Page:NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/12

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

unlawful non-citizen "who asks the Minister, in writing, to be so removed". Section 198(6) imposes such a duty in respect of an unlawful non-citizen in immigration detention who has applied for a visa which has been refused and whose application has been finally determined. As has been noted, both of those duties were engaged in respect of the plaintiff in 2022. Each of those duties would be compellable by a writ of mandamus under s 75(v) of the Constitution were removal of the plaintiff reasonably practicable. But a writ of mandamus compelling performance of those duties would be futile if there were no real prospect of removal becoming practicable in the reasonably foreseeable future and understandably that remedy has not been sought by the plaintiff in the proceeding.

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.

Unless and except to the extent Al-Kateb was to be reopened and overruled, Al-Kateb stood as an implacable obstacle to the plaintiff's claims. The plaintiff therefore needed leave to reopen Al-Kateb and appropriately sought that leave. The arguments of the parties and of the amici curiae on the hearing of the special case were primarily directed to whether the leave to reopen Al-Kateb sought by the plaintiff should be granted and, if so, whether Al-Kateb should be overruled. It was common ground that leave to reopen Al-Kateb should be considered separately for each of the two holdings of the majority.