Beyond the Border: CZA19 Across The Indian Ocean
Douglas McDonald-Norman
20.05.2025
In its recent judgment in CZA19 v Commonwealth; DBD24 v Minister for Immigration and Multicultural Affairs [2025] HCA 8 (CZA19), the High Court has confirmed that a non-citizen may be detained for the purpose of receiving, investigating and determining their application for a visa. This is an important clarification and restatement of the principles articulated by the Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ). (For an explanation of those principles, see Sangeetha Pillai and Laura John, Josephine Langbien and Sanmati Verma for AUSPUBLAW.)
Across the ocean, in the Indian state of Assam, Rajendra Das was stripped of his Indian citizenship by a Foreigners Tribunal. This is part of a harsh and demanding process which, in conjunction with the compilation of a National Register of Citizens (NRC), has deprived nearly two million residents of Assam of citizenship where they have been unable to prove (through documentary evidence) that they or their ancestors lived in India before March 1971. In some cases, people have been deprived of citizenship based on minor inconsistencies within their identity documents – often simple matters of spelling or transliteration.
The Indian government has the power, but not a duty, to detain non-citizens. Rajendra was detained in Tezpur Detention Centre for two years. The detention centre is part of a prison, and detainees are kept in cramped and deprived conditions.
Rajendra’s wife, Rajubala Das, has commenced proceedings in the Supreme Court of India seeking to challenge India’s practice of detaining non-citizens, including those stripped of citizenship through the NRC (Rajubala Das v Union of India WP (Crl) 234 of 2020). Amritlal Das, an activist and campaigner for minority rights in Assam, has intervened in the litigation and seeks to rely on NZYQ in seeking to limit the use and duration of detention in India. Drawing upon the analysis of the Court in NZYQ, the intervenors rely upon the propositions that ‘detention is penal or punitive unless justified as otherwise’, that a person cannot be detained under a Commonwealth law (other than through the exercise of federal judicial power) unless that law ‘is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose’, and that the duration of that detention must be limited to what is necessary to achieve ‘an identified statutory purpose which is reasonably capable of being achieved’ (NZYQ at [39] and [41]).
Australia’s evolving jurisprudence on these questions is hence not just significant for detainees and governments in Australia. It can inform global conversations about when and why governments can deprive people of their liberty. This post examines CZA19 through this comparative lens. After identifying the key principles arising from this judgment, this post examines what CZA19 means for the broader jurisprudence around the permitted purposes of detention – both in Australia and in India.
CZA19: The Permitted Purposes of Detention
CZA19 is a citizen of Poland and DND24 is a citizen of Vietnam. CZA19 and DND24 both applied for protection visas. Both applicants were found by the Administrative Appeals Tribunal to satisfy s 36(2)(aa) of the Migration Act 1958 (Migration Act): that is, there is a real risk that they will suffer significant harm if removed from Australia to their countries of citizenship. These were ‘protection findings’ for the purposes of s 197C of the Migration Act.
Section 189 of the Migration Act requires the mandatory detention of unlawful non-citizens. Section 198 sets out a range of circumstances in which unlawful non-citizens must be removed from Australia. At the time of the Tribunal’s decisions, these circumstances had not yet been reached in CZA19 and DND24’s cases. But, because CZA19 and DND24 had received ‘protection findings’, CZA19 could not be removed to Poland and DND24 could not be removed to Vietnam.
Both applicants remained in immigration detention after the ‘protection findings’ were made, in order to consider other criteria for their visa applications. Both sought to challenge the lawfulness of their detention from the point at which the protection findings were made until the point at which they were ultimately granted visas and released from detention. They sought to do so in reliance upon NZYQ and Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (Lim), arguing that, from the point at which the protection findings were made, there was no real prospect of their removal from Australia becoming practicable in the reasonably foreseeable future – and hence that there was no constitutionally permissible purpose for which they could be detained.
The High Court rejected CZA19 and DND24’s challenges.
The plurality (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) noted that the key constitutional limitation identified in NZYQ – that lawful executive detention ends ‘when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future’ depends on the alien first having ‘failed to obtain permission to remain in Australia’ (CZA19 at [33]). The plurality rejected the argument that, absent other exceptional circumstances, ‘there is but one legitimate and non-punitive purpose justifying the Executive detaining an alien under statutory authority’ – ‘the removal of the alien from Australia’ (CZA19 at [38]).
Instead, as the plurality affirmed, Lim and NZYQ had recognised that there are ‘relevantly two legitimate and non-punitive purposes capable of making detention of an alien constitutionally permissible if the detention is otherwise authorised by statute’: the removal of the alien from Australia, or ‘to determine if the alien should be permitted to remain in Australia and, if so, on what conditions’ (CZA19 at [35] and [38]). The detention of an alien for the purpose of processing their application for a visa may be ‘reasonably capable of being seen as necessary’ even if there is no real prospect of their removal from Australia in the reasonably foreseeable future (CZA19 at [46]-[47]).
