November at Nomos
Although we’re approaching the end of the year, there is no sign of things slowing down in the immigration space. Here’s our snapshot of the busy month that was November:
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- One of the most publicized immigration events this month was the landmark High Court of Australia’s ruling on 8 November which upturned almost 20 years of legal precedent on the issue of indefinite immigration detention. The Court’s unanimous decision, led by the new Chief Justice Stephen Gageler AC, forced the government to release no fewer than 140 immigration detainees on constitutional grounds. While previously there was no limit to the length of time an individual could be held in immigration detention under Australian law, the Court’s decision has made it abundantly clear that if there is no real prospect of deporting a detainee in the foreseeable future, such an individual must be released. Until this decision, the leading case in this area was Al-Kateb v Godwin of 2004 which, by a 4-3 majority ruling, allowed the government to hold individuals in indefinite immigration detention on the provision that such individuals would eventually be deported. The broader community’s response to the decision has been mixed to say the least, especially with media reports of the serious crimes some of the released detainees are allegedly guilty of having committed. At present, the federal government is scrambling to put new legislation in place to address the implications of the High Court’s decision. Over the past five years, the average length of detention for an individual increased from 445 days to 708 days, but some people have been detained for over 10 years – an outrageous amount of time. It’s also worth pointing out that between 2020 and 2021, it was determined that the average cost to the Australian taxpayers was $428,542 per individual held in an immigration detention facility per year.
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- The High Court’s decision stemmed from the appeal of a stateless Rohingya man (pseudonym NZYQ) who arrived in Australia in 2012 by boat after fleeing Myanmar. After spending just over 12 months immigration detention due to his method of arrival in Australia, NZYQ was released into the community but was soon convicted of sexual intercourse with a minor and thus sentenced to 5 years imprisonment. During his incarceration, NZYQ applied for a Protection visa, and although he did qualify for protection, his criminal history prevented the granting of a Protection visa. Upon his release from prison, NZYQ was taken to immigration detention, but both international law and Australian law prohibit forcibly returning people – regardless of their personal history or their means of arriving in Australia – back to places where they are at risk of facing persecution, which NZYQ was found to be. Further, the Migration Act 1958 requires “unlawful non-citizens” to be held in detention until they are removed from Australia or else granted a visa – and it did not appear that either was likely to happen for NZYQ. As such, NZYQ’s appeal focused on two questions, namely did the detention provisions allow for potentially indefinite detention of unlawful non-citizens when there is no reasonable prospect of deportation, and if yes, was this constitutional? Intriguingly, the High Court answered “yes” to the first question (agreeing with the essence of the majority decision in Al-Kateb v Godwin) but “no” to the second, meaning that the detention provisions in these circumstances were unconstitutional. In short, it was determined that immigration detention is generally considered a punishment, and the power to order such punishments lies solely with the judiciary. The exception to this occurs only when immigration detention, while still perceived as a punishment, is enforced for the purpose of either eventual deportation or for a valid visa application to be made and granted by a detainee.
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- The long-awaited legislative changes promised by the Minster came into law on 25 November 2023. While the ENS subclass 186 visa pathway was subject to the most significant changes, other changes came into effect on 25 November as well. For a more detailed breakdown of the changes, tale a look at our previous explainer post. If you or someone you know would benefit from professional guidance on these changes, please contact us directly and we will be happy to assist.
That’s the Nomos wrap-up for November. It’s almost the end of the year, so this is our final wrap up for 2023. Just a reminder that we will be closed from noon on Friday 22 December 2023, and we will reopen on Monday 15 January 2024. We will have a skeleton staff available over the break in case of urgent client matters.
*This is general information only, as at the date of publication, and should not be interpreted as legal advice. For an accurate and current assessment of your circumstances and visa options, please contact us to receive this advice.
