Federal Court of Australia

ASF17 v Commonwealth of Australia [2024] FCA 7

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    Within 10 days, any party seeking an order for costs do file and serve submissions of no more than three pages specifying the terms of the order sought and the reasons why it is submitted that the order should be made together with any necessary affidavit in support.

3.    Within 10 days of any submissions being filed in accordance with order 2, the other party may file and serve submissions of no more than three pages in answer together with any necessary affidavit in response.

4.    Subject to further order, any question of costs shall be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    The applicant is a citizen of Iran. He has been held in immigration detention for almost 10 years. For a number of those years, he sought a protection visa that would afford him permission to remain in Australia. He exhausted those avenues in August 2018. Since then, the applicant has been a person in respect of whom an officer of the department of the responsible Minister has had a statutory duty under s 198 of the Migration Act 1958 (Cth) to effect his removal from Australia 'as soon as reasonably practicable'. The Commonwealth maintains that the applicant's ongoing detention has been for the purpose of performing that duty in circumstances where he has been refused permission to remain in Australia. The applicant claims that his ongoing detention exceeds the constitutionally valid operation of the law authorising his detention. He seeks the issue of a writ of habeas corpus and declaratory relief to the effect that his ongoing detention has been and is unlawful.

2    A Commonwealth statute which authorises executive detention must be for a purpose that is not punitive and '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': CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [374]. Relevantly for present purposes, executive detention is constitutionally legitimate for the purpose of considering whether to grant permission to the detained person to remain in Australia and for the purpose of deporting or removing them if permission is not granted: Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 33.

3    The provisions of the Migration Act which authorise the detention of non-citizens who do not have permission to remain in Australia do not have valid application to a non-citizen in respect of whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future. Therefore, the constitutionally permissible period of executive detention of an alien under the statutory scheme in the Migration Act comes to an end 'when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future': NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 at [55].

4    Further, where a person discharges an initial evidentiary burden of establishing that there is reason to suppose that their detention is unlawful, the burden shifts to the Commonwealth to demonstrate that the detention is lawful: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602 at [53]-[60] (Allsop CJ), [273] (Mortimer J); and AKW22 v Commonwealth of Australia [2023] FCAFC 71; (2023) 297 FCR 650 at [10]-[20] (Rares, O'Sullivan and Feutrill JJ). The Commonwealth accepts that, having regard to the recent decision in NZYQ the applicant has put in issue 'in one relatively narrow respect' whether his detention is lawful by adducing evidence to the effect that the applicant cannot be removed to Iran because he refuses to meet with Iranian authorities for the purpose of procuring travel documents to facilitate his removal. Therefore, as to that claim, the burden is upon the Commonwealth to show that in the circumstances pertaining to the applicant his detention has not continued beyond the constitutional limit. Significantly, the Commonwealth's acceptance that the burden has shifted does not extend to the alleged subjective reasons of the applicant for that refusal (a matter to which it will be necessary to return when making findings as to certain aspects of the case).

5    No evidence has been adduced by the applicant to demonstrate some other basis upon which ongoing detention may be unlawful. In particular, there is no reason to question whether an officer knows or reasonably suspects that the applicant is 'an unlawful non-citizen' for the purposes of s 189(1). In Australian constitutional terms, he is an alien who is being detained in circumstances where the only valid reason for his ongoing detention is for the purpose of arranging his removal from Australia.

6    By reason of the position in relation to the onus, the Commonwealth's case at the hearing was presented first with the applicant responding.

The principal contentions for the Commonwealth

7    The Commonwealth does not seek to demonstrate that there is any place other than Iran where there is any real prospect that the applicant may be removed in the foreseeable future. Nor does it claim that there is any practical prospect of the applicant's removal to Iran without his cooperation. Nor does it seek to establish that there is a real prospect that at some time in the reasonably foreseeable future the applicant will change his mind and will agree to meet with Iranian authorities and otherwise cooperate in arrangements to obtain travel documents for his removal to Iran.

8    Rather, the Commonwealth says that failure by the applicant to cooperate in arrangements for his removal to Iran means that the constitutionally permissible period of executive detention for the purpose of his removal from Australia has not come to an end. In that respect, the Commonwealth's answer to the applicant's claim is a legal one. It contends that where a detainee is shown to be failing to cooperate as to matters that may assist in their removal then it remains the case, for the purposes of the constitutional limit on their detention, that the prospect of the detainee's removal may become practicable in the foreseeable future. This is because, on the Commonwealth's case, whether there is a practical prospect of removal is a matter to be adjudged on the basis that the detainee is cooperating (at least in circumstances where the detainee is mentally capable of cooperation). Put another way, for the purposes of the constitutional limit on the duration of lawful detention, the prospect of removal in the reasonably foreseeable future is a prospect that brings to account what may occur with the cooperation of the detainee (irrespective of whether there is any demonstrated possibility of that cooperation in the future).

