Where appellant refused to cooperate in administrative processes necessary to facilitate removal of appellant to Iran, did continuing detention of appellant exceed constitutional limitation identified in NZYQ?

ASF17 v Commonwealth of Australia [2024] HCA 19 (10 May 2024)

Intro:-

This is an appeal from the Federal Court of Australia

Facts:-

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.

While in immigration detention, ASF17 in 2015 made an application for a Safe Haven Enterprise Visa ("SHEV"). The application was refused by a delegate 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[4] in a decision which was upheld on appeal to the Federal Court of Australia in 2018.

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.

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.

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.

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").

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".

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 that he is bisexual and that he feared being harmed in Iran because of his bisexuality. 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 it.
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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.

The primary judge dismissed the application. 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).

Issue:-

Did continuing detention of appellant exceed constitutional limitation identified in NZYQ where appellant refused to cooperate in the undertaking of administrative processes necessary to facilitate his removal from Australia?

Consideration:-

The constitutional limitation unanimously expressed in NZYQ in terms that the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia comes to an end when "there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future" was unanimously explained in NZYQ to follow directly from the principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs and to be an appropriate expression of the Lim principle in the context of the Act.

That explanation of the constitutional limitation was given in NZYQ against the background of the Lim principle having been unanimously explained to mean that "a Commonwealth statute which authorises executive detention must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved" and against the background of the application of the Lim principle having been further explained by six members of the Court to be "ultimately directed to a single question of characterisation", though one which requires an assessment of both means and ends.

The short point is that, conformably with the Lim principle, continuing detention for a non-punitive purpose that is occurring because of a voluntary decision of the detainee cannot be characterised as penal or punitive. The non‑punitive statutory purpose of removing an alien detainee from Australia under s 198(1) or s 198(6) of the Act remains a non-punitive purpose that is reasonably capable of being achieved if and for so long as removal could be achieved in the reasonably foreseeable future were the detainee to decide to cooperate in the undertaking of administrative processes necessary to facilitate that removal.

Conclusion:-

The statutory position of ASF17 is unambiguous. His removal from Australia is required by s 198(6) of the Act. In the absence of an extant protection finding, which would engage the operation of s 197C(3), his removal to Iran is permissible under s 198(6).

Appeal is dismissed with costs.