nzyq decision and impact

On 29 November 2023, the High Court of Australia ruled that it is unlawful and unconstitutional for the Australian government to detain people indefinitely in immigration detention. This Explainer breaks down the case of NZYQ and the implications of the High Court decision.

High Court ruling

The legal challenge originated from a stateless Rohingya man, referred to by the pseudonym NZYQ. NZYQ was born in Myanmar and travelled to Australia by boat in 2012. In 2014, NZYQ was granted a bridging visa. In 2016, he pleaded guilty and was imprisoned for a sexual offence against a child. After serving his sentence, NZYQ was detained in immigration detention. The government could not deport NZYQ to Myanmar as he had been found to be a refugee, and therefore he was protected by the principle of non-refoulement. He subsequently applied to the High Court of Australia to challenge his detention. 

The High Court unanimously found that a person must be released from detention when there is no real prospect of them being deported in the foreseeable future. In the case of NZYQ, his detention was found to be punitive, and should usually only be ordered by a court, rather than the Executive (i.e., the Minister). This is an important element of the Separation of Powers doctrine.

The judgment applies to people whose visas have been refused or cancelled, but for whom there is no real prospect of them being removed in the foreseeable future. This may be because the person is stateless, owed protection, or cannot be removed due to a practical barrier (i.e., their home country will not cooperate with their removal).

Impact of the NZYQ Decision

The decision resulted in the immediate release of around 140 people from held immigration detention facilities, collectively referred to as the NZYQ Cohort. As of September 2025, 358 people have been released from detention as part of the NZYQ Cohort.

Immediately following the High Court judgment, the parliament rushed through legislation to impose strict conditions on the released detainees. The then Minister for Home Affairs, Clare O’Neil, said that the government would move to implement “a tough preventative detention regime”. The legislation required released detainees to observe strict curfews and imposed ankle bracelets monitoring movement. This legislation was subsequently challenged in the High Court and found invalid because the measures constitute punishment.

The government continued to seek avenues to remove the people belonging to the NZYQ cohort. In November 2024, the parliament passed new laws which would allow the government to deport people to third countries that are not their country of origin (deportation laws). In effect, the deportation laws authorise the government to make agreements with, and pay, any country which would accept the people that Australia wants to remove. The Refugee Council of Australia expressed concern regarding the lack of safeguards that prevent the third country from detaining people indefinitely or returning them to persecution. 

In February 2025, the government announced that it was entering into a new arrangement with Nauru to resettle members of the NZYQ cohort. On 29 August 2025, the government signed a Memorandum of Understanding with Nauru for approximately 280 people from the NZYQ Cohort to be resettled to Nauru. It is reported that they will be granted 30-year visas with no clear pathway to citizenship and no travel documents. The government paid $408 million upfront to Nauru, with an annual payment of $70 million over thirty years, forecast to cost Australia a total of $2.5 billion. The deal has been widely condemned by civil society organisations and refugee law experts, citing the harmful experiences of asylum seekers Australia has previously sent offshore to Nauru (read our Explainer on the regional processing arrangement with Nauru) and the major financial implications of the deal. Local Nauruan people have also expressed concern about the NZYQ cohort being resettled in Nauru, where the local population face high unemployment and frequent food shortages. Nauru may not have the capacity to manage the needs of the group, particularly in terms of medical facilities and housing.

Also in August, the parliament passed further laws which removed the government’s duty to give a person notice, and an opportunity to respond, when deciding to deport them to a third country. The Minister for Home Affairs, Tony Burke, described that the principles of “procedural fairness” needed to be suspended in some cases because those provisions “are being used by noncitizens to delay and frustrate their removal”. The Human Rights Law Centre argued that the legislation is “yet another step in the creation of a parallel legal system that subjects migrants and refugees to harsher treatment, purely on the basis of visa status”.

The consequences of the NZYQ Decision and the ensuing legislation are far-reaching for the individuals directly impacted, now facing deportation to Nauru, as well as for the Nauruan population, and for the fulfilment of Australia’s international human rights obligations.

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Last updated 28 October 2025