9    Accordingly, the Commonwealth says that the evaluation of the prospect of removal of the applicant in the reasonably foreseeable future in order to determine whether the purpose of his ongoing detention is constitutionally legitimate does not take account of delay by reason of deliberate failure by the applicant to cooperate in his removal, whatever may be the reasons for his non-cooperation.

10    The Commonwealth says that, in circumstances where there is no evidence that the applicant might be removed to another country, evaluation of the reality of the prospects of his removal from Australia in the foreseeable future depends upon assessing the prospects of his removal to Iran taking account of his ability or capacity to cooperate (even though he has demonstrated an unwillingness to cooperate). On the Commonwealth's case, it is only where, by reason of mental impairment, an applicant is incapable of being able to cooperate that the prospect of removal becoming practicable in the reasonably foreseeable future is to be evaluated on the basis that there will be no cooperation.

11    Alternatively, if it is relevant to consider the reasons of the applicant for not cooperating in his removal to Iran, the Commonwealth says that as the failure to cooperate is said to be for reasons that ought properly to have been advanced to support his efforts to obtain a visa then those reasons are irrelevant. Finally, the Commonwealth says, in any event, that the evidence of the applicant as to the reasons why he has refused to cooperate in his removal to Iran should not be accepted.

The principal contentions of the applicant

12    The applicant accepts that the evidence adduced by the Commonwealth establishes that, with his cooperation, he could be removed to Iran. However, the applicant says that he has no obligation to cooperate and that he has good reasons for not cooperating. On his case, his reasons for not cooperating with his removal to Iran mean that he is not deliberately refusing to cooperate. The applicant accepts the possibility that a refusal to provide information to establish a person's identity in circumstances where the Commonwealth is unable to establish their identity may be relevant to whether there is a real prospect of future removal. However, the applicant says that he is not in that category of case.

13    The applicant says that he fears for his life if he is removed to Iran. He says that his fear is associated with matters relating to his sexuality that occurred in Iran. He also says that there are other reasons why he 'cannot' return to Iran including (a) his acceptance of Christianity; (b) his ethnicity as a Faili Kurd; and (c) his opposition to the mistreatment of women by the government in Iran.

14    The applicant also says that he is willing to be removed to anywhere other than Iran. In circumstances where he is not required by the terms of the relevant statutory provision (s 198(6)) to be removed to a particular place, he says that he is cooperating in his removal (or at least his refusal to cooperate is not so that he can remain in Australia).

15    The applicant made submissions to the effect that the Commonwealth had failed in the past to pursue the possibility that he might be removed to some country other than Iran. A complaint of that kind may support a mandamus claim requiring the relevant officer to undertake the statutory duty to remove the applicant. However, no such claim is made by the applicant. Rather, in the end, those matters were relied upon to support a submission to the effect that since August 2018 there has been no prospect of the applicant being removed from Australia and, in consequence, his detention since then has been unlawful.

16    In those circumstances, the applicant says that there is 'no real prospect' of his removal from Australia 'in the reasonably foreseeable future'. He says that to interpret the reasoning in NZYQ as excluding an instance where the detained person is not cooperating in their removal from Australia to a particular place is to add a gloss to what was decided in that case.

17    In the alternative, the applicant says that the willingness or otherwise of a detainee to cooperate in their removal is irrelevant. It is enough that Iran does not accept involuntary removals and that there is no other place to which the applicant can be removed (even though he is willing to be removed to some other place). In those circumstances, so it is submitted, the constitutional limit for lawful detention has been reached.

Application of the decision in NZYQ where there has been a failure by a detainee to cooperate in their removal

18    In NZYQ, the High Court unanimously reopened and overruled its earlier constitutional holding in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562. All members of the Court in NZYQ determined that in order to establish that 'the Migration Act validly applied to authorise continuation of the plaintiff's detention, the defendants were accordingly required to prove that there existed a real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future': at [60] (emphasis added).

