AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497

FEDERAL COURT OF AUSTRALIA

AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497 File number: VID 695 of 2021

Judgment of: KENNETT J

Date of judgment: 30 November 2023

Catchwords: MIGRATION – Application for writ of habeas corpus – where applicant Iranian national unwilling to return to country of nationality and unable to be removed to any other country – whether ss 189 and 196 of Migration Act 1958 (Cth) (Act) validity authorise detention of applicant – whether real prospect of removal of applicant from Australia becoming practicable in reasonably foreseeable future – consideration of relevance of applicant's non-cooperation MIGRATION – Where applicant refused protection visa – where departmental officer holding delegation prepared assessment document with findings that applicant at risk of persecution if returned to Iran – findings not included in final decision – whether assessment document a "protection finding" for purposes of s 197C of Act MIGRATION – Consideration of meaning of requirement in s 198 to remove "as soon as reasonably practicable" – whether removal reasonably practicable where applicant at risk of suicide and self-harm

Legislation: Constitution ch III Acts Interpretation Act 1901 (Cth) s 15A Aviation Transport Security Regulations 2005 (Cth) reg 4.87 Migration Act 1958 (Cth) ss 3A, 5, 5H, 13, 14, 36, 36A, 46A, 65, 189, 196, 197C 198, 198AD, 474 Convention Against Torture and other Cruel and Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 3 Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 33 Protocol Relating to the Status of Refugees, opened for signature 16 December 1966, 606 UNTS 267 (entered into force 4 October 1967)