Page:ASF17 v Commonwealth of Australia.pdf/27

Edelman J

measures which are "disproportionate to [Parliament's] legitimate purpose". Hence, in Lim it was said that a law that authorised detention of aliens for the purpose of removal would be "of a punitive nature" if the means authorised ("the detention which [the two] sections require and authorize") are not "limited to what is reasonably capable of being seen as necessary for the purpose[] of [removal]".

71 Consistently with that orthodox reasoning in Lim, in NZYQ I held that Parliament's purpose of removal of classes of aliens from Australia in ss 189(1) and 196(1) of the Migration Act, although legitimate, involved a means that was "punitive" (disproportionate) to the extent that it required the detention of aliens for whom there was no real prospect of removal becoming practicable in the reasonably foreseeable future. Detention in such circumstances was not reasonably capable of being seen as necessary for the legitimate purpose of removal of classes of aliens from Australia. The operation of ss 189(1) and 196(1) was required to be disapplied to that extent for persons in the position of NZYQ.

This appeal and the intervention of AZC20

The reasons of the primary judges in AZC20 and in this case

72 As explained at the outset of these reasons, prior to the decision of the primary judge, in the different matter of AZC20 v Secretary, Department of Home Affairs [No 2] ("AZC20") a different primary judge, Kennett J, granted an order for habeas corpus based upon the reasoning in NZYQ. In AZC20, the Commonwealth respondents proceeded on the basis that the only country to which there could be a real prospect of returning AZC20 was Iran but that return to Iran would depend upon the issue of a travel document and Iran would not issue a travel document without AZC20's consent to removal to Iran. Kennett J properly and faithfully applied the principle in NZYQ and concluded that the Commonwealth respondents had not satisfied their onus of proving that there was a real prospect of removal of AZC20 from Australia becoming practicable in the reasonably foreseeable future.