Page:NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/11

Gageler CJ Gordon J Edelman J Steward J Gleeson J Jagot J Beech-Jones J

30 May 2023 and continued to be unlawful by reason of there having then been, and continuing to be, no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. The relief also included a writ of habeas corpus requiring his immediate release.

These are our reasons for having joined in the order made on 8 November 2023 or, after consideration, for agreeing with the order made.

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".

Within Div 8, s 198 imposes duties on an officer to remove an unlawful non-citizen from Australia "as soon as reasonably practicable" in a range of specified circumstances. Section 198(1) imposes such a duty in respect of an