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.

Words and phrases – "alien", "consent", "constitutional limitation identified in NZYQ", "continuing detention", "executive detention", "habeas corpus", "Lim principle", "non-cooperation", "non-punitive purpose", "penal", "practicable", "protection finding", "punitive", "real prospect", "reasonably capable of being seen to be necessary", "reasonably foreseeable future", "refusal to cooperate", "removal from Australia".

Constitution – Ch III.

Migration Act 1958 (Cth) – ss 36, 48B, 189, 195A, 196, 197C, 198.