Page:ASF17 v Commonwealth of Australia.pdf/5

 1 GAGELER CJ, GORDON, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ. NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs held that the continuing detention under ss 189(1) and 196(1) of the Migration Act 1958 (Cth) ("the Act") of an alien required to be removed from Australia under s 198(1) or s 198(6) of the Act exceeds the temporal limitation on the valid application of those provisions imposed by Ch III of the Constitution if and for so long as there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future. NZYQ further held that where an alien detainee who seeks a writ of habeas corpus establishes reason to suppose that their continuing detention exceeds the constitutional limitation, the detainer bears the legal burden of establishing that the constitutional limitation is not exceeded.

2 The application of those principles in NZYQ to hold that ss 189(1) and 196(1) of the Act did not validly apply to authorise the continuing detention of the alien detainee in that case was noted to have been in a factual context in which the detainee had cooperated with officers in the undertaking of administrative processes directed to facilitating his removal from Australia.

3 This appeal concerns the application of those principles to a case in which an alien detainee who claims that their continuing detention exceeds the constitutional limitation identified in NZYQ has refused to cooperate in the undertaking of administrative processes necessary to facilitate their removal from Australia.

Factual background and procedural history

4 The appellant, ASF17, is a citizen of Iran. He arrived in Australia as an unlawful non-citizen at the age of 27 in 2013. Except for a short period during which he held a bridging visa between 2013 and 2014, he has been held in immigration detention continuously since his arrival.

5 While in immigration detention, ASF17 in 2015 made an application for a Safe Haven Enterprise Visa ("SHEV"). The application was refused by a delegate