ASF17 v Commonwealth of Australia [2024] HCA 19

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

ASF17 APPELLANT

AND

COMMONWEALTH OF AUSTRALIA RESPONDENT

ASF17 v Commonwealth of Australia

[2024] HCA 19

Date of Hearing: 17 April 2024

Date of Judgment: 10 May 2024

P7/2024

ORDER

Appeal dismissed with costs.

Representation

L G De Ferrari SC with M W Guo and C J Fitzgerald for the appellant (instructed by Zarifi Lawyers)

S P Donaghue KC, Solicitor-General of the Commonwealth, with B D Kaplan and N A Wootton for the respondent (instructed by Australian Government Solicitor)

C L Lenehan SC with T M Wood and J R Murphy for AZC20, intervening (instructed by Human Rights Law Centre)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

ASF17 v Commonwealth of Australia

Constitutional law (Cth) – Judicial power of Commonwealth – Immigration detention – Continuing detention – Where appellant citizen of Iran – Where appellant arrived in Australia as unlawful non-citizen and held in immigration detention under s 189(1) of Migration Act 1958 (Cth) ("Act") – Where appellant's application for Safe Haven Enterprise Visa refused and finally determined – Where s 198(6) of Act imposed duty upon officers of Department of Home Affairs to remove appellant from Australia as soon as reasonably practicable – Where s 196(1) of Act required appellant to be kept in immigration detention until removed from Australia – Where appellant refused to cooperate in administrative processes necessary to facilitate removal of appellant to Iran – Where no country identified where appellant might be removed other than Iran – Where appellant applied for writ of habeas corpus on basis that continuing detention exceeded constitutional limitation identified in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 – Whether continuing detention of appellant exceeds constitutional limitation identified in NZYQ – Whether real prospect of removal of appellant to Iran becoming practicable in reasonably foreseeable future.