19    It may be accepted that by reason of the parties' agreement in NZYQ that the detainee had 'complied with requests for information made by officers of the [Minister's] Department and had otherwise assisted the Department with its inquiries' (at [62]), the High Court did not have to decide whether a failure to cooperate might be relevant to the application of the constitutional limitation. Nevertheless, it is significant that the High Court in NZYQ distinguished the facts before the Court on that occasion from the facts in two previous cases that had been before the Court. Having noted the agreement between the parties as to the provision of assistance by the plaintiff, the High Court then said:

This was not a case of a person in immigration detention having contributed to the frustration of the pursuit of lines of inquiry by officers of the Department attempting to bring about the person's removal.

20    The above sentence concluded with a footnote reference which was 'Compare Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285. See at 297 [30]-[33], 301-302 [47]'.

21    Following the above sentence was a second example:

Nor was it a case where officers of the Department remained in the process of pursuing lines of inquiry based on circumstances peculiar to the person in detention.

22    The reference to the second example concluded with a footnote reference which was 'Compare Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322. See at 334-335 [4], 368 [135]'.

23    Plainly, the references to Plaintiff M47 and Plaintiff M76 emphasised distinguishing features in those two cases from the circumstances of the case at hand. Read in context, the Court was saying that where a person in immigration detention has frustrated the pursuit of lines of inquiry by Departmental officers or those officers have not yet exhausted lines of inquiry the constitutional limitation may not have been exceeded.

24    Further, earlier in its reasoning in NZYQ, the High Court had referred to both Plaintiff M76 and Plaintiff M47 as instances where the arguments advanced to support the reopening of Al-Kateb had failed on the facts and that NZYQ was 'the first time that there was shown to be a state of facts which made questions about reopening and overruling Al-Kateb necessary to be addressed by the Court in order to determine the rights of the parties before it': at [16]. Necessarily implicit in that statement is support for the conclusions in those cases that, on the facts, they did not establish circumstances in which the constitutional limit on the duration of immigration detention as articulated in NZYQ was exceeded.

25    Therefore, read in that context, when the High Court subsequently identified distinguishing features of those earlier two cases when reasoning as to the application of the new constitutional holding to the facts in NZYQ it may be safely concluded that their Honours were identifying instances where the constitutional limit had not been exceeded.

26    Accordingly, expressed in the affirmative, the ongoing detention of an alien is lawful where the person in immigration detention contributes to the frustration of the pursuit of lines of inquiry by officers of the Department attempting to bring about the person's removal. It is also lawful where officers are in the process of pursuing lines of inquiry to arrange the person's removal.

27    However, the High Court did not deal in terms with an instance where a detainee had frustrated efforts to bring about their removal but claimed to have done so for reasons associated with their personal safety. Senior counsel for the Commonwealth accepted that to be the case. Nor did the High Court consider whether the willingness of a detainee to be removed to places other than the place of their nationality was relevant to whether the constitutional limitation had been exceeded. Nor did the High Court deal with an instance where the mental state of the detainee was such that the frustration of the efforts of officers could not be said to be the voluntary act of the person concerned.

28    Nevertheless, the two instances where the facts were distinguished from those before the High Court in NZYQ are significant because any understanding of the High Court's reasoning in NZYQ that does not allow for ongoing detention in cases like Plaintiff M76 and Plaintiff M47 to be valid must be rejected as inconsistent with the considered reasoning in NZYQ.

Issues for determination

29    In the above circumstances, the following issues arise for determination:

(1)    In determining whether there is a real prospect of a detainee's removal from Australia becoming practicable in the reasonably foreseeable future, should there be regard to voluntary actions that may be undertaken by the detained person to assist in their removal irrespective of whether the detainee is refusing to undertake those actions in respect of removal to a particular place because of a genuine subjective fear of harm if removed to that place?

(2)    If yes to (1), what is the correct approach to proof of matters concerning whether the detainee has a genuine subjective fear of harm?

(3)    Applying the required approach to proof, is the applicant refusing to undertake voluntary actions to assist in his return to Iran because of a genuine subjective fear of harm if removed to Iran?

30    Included within Issue (1) are two sub-issues, raised by the competing contentions of the parties as to whether particular matters are relevant to determining whether the constitutional limit on valid detention has been exceeded, namely (a) whether the applicant's willingness to be removed to any other place is relevant; and (b) whether any basis for the alleged subjective fear of harm that may have been raised in support of the applicant's failed protection visa application makes that matter irrelevant.

31    If Issue (1) is determined in the negative then the relief sought by the applicant must be refused. That is because it is not disputed by the applicant that the evidence establishes that, with his cooperation, he could be removed to Iran. His first claim is that he has no obligation to cooperate with his removal and the constitutional limit is to be applied on that basis. A negative answer to Issue (1) would involve a rejection of that claim. His second claim is that the constitutional limit is satisfied where there is no prospect of his removal to any place but Iran and no prospect of his removal to Iran because he is refusing to cooperate because of a genuine subjective fear of harm if removed. A negative answer to Issue (1) would also involve a rejection of that claim.

