2 | Background – Immigration detention in Australia Immigration detention is mandatory in Australia for all unlawful non-citizens.5 Once detained, an unlawful non-citizen must remain in detention until either granted a visa or removed from Australia.6 However, following the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs7, unlawful non-citizens cannot continue to be kept in immigration detention for the purpose of their removal from Australia once there is no real prospect of their removal becoming practicable in the reasonably foreseeable future.8 The detention of an unlawful non-citizen is not based on an individual assessment of the need for detention, or an assessment as to whether the individual concerned poses an unacceptable risk to the community. The Commission has previously recommended that closed immigration detention should only be used in circumstances where it is strictly necessary to manage unacceptable risks to the community.9 Unlawful non-citizens subject to immigration detention are usually detained in purpose-built immigration detention centres, with seven being in operation as of April 2024.10 In some circumstances, individuals can be released from immigration detention centres into alternative, community-based arrangements. This may include release on short-term visas (such as a Bridging visa E) or a residence determination, where the Minister determines that a person may reside in a specified place rather than being held in a detention centre.11 Both of these options involve the Minister exercising a legal power that is personal, noncompellable, and discretionary. The Australian Government also operates an offshore processing regime, which involves transferring asylum seekers to third countries for their claims to be processed.12 Regional processing arrangements were in place in Papua New Guinea until the end of 2021 and continue to operate in Nauru. The Commission has consistently expressed concerns about Australia’s offshore processing arrangements and emphasised that transferring asylum seekers to third countries does not release Australia from its obligations under international human rights law.13 Yongah Hill Immigration Detention Centre Inspection Report • 2024 • 11