Constitutional law (Cth) – Judicial power of Commonwealth – Immigration detention – Indefinite detention without judicial order – Where plaintiff stateless Rohingya Muslim having well-founded fear of persecution in Myanmar – Where plaintiff's bridging visa cancelled following criminal conviction – Where following release from criminal custody plaintiff taken into immigration detention under s 189 of Migration Act 1958 (Cth) ("Act") – Where plaintiff's application for protection visa refused and finally determined – Where ss 198(1) and 198(6) of Act imposed duty upon officers of Department administering Act to remove plaintiff from Australia as soon as reasonably practicable – Where s 196(1) of Act required plaintiff to be kept in immigration detention until removed from Australia, deported, or granted visa – Where attempts by Department to remove plaintiff from Australia unsuccessful as at date of hearing – Where no real prospect of removal of plaintiff from Australia becoming practicable in reasonably foreseeable future – Where plaintiff sought writ of habeas corpus requiring release from detention forthwith – Whether application for leave to reopen constitutional holding in Al Kateb v Godwin (2004) 219 CLR 562 should be granted – Whether constitutional holding in Al Kateb should be overruled – Whether detention of plaintiff punitive contrary to Ch III of Constitution – Whether separation of plaintiff from Australian community pending removal constitutes legitimate and non-punitive purpose – Whether detention of plaintiff reasonably capable of being seen as necessary for legitimate and non punitive purpose.
Immigration – Unlawful non-citizens – Detention pending removal from Australia – Where no real prospect of removal of plaintiff from Australia becoming practicable in reasonably foreseeable future – Whether detention of plaintiff authorised by ss 189(1) and 196(1) of Act – Whether application for leave to reopen statutory construction holding in Al-Kateb should be granted.
Words and phrases – "alien", "conservative cautionary principle", "deportation", "deprivation of liberty", "executive detention", "habeas corpus", "indefinite detention", "judicial function", "judicial power of the Commonwealth", "legitimate and non-punitive purpose", "Lim principle", "penal", "power to exclude", "practicable", "punishment", "punitive", "real prospect", "reasonably capable of being seen as necessary", "reasonably foreseeable future", "removal from Australia", "separation from the Australian community", "unlawful non-citizen".
Constitution – s 51(xix), Ch III.
Migration Act 1958 (Cth) – ss 3A, 189, 196, 198.
Dr James Stellios appeared for the Applicant.
Reasons for the High Court’s decision can be found here.