High Court ruling reinforces prolonged and indefinite detention practices, violating Australia’s international obligations

4 April 2025

Amnesty International Australia expresses grave disappointment at the High Court's unanimous ruling affirming the constitutional validity of prolonged immigration detention while visa applications, including protection visas, are processed.

The claimants, CZA19 and DBD24, a Polish and Vietnamese man, were both formally recognised by the Administrative Appeals Tribunal as persons in need of protection. The Court determined that CZA19 faced imprisonment and cruel, degrading treatment if returned to Poland, while DBD24 faced the risk of the death penalty in Vietnam.

The Court considered the precedent set in NZYQ, which held in November 2023 that indefinite immigration detention is punitive and therefore, unlawful when there is no real prospect of a person's removal becoming practicable in the reasonably foreseeable future. The government argued that the limitations on detention established in NZYQ do not apply when a person is detained for the legitimate purpose of having their visa assessed. The High Court affirmed this position, effectively meaning that some people can still be subject to prolonged or indefinite detention.

The Court held that even if a reasonable time to consider a visa application had been exceeded, the remedy would not be release from detention - the applicant would need to make a separate court application to compel the Minister to make a decision.

Amnesty International Australia is deeply concerned about the precedent set by the High Court's decision, which reinforces the cruel and inhumane practice of indefinite detention, even for individuals whom Australia has a legal obligation to protect. Amnesty International Australia asserts that all detention practices are inhumane, cruel and punitive, and a violation of the human rights of those seeking safety.

Zaki Haidari, Amnesty International Australia's Refugee Rights Campaigner says:

"This decision regrettably allows for prolonged detention practices that are cruel and inhumane, even for people recognised as being owed protection, as in this case.

"The High Court held that detention, even for a prolonged time, is lawful for the purpose of considering a visa application. This cements Australia's long-standing practice of indefinitely detaining people fleeing persecution and seeking safety," Zaki said.

"It means that in Australia, while indefinite detention is unlawful in some circumstances, it remains permissible in others. In other jurisdictions, there are fixed time limits on immigration detention that states are required to follow.

"Australia has clear international obligations to ensure that people seeking safety are offered humane treatment and protection. Yet, time and again, the Government and Courts take one step forward and three steps back, failing to treat people seeking safety with dignity and humanity."

Zaki Haidari, Amnesty International Australia's Refugee Rights Campaigner

"The Government and Courts must recognise Australia's legal and moral obligations to those seeking safety. Subjecting them to prolonged and indefinite detention amounts to cruel, inhumane and arbitrary treatment, in violation of international law. Australia must fulfil its obligations and implement humane and dignified solutions, especially for individuals awaiting the outcome of protection visa applications."

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