ABF17 v Commonwealth of Australia [2024] FCA 694

Federal Court of Australia

ABF17 v Commonwealth of Australia [2024] FCA 694 File number(s): VID 233 of 2024

Judgment of: HORAN J

Date of judgment: 28 June 2024

Catchwords: MIGRATION – application for order in the nature of habeas corpus – statutory duty to remove Iranian national from Australia – where applicant does not agree to his removal to Iran but willing to cooperate with removal to any other country – where Iranian authorities have a policy of not issuing travel documents to involuntary returnees – where administrative processes necessary for issue of travel documents require cooperation of the applicant – whether steps are practically available to be taken which can realistically be predicted to result in the applicant's removal to Iran in the reasonably foreseeable future – whether the applicant has capacity to cooperate with administrative processes directed to his removal to Iran – whether real prospect of the applicant's removal becoming practicable in reasonably foreseeable future – Held: that applicant's detention is validly authorised by ss 189 and 196 of Migration Act 1958 (Cth) – application dismissed CONSTITUTIONAL LAW – temporal limitation on detention under ss 189 and 196 of Migration Act 1958 (Cth) identified in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 and ASF17 v Commonwealth of Australia [2004] HCA 19 – where Iranian national does not agree to his removal to Iran – where policy of Iranian authorities not to issue travel documents to involuntary returnees – where applicant has capacity to cooperate with administrative processes directed to his removal to Iran – where steps are practically available to be taken which can realistically be predicted to result in applicant's removal to Iran in the reasonably foreseeable future – Held: that applicant's detention is for purposes of his removal from Australia and does not exceed the limitation identified in NZYQ