Issue (1): In determining whether there is a real prospect of a detainee's removal from Australia becoming practicable in the reasonably foreseeable future, should there be regard to voluntary actions that may be undertaken by the detained person to assist in their removal irrespective of whether the detainee is refusing to undertake those actions in respect of removal to a particular place because of a genuine subjective fear of harm if removed to that place?

32    The only decision to consider the application of the constitutional limit as articulated in NZYQ is AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497. In that case, Kennett J concluded, with respect correctly, that nothing in NZYQ overruled the reasoning in Plaintiff M47 as to why the circumstances in that case were not outside any constitutional limitation that might be claimed to exist if the decision in Al-Kateb was revisited: at [62]. Further, as his Honour there explained, in Plaintiff M47 'the High Court was not prepared to hold that there was no real prospect of the plaintiff's removal in circumstances where the lack of any such prospect was a consequence of the plaintiff's own deliberate conduct': at [63].

33    However, Kennett J then went on to consider what his Honour described as the point of principle that emerged from the majority reasoning in Plaintiff M47. In that regard, his Honour said at [64]:

People in immigration detention may seek to delay or frustrate their removal from Australia for a variety of reasons and are not under any general obligation to cooperate in the process. The point of principle, as I understand it, is that an alien who has no legal right to remain in Australia is not to be permitted to engineer their own release into the community by frustrating the efforts of officers to carry out their duty under s 198 of the Act. Accordingly, assessment of whether there exists a real prospect of removing an unlawful non-citizen assumes that they will not act so as to frustrate that removal. There may well be a normative aspect to this assumption. How this principle is articulated as an aspect of constitutional law (rather than legislative intention) following NZYQ remains to be seen. However, as noted earlier, I am proceeding on the basis that Plaintiff M47 has not been overruled and is binding.

34    His Honour then found that the applicant in AZC20 was 'not caught by the principle that emerges from Plaintiff M47': at [65]. In reaching that conclusion, his Honour reasoned in the following way:

(1)    the principle in Plaintiff M47 should be understood to apply 'only where an unlawful non-citizen embarks upon a deliberate strategy of preventing their removal from Australia' because, as an exception to the operation of a constitutional rule that protects individual liberty, it should be understood to operate narrowly: at [65(a)];

(2)    the applicant did not seek to prevent his removal from Australia, rather he sought to prevent his removal to Iran: at [65(b)];

(3)    the applicant's opposition to being removed to Iran had its basis in a strong belief that he would suffer persecution if he were to return to Iran: at [65(c)];

(4)    by reason of the state of his mental health, the applicant was unable to change his approach to one of cooperation with his removal to Iran: at [65(d)]; and

(5)    the position of the plaintiff in Plaintiff M47 was to be distinguished because of the absence of any suggestion that his failure to provide information was due to incapacity or mental illness and it was inferred in that case that it was within the power of the plaintiff to cooperate in his removal.

35    The applicant in the present case sought to gain assistance from the above reasoning, particularly the statement of the nature of the principle said to be established by Plaintiff M47. For the applicant, the reasoning of Kennett J was said to support the position that a person in immigration detention had no responsibility to cooperate in their removal, alternatively that they may refuse to cooperate provided that they did not do so as part of an effort to engineer their release into the community.

36    The Commonwealth submitted that to the extent that AZC20 relied upon circumstances other than the mental incapacity of the applicant to cooperate, it was plainly wrong.

37    Before dealing with those competing contentions, it is important to recognise that the decision in AZC20 must be distinguished from the present circumstances in two respects. First, the applicant in the present proceedings did not claim (at least at the time of the hearing) to be burdened with any mental health problems that meant that he was incapable of cooperating. In that regard, the applicant was cross-examined as to his ability to make decisions. Based upon the early part of his cross-examination and the course of his evidence in general, I find that the applicant has the capacity to instruct his lawyers in these proceedings and, despite his mental health being affected and his history of depressive illness, he has made a voluntary decision not to cooperate in meeting with Iranian authorities to facilitate his removal to Iran, a decision which he has the capacity to change but which he chooses not to change. In dealing with Issue (3), I consider separately below the applicant's evidence as to the reasons for making and maintaining that choice.

38    Second, a matter of somewhat less significance than the first, the applicant in the present case does not claim to have commenced proceedings to require officers to carry out their duty to remove him.

