Full Court Minute Books

Case S28/2023

NZYQ v. Minister for Immigration, Citizenship and Multicultural Affairs & Anor

Case No.

Case no S28/2023

Case Information


Constitutional law (Cth) – Judicial power of the Commonwealth – Unlawful non-citizen in immigration detention – No real prospect of removal from Australia in reasonably foreseeable future – Whether provision for indefinite detention without judicial order infringes Chapter III of the Constitution – Whether detention involves an exercise of judicial power of the Commonwealth by the Executive – Whether detention is for a non-punitive purpose – Whether Court should overrule or distinguish Al-Kateb v Godwin (2004) 219 CLR 562.

Immigration – Unlawful non-citizens – Detention pending removal from Australia – No real prospect of removal from Australia in reasonably foreseeable future – Whether detention lawful under Migration Act 1958 (Cth) – Whether detention is temporally limited by purpose of removal – Whether requirement to remove as soon as reasonably practicable implies time limit on detention – Whether position considered in Al-Kateb altered since decision in Commonwealth v AJL20 (2021) 273 CLR 43 because of introduction of s 197C(3) of Migration Act.

Statutes – Acts of Parliament – Construction and interpretation – Presumption of legislative intention not to invade personal common law rights.


05/04/2023 Application for Constitutional or other writ

02/06/2023 Hearing (Single Justice, Canberra by video-connection)

06/06/2023 Order referring special case to the Full Court

01/09/2023 Written submissions (Plaintiff)

01/09/2023 Chronology (Plaintiff)

03/10/2023 Written submissions (Defendants)

24/10/2023 Reply

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