Page:ASF17 v Commonwealth of Australia.pdf/42

Edelman J

Section 197AB permits the Minister to make a residence determination, requiring a specified person or persons to reside at a specific place rather than being detained in immigration detention, if the Minister thinks it is in the public interest to do so. The effect of s 195A, and to a lesser extent (because it may be subject to conditions) the power to make a residence determination in s 197AB, is to give the Minister a non-compellable power to release an alien from immigration detention.

114 Neither ASF17 nor AZC20 submitted that the safety valve provided by provisions such as ss 48B, 195A and 197AB was insufficient to make the detention required by ss 189(1) and 196(1) reasonably capable of being seen as necessary for the removal of aliens who might have failed to raise some material fact or who had not received the benefit of a proper assessment of all grounds for protection. Instead, ASF17 brought a "collateral challenge" to the valid administrative finding that he had no well-founded fear of persecution.

115 Whether or not a collateral challenge to findings of fact is generally permissible in an application for habeas corpus, there may be significant obstacles to such a collateral challenge where the habeas corpus application is based upon the constitutional limit of laws concerning the detention of aliens and specifically the requirement that those laws be proportionate. The proper question is whether the application of the law imposing the detention is reasonably capable of being seen as necessary for the purpose of removal of classes of aliens from Australia. That ultimate question is not whether the imposition of detention is reasonably capable of being seen as necessary for the purpose of removal of a particular individual alien from Australia.

116 A collateral challenge might indicate gaps in the Migration Act scheme which may be relevant to an assessment of the proportionality of the legislative means of detention by which the end of removal of classes of aliens from Australia is generally achieved. But there may be difficulties in accepting that a successful collateral challenge to an administrative factual finding concerning a particular individual alien, by itself and without more, demonstrates the disproportionate nature, and invalidity, of the means of detention adopted by the law generally. Ultimately, it is unnecessary to address this issue in the absence of any submissions on it and in light of the conclusion that I reach on ASF17's collateral challenge to the administrative finding.