39    Further, as has been explained, the reasoning pathway of Kennett J in AZC20 depended materially upon the finding concerning the mental health problems of the applicant in that case. That is to say, a significant part of the foundation for the outcome was his Honour's finding that the applicant in AZC20 was not capable of cooperating. Therefore, it cannot be said that the circumstances in AZC20 are on all fours with the present case.

40    Nevertheless, his Honour's reasoning as to what was said to be a principle that emerges from Plaintiff M47 was also foundational to the outcome. As such, a judge of this court should usually follow that part of the reasoning unless the judge is of the view that the reasoning is plainly wrong: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75]-[76] (French J); and BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 283 FCR 97 at [62] (Allsop CJ, Moshinsky and O'Callaghan JJ). The rationale for judicial comity means that his Honour's reasoning is not to be departed from without a strong conviction of error that can be demonstrated by reasoning and a persuasion that notwithstanding the importance of the underlying principles of certainty, stability and predictability it is proper for one judge to depart from an earlier decision: Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1 at [283]-[301] (Allsop P, Beazley and Basten JJA) (dealing with the principles in an appellate context).

41    With respect to his Honour, for the reasons which follow, I am unable to agree that the constitutional limit as expressed in NZYQ might be confined to an instance where an unlawful non-citizen embarks on a deliberate strategy of preventing removal from Australia. In my respectful view it is not possible to reason from Plaintiff M47 that there is some requirement or principle unexpressed in NZYQ to the effect that there is no real prospect of removal where the detainee does not cooperate in ways that could be said to fall short of what might be termed active frustration of the person's removal from Australia or part of a deliberate strategy of preventing removal from Australia.

42    In NZYQ, the High Court considered and rejected other formulations of the constitutional limit. If it had been intended that some particular significance would be given to the normative characterisation of the conduct of the detainee that might support a conclusion that there was no real prospect of removal then it would be expected that it would have found expression in the language of the limitation.

43    Nor can it be said that Plaintiff M47 was concerned with establishing any principle as to the extent of the constitutional limitation. In Plaintiff M47 all members of the Court determined that the issue as to whether there was a constitutional limitation of the kind contended for by the plaintiff in that case did not arise on the facts in that case. That is to say, the case is only authority for the negative proposition that the constitutional issue did not arise on the facts in that case. It is not authority for any affirmative proposition as to the nature or extent of the constitutional limitation. In particular, the reasoning in Plaintiff M47 did not engage with the way in which the reasoning in Lim (as affirmed in subsequent cases) provided the foundation for the constitutional limitation as determined in NZYQ. As explained below, it is only by reference to that reasoning in NZYQ that any conclusions at the level of principle may be drawn.

44    The High Court in NZYQ did not reason from Plaintiff M47 in expressing the constitutional limitation. Rather, the High Court reasoned from what followed directly from the principle as stated in Lim: see NZYQ at [55]. In NZYQ, the High Court referred to the principle as applied and formulated in Lim as one which required statutory power to detain in custody for the purpose of deporting or removing a person (if permission to remain in Australia is not granted) as only being constitutionally valid if the power was limited in its application to a period of time that is reasonably capable of being necessary to effect that purpose and reasonable capable of achieving that purpose: at [24]-[43].

45    Six members of the High Court, reasoning from the principle in Lim, determined as follows (at [44]-[45]):

… Applying that principle in circumstances where there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future, it cannot be said that, objectively determined, the 'purpose of the detention is to make the alien available for deportation' or 'to prevent the alien from entering Australia or the Australian community' pending the making of a decision as to whether or not they will be allowed entry.

Therein lies the reason why the constitutional holding in Al-Kateb, having been reopened, must be overruled. The Lim principle would be devoid of substance were it enough to justify detention, other than through the exercise of judicial power in the adjudgment and punishment of guilt, that the detention be designed to achieve an identified legislative objective that there is no real prospect of achieving in the reasonably foreseeable future.

(emphasis added)

46    This reasoning involves no resort to anything said in Plaintiff M47 which, of course, did not consider the terms in which any constitutional limit ought to be expressed. Further, the reference to what may be 'objectively determined' is significant. In the subsequent formulation of the constitutional principle there is no departure from this objective approach.

47    All members of the Court then joined in the following statement at [55]:

For the reasons already given, expressing the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia as coming to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future follows directly from the principle in Lim. This is the appropriate expression of the applicable constitutional limitation under a statutory scheme where there is an enforceable duty to remove an alien from Australia as soon as reasonably practicable.

