Constitutional law (Cth) – Judicial power of Commonwealth – Immigration detention – Detention without judicial order – Where following release from custody claimants taken into immigration detention under s 189(1) of Migration Act 1958 (Cth) ("Act") – Where s 196(1) of Act required claimants to be kept in immigration detention until removed from Australia, deported, or granted visa – Where claimants had pending application for protection visa – Where ss 198(1) and 198(6) of Act imposed duty upon officers to remove unlawful non-citizen from Australia as soon as reasonably practicable where request made in writing or visa application finally determined – Where Administrative Appeals Tribunal ("Tribunal") found claimants satisfied criterion for protection visa in s 36(2)(aa) of Act and were owed protection obligations – Where claimants were granted visa and released from immigration detention following Tribunal finding – Where claimants sought declaration that detention from time of Tribunal finding to release from immigration detention unlawful on basis that detention exceeded constitutional limitation identified in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; 415 ALR 254 – Whether continuing detention of claimants exceeded constitutional limitation identified in NZYQ – Whether question of real prospect of removal from Australia becoming practicable in reasonably foreseeable future arose where each claimant had pending application for protection visa – Whether constitutional writ of mandamus available to compel performance of duty to consider claimants' visa applications.
Immigration – Unlawful non-citizens – Where claimants detained as unlawful non-citizens under ss 189(1) and 196(1) of Act – Whether continuing detention of claimants authorised by ss 189(1) and 196(1) of Act.
Words and phrases – "alien", "constitutional limitation expressed in NZYQ", "constitutional writ", "continuing detention", "damages", "depriving a person of their liberty", "disproportionality", "executive detention", "habeas corpus", "judicial power of the Commonwealth", "legitimate and non-punitive purpose", "Lim principle", "mandamus", "penal", "power or duty", "practicable", "protection finding", "punishment", "punitive", "real prospect", "reasonably capable of being seen as necessary", "reasonably foreseeable future", "removal from Australia", "statutory purpose", "unlawful non-citizen", "visa processing".
Constitution, s 51(xix), Ch III.
Migration Act 1958 (Cth), ss 5, 13, 36, 36A, 45, 47, 65, 189, 196, 197C, 198.
