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 CATCHWORDS

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.