The plurality similarly rejected the argument that detention was not 'sufficiently tailored' to the purpose of processing the visa application, given that in NZYQ the Court had declined to re-open the construction of the relevant provisions of the Migration Act (as determined in Al-Kateb v Godwin) and given that the duty to detain an unlawful non-citizen is ‘hedged’ by other provisions, enforceable by mandamus, which are capable of bringing a person’s detention to an end – such as the duty to consider and determine a visa application ‘as soon as reasonably practicable’ (CZA19 at [48]-[59]). (For earlier criticisms of this line of reasoning, see Sangeetha Pillai and Stephen McDonald for AUSPUBLAW.)
Gordon J agreed that ‘detention for visa processing is a legitimate non-punitive purpose independent of detention for the purpose of removal’, albeit that ‘detention merely for the purpose of segregating a non-citizen from the Australian community pending the grant of a visa is not a legitimate non-punitive purpose’ (CZA19 at [75]-[76]). While her Honour accepted that CZA19 and DBD24’s detention during the relevant period ‘was for the legitimate non-punitive purpose of processing their visa applications’, her Honour found that it was not necessary to decide ‘whether the mere availability of mandamus to compel performance of the duty to decide a visa application means the detention of an unlawful non-citizen who has a pending visa application will always be lawful’ (CZA19 at [78]-[79]). While generally agreeing with Gordon J’s reasons, Steward J disagreed on this last point, finding that ‘the availability of mandamus to secure the performance of a duty to process a visa application precludes any conclusion that detention during the time when the visa application is awaiting processing can be invalid’ (CZA19 at [113] and [116]). Steward J also emphasised that an alien’s ‘rights and immunities under the law differ from those of an Australian citizen in a number of important respects’ (CZA19 at [115], quoting Falzon v Minister for Immigration and Border Protection at [39]).
In his own concurrence, Edelman J identified the only three categories of powers and duties recognised (‘so far’) as authorising detention under the Migration Act: ‘the power and duty to remove’, ‘the power to enable an application for a visa’, and ‘the power and duty to consider a valid application for a visa (where consideration of the application includes receiving, investigating, and determining the application’) (CZA19 at [86]). Like the plurality and Steward J, Edelman J accepted that the duty to detain is ‘hedged’ by enforceable duties requiring performance of the duty to process a visa application (CZA19 at [96]). And, like the other judges, Edelman J accepted that CZA19 and DND24 had been lawfully detained for the purpose of processing their visa applications (CZA19 at [108]).
CZA19 confirms that the range of reasons why a person can be detained is broader than that argued by CZA19 and DND24: a person may be validly detained for the purpose of assessing whether they can remain in Australia, not just for the purpose of removing them. But there is nothing in this clarification which derogates from the essential principle articulated by Gordon J: that segregation from the community, simple detention of a non-citizen for the sake of detention, is not a legitimate non-punitive purpose. The detention of non-citizens in order to assess their visa applications is not detention merely for the purpose of segregating a person from the community. It is to ensure ‘investigations into their identity, nationality, criminal history, security profile and health’ and for any resulting risks to be mitigated, and to prevent them from ‘absconding into the community’ before their visa application can be determined (CZA19 at [46]).
Justifying Detention: CZA19 and NZYQ in Comparative Perspective
Australia and India are both federal parliamentary democracies with common law legal systems. India’s Constituent Assembly looked to Australia, among other sources, in the framing of the Indian Constitution. But superficial similarities in our institutions of government – a bicameral Parliament, a Prime Minister and Cabinet responsible to the lower house of Parliament (known as the Lok Sabha in India) and a separation of powers – disguise some key differences in how these institutions work, with implications for how the principle in NZYQ, as explained in CZA19, can operate in India.
Under Australia’s Constitution, the judicial power of the Commonwealth is vested in the High Court and other federal courts, and (following Boilermakers) a federal entity cannot be vested with both federal judicial and executive power. The Indian Constitution, however, allows for considerably greater variation in the design and powers of institutions. The speaker of the Lok Sabha and officials in India’s federal and state governments have all been recognised as exercising ‘judicial’ powers in some instances (see e.g. Kihoto Hollohon v Zachillhu AIR 1993 SC 412 (Kihota Hollohon), Associated Cement Co Ltd v P. N. Sharma AIR 1965 SC 1595).
This partially reflects India’s distinct definition of what will be a ‘judicial’ function. In India, a body exercises ‘judicial’ powers ‘[w]here there is a lis - an affirmation by one party and denial by another - and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it’ (Kihota Hollohon). This definition of what is ‘judicial’ would include some institutions recognised in Australia as exercising ‘executive’ powers, like the Administrative Review Tribunal. But Australia’s strict policing of where a person can be detained other than through the exercise of judicial power partially reflects its strict delineation and division of powers, the powers and prerogatives of each branch of government, and this insistence that punishment (as an intrinsically judicial form of power) can only be inflicted by the judiciary.
