Page:ASF17 v Commonwealth of Australia.pdf/21

Edelman J

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs ("NZYQ"). In that case, six members of this Court held that if there is no real prospect of a person being removed from Australia in the reasonably foreseeable future then the existence of the legitimate purpose of the Commonwealth Parliament to remove certain classes of aliens from Australia would be "refute[d]" in respect of that person.

55 ASF17 failed in his application for habeas corpus. But AZC20 succeeded. ASF17 appealed to the Full Court of the Federal Court in his case. The Commonwealth appealed to the Full Court in AZC20's case. ASF17's appeal to the Full Court was removed into this Court. And although the Commonwealth discontinued AZC20's appeal, AZC20 was granted leave to intervene in this proceeding in the particular circumstances in which his liberty could be indirectly affected by the reasoning of this Court in ASF17's case.

56 In this Court, ASF17 argued that it was an error for the primary judge to conclude that because ASF17 was capable of agreeing to be returned to Iran, there was a real prospect that he would be removed in the reasonably foreseeable future. His reliance upon the reasoning of this Court in NZYQ invited consideration of whether there can be a legitimate purpose to remove him from Australia where he claims that his refusal to consent to removal: (i) will not change; (ii) is genuine; and, if it be legally relevant, (iii) is reasonable (with the expression "good reasons" being used by ASF17 to cover (ii) or, if necessary, (iii)). As ASF17 said of the force of his conviction to prefer a decade in immigration detention over return to Iran: "who will leave their family and prefer the prison? Who can do that?"

57 Although the strict logic of the approach of six members of this Court in NZYQ was said by ASF17 to require that his appeal be allowed, I do not consider that NZYQ clearly established a precedent, or was part of any stream of authority, to the effect that one of the legitimate legislative purposes of ss 189(1) and 196(1) of the Migration Act 1958 (Cth) (to remove classes of aliens from Australia) becomes illegitimate, or will be refuted, merely because in the application of those provisions there is no real prospect that removal of a small cohort of aliens will be practicable in the reasonably foreseeable future. I did not join in that part of the