ASF17 v. Commonwealth of Australia

Catchwords

Constitutional law – Judicial power of Commonwealth – Immigration detention – Where first respondent Iranian citizen currently detained under ss 189(1) and 196(1) of Migration Act 1958 (Cth) ("Act") as unlawful non-citizen – Where first respondent arrived in Australia on 13 July 2013 and in immigration detention since 10 February 2014 – Where following this Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 ("NZYQ"), first respondent filed application in Federal Court for habeas corpus and declaratory relief to effect his ongoing detention has been and is unlawful – Where second respondent argued first respondent could be removed to Iran with their cooperation – Where first respondent argued they had good reasons for fearing harm in Iran and thus for not cooperating – Where primary judge did not accept first respondent's claimed bases for fearing harm if returned to Iran – Where primary judge held constitutional limit in NZYQ should be determined on hypothetical basis first respondent is cooperating – Where primary judge's finding inconsistent with aspects of reasoning in AZC20 v Secretary Department of Home Affairs (No 2) [2023] FCA 1497 – Whether first respondent's ongoing detention lawful – Whether limit on constitutionally permissible duration of immigration detention identified in NZYQ applies in relation to unlawful non-citizens detained under ss 189(1) and 196(1), who are not cooperative with efforts to remove them and, in doing so, prevent their own removal pursuant to s 198.