There are other differences. As noted above, in Australia the duty to detain has been ‘hedged’ by other enforceable duties capable of bringing immigration detention to an end, such as the duty to determine a visa application within a reasonable time and duties to remove non-citizens from Australia. In India, the courts have taken a more direct approach, identifying a two-year time limit for the detention of non-citizens (Supreme Court Legal Services Committee v Union of India WP(C) 1045/2018; In re Contagion of COVID 19 Virus in Prisons Suo Moto WP(C) 1/2020). This speaks to India’s constitutional protections of fundamental rights in Part III of the Constitution, to the remarkable flexibility and creativity with which those rights have been interpreted by Indian courts and to Indian courts’ resulting close involvement in the development and application of matters that in Australia would be regarded as polycentric policy disputes outside the remit of the judiciary.
But even allowing for these differences, there are important points of continuity between the constitutional traditions of both nations. In both nations the principal basis for the deprivation of liberty is where a person has been sentenced for a criminal offence, or where they are awaiting trial or sentence – that is, as part of the exercise of judicial power. In India, article 22 of the Constitution permits preventive detention (that is, detention where a person may commit a criminal offence). But this is restricted and regulated by that clause, just as continuing detention for protective purposes is permitted in Australia in limited circumstances. In both nations, there is hence a finite and limited number of reasons why a person may be deprived of their liberty by the state. The additional Australian emphasis on which body can deprive a person of liberty reinforces this tradition but is not its only source. And India’s constitutional provisions on preventive detention identify another permitted non-punitive purpose, but do not suggest that there is an unlimited number of such purposes.
How can CZA19 inform constitutional debates in India? The non-punitive purpose of assessing a person’s right to remain can be recognised in both India and Australia. The pragmatic justifications identified by the Court for this purpose – to identify who a person is, to address risks arising from this, and to prevent their early disappearance into the public at large until these questions are answered – are as applicable in India’s constitutional and political framework as in Australia. As Steward J emphasised in concurrence, a non-citizen’s rights may differ from those of a citizen. There may therefore be purposes for detention which apply to non-citizens and which do not readily apply to citizens, such as in determining a person’s identity and background.
In India, similar notions have been used to suggest that ‘the matter of identification of a foreigner and his deportation’ should not attract the same ‘fair, just and reasonable’ procedural guarantees as would otherwise protect citizens in India (as identified and condemned by Darshana Mitra in her critique of Sarbananda Sonowal v Union of India (No 1) AIR 2005 SC 2920). But CZA19 reiterates and emphasises limits on these kinds of distinctions between citizens and non-citizens. While there are some forms of detention which principally apply to non-citizens, non-citizens are not thereby subject to some kind of state of exception; they can only be detained for a finite and known range of purposes, and only to the extent reasonably capable of being seen as necessary for that purpose.
Only a few dozen detainees stripped of their citizenship in Assam have been removed from India – because they have no right to enter or reside in any other country. They are not being detained for the purposes of determining who they are, or whether they are Indian, or if they have any right to reside in India. And the fact that only a tiny fraction of the people declared foreigners in Assam have been successfully removed from India illustrates that, for most, there is no realistic prospect of their removal. Even within the clarified limit on detention in CZA19, there is nothing in the range of permissible non-punitive purposes that would justify detention of this kind. And even allowing for India’s constitutional differences from Australia, and even where Indian courts have drawn distinctions between the rights of citizens and non-citizens, this provides no principled basis for suggesting that the Indian executive may thereby detain non-citizens simply for the sake of detention itself. The rights of non-citizens may differ from those of citizens, but they cannot justify absolute state caprice.
Conclusion
Australian constitutional and policy conversations about immigration detention do not end at our borders. In some cases, our treatment of non-citizens has informed other nations’ approaches to deterrence and removal, as with the United Kingdom’s Rwanda policy. But, as the Rajubala Das litigation illustrates, that is not the only way in which the world can look to us.
CZA19 confirms and restates Lim and NZYQ in confirming that there are two, not one, ‘legitimate and non-punitive purposes’ (CZA19 at [35]) to justify executive detention of aliens in Australia. But the power to detain ends when these two purposes are exhausted, and detention cannot be justified as an end in itself. These principles, and how Australian courts seek to constrain executive and legislative power and to limit their infringements upon liberty, can contribute to global conversations about the separation of powers and the rights of non-citizens.
Douglas McDonald-Norman is a PhD candidate at the University of New South Wales. He is very grateful to Aaron Moss and the AUSPUBLAW editors for their invaluable feedback on earlier drafts of this post. For further writing from Douglas on these topics, please see https://www.nls.ac.in/blog/indefinite-tense-detaining-non-citizens-in-india-and-australia,https://theleaflet.in/independence-day-special-2024/the-lifeless-clause-refugees-and-article-21-of-the-indian-constitution and https://www.thehindu.com/opinion/op-ed/detaining-non-citizens-and-the-rule-of-law/article69542404.ece.
Suggested citation: Douglas McDonald-Norman, ‘Beyond the Border: CZA19 Across The Indian Ocean’ (20 May 2025) <https://www.auspublaw.org/blog/2025/05/beyond-the-border-cza19-across-the-indian-ocean>