Page:ASF17 v Commonwealth of Australia.pdf/30

Edelman J

practicable) meant that there was no real prospect of his removal to Iran becoming practicable in the reasonably foreseeable future. Ergo, it was said, applying the logic of six members of this Court in NZYQ, there was no legitimate purpose to justify the detention of ASF17.

79 The submission of ASF17 was refined in the approach proposed by the intervener, AZC20, which ASF17 also appeared to adopt as an alternative. AZC20 sought leave to intervene in this appeal to make a submission which developed the reasoning in the decision of Kennett J in AZC20's application for judicial review. Senior counsel for AZC20 submitted that an intransigent refusal to be removed which was not based upon any "good reason", such as a professed fear of persecution that was not genuinely held, may invite the inference to be drawn that the person is refusing to consent in order "to engineer their own release into the community". It was submitted that if such an inference is drawn then the further inference might be drawn that the person will abandon their refusal "if the possibility of their release into the community has dissipated".

80 As a consequence of the finding of the primary judge that ASF17 did not have a genuinely held subjective fear of persecution, ASF17 relied upon a ground of appeal challenging that factual finding. By the conclusion of submissions in reply, ASF17's submission was, in effect, that the primary judge should have found that ASF17 had a genuine and (if necessary) well-founded fear of persecution. The effect of the submission was that ASF17's continued detention was not reasonably capable of being seen as necessary for the purpose of removal from Australia in circumstances in which he could only be removed to Iran with his consent and assistance and his refusal to consent was based upon a well-founded fear of persecution in Iran.

Allowing the intervention by AZC20 in this appeal

81 On 23 January 2024, ASF17 lodged a notice of appeal to the Full Court of the Federal Court of Australia from the decision of the primary judge. On 19 January 2024, the Commonwealth lodged a notice of appeal from the decision of Kennett J granting habeas corpus to AZC20. On 25 January 2024, the Federal Court wrote to the parties to both appeals saying that the Court was considering listing the appeals together for a joint hearing of the appeals. On 1 February 2024, the Commonwealth lodged a notice of discontinuance of its appeal from the judgment of Kennett J, which had the effect of an order dismissing that appeal.