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

10 The consistent refusal of ASF17 to cooperate in facilitating his removal from Australia to Iran combined with his failure to identify any third country in which he might have a right of residency or long-term stay therefore resulted in an impasse. His position was described in a record of the Department in 2022 as "intractable".

11 In 2023, barely a week after the pronouncement of the orders in NZYQ, ASF17 applied to the Federal Court of Australia for a writ of habeas corpus on the basis that his continuing detention exceeded the constitutional limitation identified in those orders. In support of that application, ASF17 filed affidavits deposing to his reasons for refusing to return to Iran. Those reasons included that he is bisexual and that he feared being harmed in Iran because of his bisexuality. He gave an account of having been caught by his wife in bed with a man in Iran and of his wife having reported the incident to police who had attempted to arrest him. He had not claimed to fear being harmed in Iran because of his sexual orientation in his application for a SHEV in 2015 and the delegate of the Minister for Immigration and Border Protection had accordingly not considered whether he had a well-founded fear of persecution because of his sexual orientation in refusing the application in 2017.

12 Responding to the application for a writ of habeas corpus, the Commonwealth accepted the burden of establishing that the continuing detention of ASF17 did not exceed the constitutional limitation identified in NZYQ. The Commonwealth sought to discharge that burden by establishing that ASF17 could be removed to Iran were he to cooperate in returning voluntarily to Iran.

13 Having been given appropriate expedition, the application for a writ of habeas corpus was heard by the primary judge, Colvin J, in a three-day hearing which involved extensive cross-examination of ASF17. His Honour dismissed the application for reasons set out in a reserved judgment delivered three weeks later.

14 ASF17 appealed from the decision of the primary judge to the Full Court of the Federal Court of Australia under s 24 of the Federal Court of Australia Act 1976 (Cth). The appeal was removed into this Court on the application of the Attorney-General of the Commonwealth under s 40(1) of the Judiciary Act 1903 (Cth).