removal under s 198(1) or s 198(6) becoming practicable in the reasonably foreseeable future. The ratio decidendi comprised two holdings. First, by majority (McHugh, Hayne, Callinan and Heydon JJ, Gleeson CJ, Gummow and Kirby JJ dissenting), the Court held that ss 189(1) and 196(1) on their proper construction applied to require the continuing detention of such a person. Secondly, and also by majority (McHugh, Hayne, Callinan and Heydon JJ, Gummow J dissenting, Gleeson CJ and Kirby J not deciding), the Court held that ss 189(1) and 196(1) as so applied did not contravene Ch III of the Constitution. Al‑Kateb was immediately applied to uphold the continuing detention of an unlawful non-citizen in materially identical circumstances in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji.

No reopening of the statutory construction holding in Al-Kateb

Despite Gummow and Bell JJ's criticism in Plaintiff M47/2012 of the construction of ss 189(1) and 196(1) adopted by the majority in Al‑Kateb, the process of reasoning which led the majority in Al‑Kateb to that construction cannot be said to have overlooked any principle of statutory construction on which the minority in Al‑Kateb relied or on which the plaintiff and amici placed emphasis in argument on the special case. The difference between the majority and minority in Al‑Kateb was in the application of those principles of statutory construction to the enacted text of ss 189(1) and 196(1), and in particular the weight to be given to textual considerations in ascertaining the meaning, which Hayne J in the majority described as "intractable".

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In 2021, the considerations of legislative reliance and implicit legislative endorsement identified by Kiefel and Keane JJ in 2013 were reinforced by the Parliament's assumption as to the correctness of the Al‑Kateb construction which informed the insertion of s 197C(3) by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth).

To all of those considerations of legislative reliance and implicit legislative endorsement must now also be added the decision in The Commonwealth v AJL20. There the majority (Kiefel CJ, Gageler, Keane and Steward JJ) endorsed key aspects of the reasoning of the majority on the issue of statutory construction in Al‑Kateb. The majority did so in referring to the statutory construction holding in Al‑Kateb, and saying that the word "until" in conjunction with the word "kept" in s 196(1) indicates that detention under s 189(1) is "an ongoing or continuous state of affairs that is to be maintained up to the time that the event (relevantly, the grant of a visa or removal) actually occurs".

The cumulation of these considerations leads inexorably to the conclusion, reflected in the answers stated in the order made at the end of the hearing of the special case, that leave to reopen the statutory construction holding in Al‑Kateb should not be granted.

Reconsidering Al-Kateb in light of the Lim principle

The question whether the constitutional holding in Al‑Kateb should be overruled is to be determined by reference to the consistency of that holding with the Lim principle as stated in Lim itself and as understood and applied in subsequent cases.

Expressed at an appropriate level of generality, the principle in Lim is that a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose. In other words, detention is penal or punitive unless justified as otherwise.

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Consistency with the Lim principle accordingly entails that "a Commonwealth statute which authorises executive detention must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved".

It is appropriate to identify the point of departure between our reasoning and the reasoning of the majority in Al‑Kateb in support of the constitutional holding. In Al‑Kateb, McHugh J observed:-

"A law requiring the detention of the alien takes its character from the purpose of the detention. As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non-punitive."

This Court is unanimous in concluding that this is an incomplete and, accordingly, inaccurate statement of the applicable principle.

The approach of six members of the Court

This statement of the scope of the power to detain aliens differs from that in Lim, which, as noted, has become authoritative. The application of the principle in Lim, although ultimately directed to a single question of characterisation (whether the power is properly characterised as punitive), requires an assessment of both means and ends, and the relationship between the two. Applying that principle in circumstances where there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future, it cannot be said that, objectively determined, the "purpose of the detention is to make the alien available for deportation" or "to prevent the alien from entering Australia or the Australian community" pending the making of a decision as to whether or not they will be allowed entry.

Applying the constitutional limitation

If Al‑Kateb was to be reopened and overruled, the defendants made a correct and important concession. The plaintiff having discharged an initial evidential burden of establishing that there was reason to suppose that his detention had ceased to be lawful by reason that it transgressed the applicable constitutional limitation on his detention, the defendants conceded that they bore the legal burden of proving that the constitutional limitation was not transgressed. The concession was correct having regard to the coincidence of two fundamental principles. The first, a principle of common law reflected in the traditional procedure for obtaining a writ of habeas corpus, is that where a person in the detention of another adduces sufficient evidence to put the lawfulness of that detention in issue, the legal burden of proof shifts to the other to establish the lawfulness of that detention. The second, a principle of constitutional law, is that "it is the duty of the Court in every constitutional case to be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for the legislation".

To establish that ss 189(1) and 196(1) of the Migration Act validly applied to authorise continuation of the plaintiff's detention, the defendants were accordingly required to prove that there existed a real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. Whilst the proof was required to be to a standard sufficient to support the making of a finding of fact to the level of satisfaction appropriate in a civil proceeding where individual liberty is in issue, the prospective and probabilistic nature of the fact in issue (that is, the fact of a real prospect of the plaintiff's removal from Australia becoming practicable in the reasonably foreseeable future) would have the potential to be confused were the standard of proof to be "on the balance of probabilities".

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The necessary conclusion of fact is that by the end of the hearing there was, and had been since 30 May 2023, no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future. It followed from that conclusion of fact that ss 189(1) and 196(1) of the Migration Act did not validly apply to authorise the continuation of the plaintiff's detention then and had not validly applied to authorise the plaintiff's detention since 30 May 2023.

Consequence of invalidity for the liberty of the plaintiff

The consequence of ss 189(1) and 196(1) of the Migration Act not validly applying to authorise the continuation of the plaintiff's detention at the end of the hearing on 8 November 2023 is that the sole statutory basis relied on by the defendants for the continuation of his detention fell away and the plaintiff was entitled to his common law liberty.

Release from unlawful detention is not to be equated with a grant of a right to remain in Australia. Unless the plaintiff is granted such a right under the Migration Act, the plaintiff remains vulnerable to removal under s 198. Issuing of a writ of habeas corpus would not prevent re‑detention of the plaintiff under ss 189(1) and 196(1) of the Migration Act in the future if, and when, a state of facts comes to exist giving rise to a real prospect of the plaintiff's removal from Australia becoming practicable in the reasonably foreseeable future. Nor would grant of that relief prevent detention of the plaintiff on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody.

For completeness, it should be recorded that there was no issue between the parties that the invalidity of ss 189(1) and 196(1) of the Migration Act in their application to authorise the plaintiff's detention in circumstances found to contravene the applicable constitutional limitation cannot affect the validity of those provisions in their application to authorise detention in other circumstances.

Conclusion:-

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.

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