Page:ASF17 v Commonwealth of Australia.pdf/46

Edelman J

reasons, their Honours cannot be taken to have expressed that proposition without qualification. The proposition should be heavily qualified. A Commonwealth law that authorises or requires executive detention will only have an illegitimate, punitive purpose (in the strict sense of punishment) if an inference can be drawn that the law concerns the purposes of punishment, such as retribution or deterrence. No such inference can be drawn concerning ss 189(1) and 196(1) in the context of the Migration Act as a whole.

125 The means of detention adopted in ss 189(1) and 196(1) are also not "punitive" (in the different, loose, sense of disproportionate) in their application to aliens in the position of ASF17. In the absence of any submission suggesting any significant gap in the scheme of protection provided for in the Migration Act, it must be accepted that the detention required by ss 189(1) and 196(1) is reasonably capable of being seen as necessary for the purpose of removal of classes of aliens whose removal can occur with their assistance to a country where they have been found under the Migration Act scheme not to be in need of protection.

126 ASF17 is capable of providing the assistance required to remove him and he has been found by a delegate of the Minister not to have a genuine and wellfounded fear of persecution in Iran. Although other aspects of ASF17's claim for protection have never been validly decided, the claim by ASF17 before the primary judge proceeded as a collateral challenge only to the valid finding of the delegate of the Minister under the Migration Act. Even if success on this collateral challenge could by itself have been sufficient to justify an order for habeas corpus, ASF17's collateral challenge based on his sexuality was rejected by the primary judge by reference to the terms upon which it was brought. This Court cannot revisit the factual basis upon which it was rejected.

127 There remains instead only the possibility of executive decisions, under provisions such as s 48B or s 195A of the Migration Act, concerning whether issues arising from ASF17's bisexuality (raised and considered only on a narrow basis by the primary judge) should be reassessed under the Migration Act scheme, or whether ASF17 should continue to be detained in immigration detention pending his consent to be returned to a country where he might be executed if he were to express, privately and consensually, what has been found to be his genuine sexual identity.

128 The appeal should be dismissed with costs.