High Court. The Tribunal found that both claimants were owed protection, and remitted the matters to the Department. Then, without deciding whether to grant them protection visas, the Department granted them other visas. As per NZYQ, removal from Australia was no longer a legitimate non-punitive purpose to keep them detained. Was the processing of their protection visa applications nevertheless a legitimate non-punitive purpose to keep them detained?
Some of the questions to the High Court (HCA) were as follows:
Question 1: Can the Commonwealth detain (and keep detained) a non-citizen for only one of the following three legitimate non-punitive purposes: "the purpose of removal from Australia; the purpose of receiving, investigating and determining an application for a visa permitting the alien to enter and remain in Australia; or, in a case such as the present, the purpose of determining whether to permit a valid application for a visa"?
Question 2: Does the aliens power in s 51(xix) of the Constitution empower the Commonwealth Parliament to make laws with respect to each of: "prohibiting aliens from entering Australia; determining if aliens should be permitted to remain in Australia once they have entered and, if so, on what conditions; and removing aliens from Australia"?
Question 3: If the answer to Question 2 is 'yes', can it be said that "detention of an alien for either of the latter two purposes may infringe on the judicial power of the Commonwealth, vested exclusively in courts by Ch III of the Constitution, if and when the detention is no longer "reasonably capable of being seen as necessary" because, from that point, the continued detention of the alien may amount to punishment, which is an exclusively judicial power"? In other words, can it be said that "continued detention of an alien for the purpose of visa processing does not cease to be "reasonably capable of being seen as necessary" merely because, at one or more times throughout the period of detention or for the duration of the period of detention, there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future"?
Question 4: If the answer to Question 3 is 'yes', and if detention is no longer reasonably capable of being seen as necessary by reason of delay in processing the protection visa applications, is Mandamus the appropriate remedy?
Question 5: Can it be said that, for the removal of an alien from Australia under s 198(1) or s 198(6) of the Act to be practicable, removal of that alien to that country must be permissible under the Act, in the absence of which "there is no scope for the question of reasonable practicability of removal to arise and therefore no scope for the constitutional limitation determined in NZYQ to be engaged"?
The HCA answered those questions as follows: