Page:NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/32

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

resettlement by the United States or to describe any set process or pathway that might be followed in respect of the plaintiff.

Evidence of law and practice in the United States adduced on behalf of the plaintiff indicated that acceptance of the plaintiff into the United States could not occur without the exercise of multiple statutory discretions by multiple agencies within the United States including some discretions involving waiver of statutory prohibitions. The evidence did not allow for the making of any meaningful assessment either of the likelihood of those discretions being exercised or of the timeframes within which those discretions might be exercised.

The position at the end of the hearing on 8 November 2023 was therefore that, although removal of the plaintiff to the United States remained a possibility, the evidence failed to establish that the prospect of removal to the United States occurring in the foreseeable future was realistic. Neither party submitted that the position at the end of the hearing was in any other respect different from that which had been agreed as at 30 May 2023.

The necessary conclusion of fact is that by the end of the hearing there was, and had been since 30 May 2023, no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future. It followed from that conclusion of fact that ss 189(1) and 196(1) of the Migration Act did not validly apply to authorise the continuation of the plaintiff's detention then and had not validly applied to authorise the plaintiff's detention since 30 May 2023.

Consequence of invalidity for the liberty of the plaintiff

The consequence of ss 189(1) and 196(1) of the Migration Act not validly applying to authorise the continuation of the plaintiff's detention at the end of the hearing on 8 November 2023 is that the sole statutory basis relied on by the defendants for the continuation of his detention fell away and the plaintiff was entitled to his common law liberty.

Release from unlawful detention is not to be equated with a grant of a right to remain in Australia. Unless the plaintiff is granted such a right under the Migration Act, the plaintiff remains vulnerable to removal under s 198. Issuing of