ASF17 v Commonwealth of Australia [2024] FCA 7

Federal Court of Australia

ASF17 v Commonwealth of Australia [2024] FCA 7 File number: WAD 289 of 2023

Judgment of: COLVIN J

Date of judgment: 11 January 2024

Catchwords: MIGRATION - application for writ of habeas corpus and declaratory relief regarding alleged unlawfulness of applicant's detention - where applicant has been in immigration detention for almost 10 years - where applicant is citizen of Iran and refuses to cooperate with his removal to Iran - where applicant claims to be bisexual - where applicant claims to have converted to Christianity - where applicant claims to fear harm due to ethnicity and opposition to the government - whether determination of a real prospect of a detainee's removal from Australia becoming practicable in the reasonably foreseeable future involves consideration of reasons for detainee's voluntary noncooperation - whether relevant that a detainee's noncooperation is due to a genuine subjective fear of harm - held evaluation of prospects of removal involves consideration of outcomes if the detainee assists in their removal irrespective of the reason for any refusal of the detainee to assist - application dismissed CONSTITUTIONAL LAW - consideration of constitutional limit on executive detention as held in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 - consideration of application of NZYQ where failure by detainee to cooperate - where facts are distinguishable from AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497 - where constitutional limit per NZYQ not correctly confined by principle held in AZC20 - consideration of relevance of authorities prior to NZYQ - consideration of constitutional limit where Migration Act 1958 (Cth) provides for ability to seek protection and constitutional limit based upon purpose of removal not being able to be effectuated - held evaluation of prospect of applicant's removal from Australia in the foreseeable future depends upon assessment of purpose of detention taking account of his ability to cooperate regardless of demonstrated unwillingness