48    The above formulation with its focus upon what is 'practicable' rather than the reasons why the alien as a detainee is not cooperating is inconsistent with the notion that the constitutional limit is exceeded unless the failure to cooperate can be shown to be part of a deliberate strategy of preventing removal from Australia. Later in their reasons, in dealing with the application of the constitutional limitation to the circumstances of the case, the High Court stated (at [61]):

The notions of the practicability and the foreseeability of removal embedded in the expression of the constitutional limitation accommodate 'the real world difficulties that attach to such removal'. The real world context also entails that proof of a real prospect must involve more than demonstration of a mere un-foreclosed possibility.

(footnote omitted)

49    The quoted reference to 'real world difficulties' is from WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 at [59] (French J). Significantly, the quote is from the following full sentence in WAIS:

In my opinion, absent the applicant's own reservations and conditions on his removal from Australia, he has not demonstrated that there would not be a real likelihood of his removal from Australia in the reasonably foreseeable future, assessed in the light of the real world difficulties that attach to such removal.

50    Therefore, it appears that the real world difficulties to which the High Court is making reference do not include the detainee's own reservations about being removed to a particular place.

51    Incidentally, as further explained below, it is not necessary or appropriate to consider the extent to which other aspects of the reasoning in WAIS (and cases which considered that reasoning) may assist. WAIS was a case decided at a time when the prevailing view was that, as a matter of statutory construction, there was an implied limitation on the detention power in terms which bore some similarities to the formulation of the constitutional limitation as expressed in NZYQ. However, its source in statutory construction meant that it had a different rationale. The decision in WAIS also concerned a claim that there had been a request for voluntary removal under s 198(1) of the Migration Act that had not been acted upon by officers of the Department. For both those reasons, its relevance to determining the issue posed by the present case must be viewed with circumspection.

52    Finally, as is apparent from the reasons given in NZYQ at [58] for rejecting a different formulation of the constitutional limitation, the High Court was concerned to ensure that the formulation of the constitutional limitation did not 'uncouple the limitation from its underlying constitutional justification'. That justification was to be found in the objectively determined purpose that was being carried into effect by the ongoing detention. In constitutional terms, the detention of an alien does not lose the objectively determined purpose of removing the alien from Australia if the alien is choosing not to cooperate in achieving that purpose. In such circumstances, removal of the person remains 'practicable' in the foreseeable future.

53    Respectfully, the principle that was found by Kennett J to emerge from Plaintiff M47 is not a principle that is supported by the reasoning in NZYQ as the justification for the constitutional limitation on detention. That limitation is concerned with the objective purpose served by the ongoing detention. Where ongoing detention is to arrange removal from Australia as soon as practicable, that lawful purpose is served for so long as there is a practicable way that the person may be removed, even if it requires cooperation from the detainee for it to be achieved. Practicability focuses upon whether something is able to be done. Where a person lacks the capacity to cooperate then removal is no longer practicable. However, the practicability of removal is not altered by the subjective state of mind of the person being detained. Nor is it altered by an unwillingness on the part of the detainee to do that which is able to be done.

54    Further, in referring to Plaintiff M47 in the footnoted passage quoted above, the High Court did not use language that suggested that any significance was being given to the subjective reasons of the detainee for not cooperating, particularly whether or not the detainee might be said to have been acting in order to frustrate their removal or engineer their own release. Rather, the description was put in objective terms to describe the consequence of conduct of the detainee 'having contributed to the frustration of the pursuit of lines of inquiry'. The word 'frustration' was used to describe the consequence of the detainee's conduct not the reason for it. As explained below, regard to the relevant passages in Plaintiff M47 (as footnoted in NZYQ) confirms that conclusion.

55    The cited passages from the reasons of Kiefel CJ, Keane, Nettle and Edelman JJ in Plaintiff M47 (at [30]-[33]) are as follows:

In the Department's dealings with the plaintiff, he has adopted a posture that involves, at best, non-cooperation and, at worst, deliberate obfuscation and falsehood. No good reason has been advanced for the adoption of this posture. For an unlawful non-citizen seeking entry into Australia, matters relating to his identity cannot sensibly be thought to be private matters of legitimate concern only to him. Further, it was not suggested that the plaintiff's inconsistent accounts of his personal background and his refusal to cooperate with the authorities are due to any medical condition or mental illness on his part. The possibility that the inconsistencies in the plaintiff's accounts of his origins might be explicable by difficulties of that kind was explicitly raised with senior counsel for the plaintiff before the special case was referred to the Full Court, and no suggestion to that effect has subsequently been made on the plaintiff's behalf.

