Key Brief From Additional Estimates Hearing - NZYQ Related Litigation, Dated February 2025 ​

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This key brief to Additional Estimates discusses litigation trends following the High Court's NZYQ [2023] HCA 37 decision, which established that unlawful non-citizen detention for removal becomes unconstitutional when no real prospect of practicable removal exists within the reasonably foreseeable future. The Department identifies three litigation categories: cases involving visa application determinations where applicants claim NZYQ limits are reached due to indicative protection findings (including reserved High Court matters CZA19 and DBD24 heard 14 November 2024); cases claiming no real prospect of removal practicability (one active habeas case as of 28 January 2025); and cases involving non-refoulement issues (one ongoing proceeding, GKX18). The Department defends detention during visa determination as legitimate non-punitive purpose, though this remains contested. Two proceedings with pending visa application decisions existed as of 28