CRS20 v Secretary, Department of Home Affairs [2024] FCA 619

Federal Court of Australia

CRS20 v Secretary, Department of Home Affairs [2024] FCA 619 File number: VID 123 of 2024

Judgment of: WHEELAHAN J

Date of judgment: 12 June 2024

Catchwords: CONSTITUTIONAL LAW — application for writ of habeas corpus – consideration of the constitutional and statutory limit on executive detention established in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 – where the applicant is in immigration detention – where the applicant has requested removal from Australia – where the case was initially argued on the basis that s 198(1) of the Migration Act 1958 (Cth) applied to the applicant, thereby requiring his removal from Australia – where Iran and Iraq were identified as countries to which the applicant could be removed – whether there is a real prospect of the removal of the applicant to Iran or Iraq becoming practicable in the reasonably foreseeable future – where the respondents conceded that the applicant had discharged an evidentiary burden to put the lawfulness of his detention in issue – where the respondents bore the legal onus to prove that the detention of the applicant was authorised by law – there is no real prospect of the removal of the applicant to Iran becoming practicable in the reasonably foreseeable future – there is a real prospect of the removal of the applicant to Iraq becoming practicable in the reasonably foreseeable future. MIGRATION — construction of ss 198 and 198AD of the Migration Act – where s 198(11) provides that s 198 does not apply in circumstances where s 198AD applies – where s 198AD(2) requires persons to whom it applies to be taken to a regional processing country as soon as reasonably practicable – whether s 198AD applies to an unauthorised maritime arrival in whose favour the Minister has made a determination under s 46A(2) – decision of Rangiah J in AZC20 v Minister for Home Affairs [2021] FCA 1234 considered – decision of the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52; 290 FCR 149 considered – where the High Court overruled the judgment of the Full Court on the basis that it lacked jurisdiction – Rangiah J's decision is to be followed unless it is plainly wrong – Rangiah J's decision is not plainly wrong – s 198AD applies to the applicant – there was no evidence concerning the prospects of taking the applicant to a regional processing country, as is required by s 198AD(2) – the respondents' legal onus to justify the detention of the applicant is not discharged – order that the applicant be released from detention made.