Hc judgement - Ankle Bracelets for Former Immigration Detainees

In 2023 and 2024, the High Court of Australia delivered two constitutional decisions - NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) HCA 37 and YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (2024) HCA 40 - that clarified the limits of executive immigration detention and post-release regulatory constraints under the Australian Constitution.

In NZYQ, the Court held that indefinite immigration detention in circumstances where deportation is not reasonably practicable is unlawful as an exercise of executive power. In YBFZ, the Court held that mandatory curfew and electronic monitoring conditions attached to visa grants can be punitive and therefore fall outside executive power where they infringe the judicial function entrenched in Chapter III of the Constitution.

Background – Arrival in Australia and the Path to Detention

The plaintiff in NZYQ was a stateless Eritrean man who arrived in Australia as a refugee. He was granted a visa on protection grounds and settled in Australia.

Following later criminal convictions, the Minister cancelled his visa under the Migration Act 1958 (Cth). After serving a term of imprisonment, he was detained in immigration detention as an unlawful non-citizen under section 189 of the Migration Act.

Anonymised Identifiers

The High Court uses anonymised identifiers such as NZYQ and YBFZ in matters involving personal liberty to protect identity where publication could cause harm or where privacy protections apply. These identifiers are procedural labels used for case management and reporting, not substantive legal categories.

In subsequent proceedings, the same individual appeared under the anonymised identifier YBFZ in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (2024) HCA 40, challenging mandatory conditions attached to his release from immigration detention.

Why Removal Was Not Possible

After the plaintiff’s visa cancellation, the Minister was unable to remove him from Australia because he was stateless, meaning no country would accept his return. A protection finding later recognised that he was owed protection obligations, confirming that removal was not feasible in the reasonably foreseeable future.

The High Court held that where removal is not reasonably practicable, continued detention cannot be justified as a non-punitive administrative measure and therefore becomes constitutionally invalid.

1. nzyq - indefinite immigration detention

   
   

Under the Migration Act 1958 (Cth):

• Section 189 mandates immigration detention of unlawful non-citizens.

• Other provisions require detention until removal, deportation, or grant of a visa.

In NZYQ the High Court considered whether the statutory regime authorised continued detention where removal was not reasonably foreseeable.

High Court Findings

• Where there is no real prospect of removal becoming practicable, continued detention is not reasonably capable of being seen as necessary for a legitimate non-punitive purpose.

• Indefinite detention in such circumstances exceeds executive power under Chapter III of the Constitution because it amounts to punitive detention without judicial order.

As a result, the Court held that continued detention in such circumstances is unlawful and ordered the plaintiff’s release.

2. Post-Release Conditions and Bridging Visas

Following NZYQ, a cohort of persons released from detention were granted Bridging R visas with mandatory conditions, including curfew requirements (typically 10 pm–6 am) and continuous electronic monitoring by ankle-worn devices.

These conditions were imposed by regulation and included criminal penalties for breach, with maximum terms of imprisonment and fines.

3. YBFZ – Constitutional Challenge to Conditions

In YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (2024) HCA 40, the High Court considered whether the mandatory curfew and monitoring conditions on Bridging R visas were constitutionally valid.

High Court Findings

• The curfew and electronic monitoring conditions engaged significant deprivations of liberty and bodily integrity, and imposed automatic criminal liability for breach.

• The conditions were found to be punitive in character rather than merely administrative risk-management measures.

• The imposition of punitive conditions by the executive, without judicial determination of guilt and sentencing, contravened the separation of judicial power under Chapter III of the Constitution.

• The relevant provisions of the Migration Regulations 1994 (Cth) were held invalid to the extent of inconsistency with the Constitution.

  
  

Legal Significance

These decisions establish a constitutional framework governing immigration detention and post-release conditions:

• Detention without a real prospect of removal cannot be sustained as a valid exercise of executive power.

• Punitive conditions may not be imposed by regulation without judicial oversight or sentencing authority.

• The separation of powers doctrine constrains both detention and post-release regimes where they operate in a punitive manner.

legal conclusion and practical effect

The High Court’s decisions in NZYQ and YBFZ established that:

• Detention cannot be maintained indefinitely where removal is not reasonably practicable, because continued detention becomes punitive in substance and exceeds executive power.

• Mandatory post-release conditions that are punitive in effect - such as continuous electronic monitoring and nightly curfews with criminal penalties for breach - cannot be imposed by the executive through regulation, because punishment is a judicial function under Chapter III of the Constitution.

  
  

Effect on Living Conditions

As a result of the NZYQ ruling, the man was released from immigration detention because there wTTas no feasible pathway for removal. Following release, he was placed on a Bridging R visa subject to mandatory curfew and electronic monitoring conditions. After YBFZ, those conditions were held invalid, meaning:

• The curfew requirement ceased to have legal effect,

• The electronic monitoring requirement ceased to have legal effect, and

• Criminal penalties for breaching those conditions could not be enforced.

  
  

In practical terms, the decisions meant that the man was no longer confined by detention, and he was no longer legally required to live under a class-wide regime of surveillance and movement restriction imposed by the executive. His liberty was restored to a level consistent with ordinary visa conditions, subject only to lawful, non-punitive administrative requirements.

professional significance

These cases confirm that constitutional protections apply to non-citizens and that executive power is constrained where it operates in a punitive way. Future immigration policy and regulation must account for judicial oversight where liberty is restricted and ensure removal prospects exist before detention is continued.