Page:ASF17 v Commonwealth of Australia.pdf/6

Gageler CJ Gordon J Steward J Gleeson J Jagot J Beech-Jones J

of the Minister for Immigration and Border Protection in 2017. An application for judicial review of the decision of the delegate was dismissed by the Federal Circuit Court of Australia in 2017 in a decision which was upheld on appeal to the Federal Court of Australia in 2018.

6 The final determination of his application for a SHEV which occurred upon the dismissal of the appeal in 2018 engaged the duty imposed on officers of the Department of Home Affairs ("the Department") by s 198(6) of the Act to remove ASF17 from Australia as soon as reasonably practicable. Unlike the plaintiff in NZYQ, ASF17 has never formally requested to be removed from Australia so as to engage the other duty to remove imposed on officers of the Department by s 198(1) of the Act.

7 For the purpose of facilitating removal of ASF17 from Australia, officers of the Department conducted regular interviews with him from 2018. Throughout those interviews, he consistently told officers that he would not voluntarily return to Iran. He consistently refused to sign a request for removal or to engage with Iranian authorities in planning for his removal. He repeatedly told officers that he would agree to be sent to any country other than Iran. However, he did not suggest that there was any country to which he might be removed other than Iran.

8 Iranian citizens cannot enter Iran from Australia without a travel document issued by Iranian authorities and Iranian authorities have a longstanding policy of not issuing travel documents to involuntary returnees.

9 The Department has a policy of not removing anyone to a country in respect of which they have no right of residency or long-term stay ("the third country removal policy"). Considerations underpinning the third country removal policy include the potential for diplomatic controversy were someone to be removed to a country which had not agreed to accept them and the lack of any basis for generally considering that a country would agree to accept anyone who has no right of residency or long-term stay in that country.