Because the plaintiff has contributed to the frustration of lines of enquiry as to his identity and nationality, what might be established about his identity and nationality if he were to assist the Department in its enquiries cannot be known. It certainly cannot be inferred that genuine assistance from the plaintiff would not be helpful. As the Algerian Embassy stated, information as to the plaintiff's true name and place and date of birth, the true names and dates of birth of his parents, and details of his residences, if any, in Algeria, would be valuable in making progress to establish the plaintiff's identity and nationality.

Such information has not been forthcoming from the plaintiff, and the Court has been given no good reason to regard the plaintiff as incapable of giving a factual and verifiable account of those matters should he choose to do so. Indeed, the plaintiff seeks to take advantage of difficulties to which he has contributed to contend that enquiries as to his identity and country of origin have no prospect of success.

In this regard, the plaintiff submitted that his own statements that he has no knowledge as to his parentage or family are manifestly unreliable, going so far as to argue that without independently verifiable material capable of substantiating his identity, there is no real possibility, prospect or likelihood of the defendants identifying any country to which he could be returned, and no real possibility, prospect or likelihood of any new information coming to light. This is not an attractive argument.

(emphasis added, footnote omitted)

56    The reference in the first quoted paragraph ([30]) to a lack of any good reason for the posture of the plaintiff must be understood in the context of the subsequent reference to the lack of any medical condition or medical illness as the reason for his failure to cooperate. Significantly, the reference is then followed by the unqualified characterisation of the plaintiff's conduct as having contributed to the frustration of lines of inquiry (without reference to the reasons for his conduct). Finally, and most significantly, there is the emphasised passage in the third quoted paragraph ([32]) to the Court having been given 'no good reason' to regard the plaintiff as 'incapable' of giving an account 'should he choose to do so'. The terminology is significant and appears to be chosen to reflect the focus upon mental capacity. Its focus upon whether there was good reason for being incapable of cooperating rather than simply upon whether there was good reason for the plaintiff's failure to cooperate stands against any conclusion that there was implicit recognition of a principle of the kind described by Kennett J in AZC20.

57    Therefore, it was the deliberateness of the plaintiff's conduct that meant that the Court in Plaintiff M47 could not infer (as it was invited to do) that there was no real likelihood or prospect of removal in the reasonably foreseeable future and therefore no foundation for the application to reopen the constitutional holding in Al-Kateb. In particular, in Plaintiff M47 it was the lack of any evidence to show that the plaintiff was unable to provide the information (whether by reason of his medical condition or otherwise) that meant that the inference could not be drawn. It follows, in my respectful view, that the further principle identified by Kennett J in AZC20 is not supported by the reasoning as quoted above.

58    Regard to the separately cited passage from the reasons of Bell, Gageler and Gordon JJ in Plaintiff M47 (at [47]) reveals a similar approach. It was in the following terms:

The procedural history, the questions of law reserved for the opinion of the Full Court and the facts are set out in the joint reasons of Kiefel CJ, Keane, Nettle and Edelman JJ and need not be repeated. As their Honours observe, the possibility of the existence of a medical explanation for the inconsistent accounts given by the plaintiff of his history was raised with his senior counsel before the special case was referred to the Full Court. There is nothing in the special case to suggest that the plaintiff suffers from a psychiatric or other medical condition which would affect his capacity to give a coherent, factual account of his background including the reasons for giving inconsistent accounts in the past. We agree with their Honours' reasons for the conclusion that the plaintiff has deliberately failed to assist the defendants in their attempts to establish his true identity.

(footnote omitted)

59    Their Honours reasoned further that it was within the power of the plaintiff to cooperate and in the absence of his cooperation it cannot be known whether his identity can be established 'nor can the Court essay any conclusion as to the prospect or likelihood of his removal from Australia'.

60    Therefore, properly understood, the reasoning in Plaintiff M47 is to the effect that unless there is an inability to cooperate (for medical reasons or a lack of knowledge), in the absence of cooperation as to matters relating to removal it cannot be concluded that there is no real prospect of the person's removal from Australia becoming practicable in the reasonably foreseeable future.

