Page:ASF17 v Commonwealth of Australia.pdf/34

Edelman J

his place of birth, family location and parentage. The plaintiff's argument was blunt. The defendants were said to bear the onus of proving issues of identity and the plaintiff's place of birth and that there was a real prospect that the plaintiff would be removed from Australia within a reasonable time.

92 This Court held that although the onus was upon the defendants to justify the plaintiff's detention in his claim for habeas corpus, the plaintiff carried an initial evidential burden to establish that the detention had ceased to be lawful because it was no longer reasonably foreseeable that he might be removed from Australia. The Court declined to draw the inference invited by the plaintiff that there was "no real prospect or likelihood that [he] will be removed from Australia within the reasonably foreseeable future".

93 In the joint reasons of Kiefel CJ, Keane, Nettle and Edelman JJ in Plaintiff M47/2018, it was explained that there was "[n]o good reason" for the plaintiff's posture (of, at best, "non-cooperation"), which involved "the deployment of falsehoods". The plaintiff's inconsistent accounts were not suggested to be due to any medical condition or psychiatric illness. The plaintiff's accounts were "not explicable by genuine uncertainty or ignorance". Instead, the plaintiff sought to take advantage of his own wrongful conduct. The plaintiff "deliberately failed to assist … when … he does not appear to have anything legitimate to lose by cooperating". It was concluded that it could not "be assumed that it is beyond [the plaintiff's] power to provide further information concerning his identity that may shed positive light on his prospects of removal".