Page:ASF17 v Commonwealth of Australia.pdf/19

Gageler CJ Gordon J Steward J Gleeson J Jagot J Beech-Jones J

specifically to removal to the country from which he came". That, in a nutshell, is what ASF17 has tried and failed to do.

Conclusion

46 The statutory position of ASF17 is unambiguous. His removal from Australia is required by s 198(6) of the Act. In the absence of an extant protection finding, which would engage the operation of s 197C(3), his removal to Iran is permissible under s 198(6).

47 The litigious position of ASF17 is correspondingly uncompromising. He has not sought a writ of mandamus to compel his removal from Australia. No question has therefore arisen as to whether his removal from Australia, whether to Iran or to anywhere else, could be compelled under s 198(6) of the Act. He has not sought that the Minister exercise any personal non-compellable power under s 48B or s 195A which may result in a protection finding by reason of his claimed fear of harm in Iran based on his sexual orientation. He has sought only a writ of habeas corpus. By it, he has sought to secure his immediate release from detention in Australia. The sole question which has arisen, and on which issue has been joined at the hearing and on appeal, is whether ASF17's continuing detention in Australia under ss 189(1) and 196(1) for the purpose of removal under s 198(6) exceeds the constitutional limitation on the valid application of ss 189(1) and 196(1) identified in NZYQ.

48 ASF17 could be removed to Iran if he cooperated in the process of obtaining the requisite travel documents from Iranian authorities. He has decided not to cooperate. He has the capacity to change his mind. He chooses not to do so.

49 On those undisturbed findings of primary fact, the evaluative characterisation of the primary judge, that there is a real prospect of removal of ASF17 from Australia to Iran becoming practicable in the reasonably foreseeable future, such that the constitutional limitation identified in NZYQ has not been exceeded, is correct. ASF17's continuing detention under ss 189(1) and 196(1) of the Act does not exceed the temporal limitation on the valid application of those provisions imposed by Ch III of the Constitution.

50 The appeal will be dismissed with costs.