61    When it comes to the scope of the constitutional limitation, there is a further difficulty with any approach that involves a consideration of the merits or reasonableness of the reasons why a person who has been detained under the provisions of the Migration Act might seek to justify their failure to cooperate in their removal from Australia. The Act has detailed provisions as to the circumstances in which permission may be granted by means of a visa for a person to be able to remain in Australia. They include the circumstances in which a person may be allowed to seek protection in accordance with Australia's international obligations. A person who wishes to seek that permission may do so and, whilst those lawful applications (and any review processes) are pending the person may not be removed without their agreement. Once the pursuit of those possibilities has been concluded, as it has with the present applicant, then the only purpose of detention is to arrange removal - not to revisit claims that have been the subject of applications for permission to remain in Australia.

62    A constitutional limit upon detention is based upon the purpose of removal not being able to be carried into effect with the consequence that the lawful justification for detention comes to an end. If that limit operated in a manner that would allow a person to advance reasons why they should not be removed from Australia (or should not be removed to a particular place) then it would effect a purpose beyond that which justifies the limitation. It would allow the detained person to invoke matters which bear upon whether permission may be given for a person to remain in Australia as matters which bear upon whether the constitutional limit on lawful detention has been exceeded at a time when the purpose of detention (and therefore the purpose by which the constitutional lawfulness of the detention was to be adjudged) was to arrange removal of the person from Australia.

63    As to the applicant's protection claims, the position of the Commonwealth was that in circumstances where those claims had been heard and determined and refused, it was irrelevant to adduce evidence to seek to prove a protection claim on the merits. For reasons I have given, that submission must be accepted.

64    For those reasons, in determining whether there is a real prospect of a detainee's removal from Australia becoming practicable in the reasonably foreseeable future, there is to be regard to all voluntary actions that may be undertaken by the detained person to assist in their removal irrespective of whether the detainee is refusing to undertake those actions in respect of removal to a particular place because of a genuine subjective fear of harm if removed to that place.

65    It follows that the Commonwealth's submission that, in circumstances where there is no evidence that the applicant might be removed to another country, evaluation of the reality of the prospects of his removal from Australia in the foreseeable future depends upon assessing the prospects of his removal to Iran taking account of his ability or capacity to cooperate (even though he has demonstrated an unwillingness to cooperate), should be accepted.

66    For completeness, I note that the submissions for the Commonwealth placed reliance upon decisions in this Court that preceded the High Court's decision in NZYQ. Most were decided before the High Court's decision in Al-Kateb. In Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54, the Full Court (Black CJ, Sundberg and Weinberg JJ) found that on the proper construction of s 196(1) of the Migration Act the power to detain was subject to an implied limitation 'to circumstances where there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future': at [136]. Having reached that conclusion, their Honours added at [137]:

…we do not intend our observations to give any support to a contention that a person who has made a request in writing under s 198(1), might by their own act in frustrating the process of removal, make their continued detention unlawful. For the purposes of the implied limitation, if such a person were, for example, to refuse to sign a consent required by a country otherwise prepared to take him, that person would not (ordinarily at least) be held in circumstances where there was no reasonable likelihood of his removal.

67    Reliance was also placed upon reasoning in SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 295; (2003) 133 FCR 532, which concerned the application of the Full Court's reasoning in Al Masri to a person who claimed that the lawfulness of his detention had come to an end. The primary judge had found that the unwillingness of the person to return to Iraq without an assurance that he would no longer be at risk of persecution in that country constituted a material lack of cooperation so as to disentitle him to release in accordance with Al Masri. On appeal, there was no challenge to the legal proposition that a lack of cooperation would mean that the person was not within the implied limitation on the power to detain. Rather, it was claimed that on the facts as found by the primary judge, the person's attitude did not relevantly cause or contribute to the inability of the respondent to remove him to Iraq: at [15]. That contention was not upheld.

68    Reference has already been made to the decision of French J in WAIS. In that case, in finding that the power to detain had not been exceed on the facts, his Honour reasoned at [58]-[61] as follows:

The term 'as soon as reasonably practicable' in s 198 is an evaluative term which is to be assessed by reference to all the circumstances of the case. What is reasonable is to be determined, inter alia, by reference to the practical difficulties that may lie in the way of making arrangements for removal which involve the cooperation of other countries whether in respect of the particular applicant or generally in relation to the class of applicants of which he is a part. Provided arrangements are being sought generically or specifically by reference to the applicant with reasonable expedition it is difficult to see how delays beyond the control of the Minister and his officers can be taken into account in determining what period for removal falls outside the scope of the term 'as soon as reasonably practicable' in s 198.

… It is appropriate to have regard to the practical difficulties in the way of making removal arrangements in deciding what is 'the reasonably foreseeable future' on the Al Masri criteria. In my opinion, absent the applicant's own reservations and conditions on his removal from Australia, he has not demonstrated that there would not be a real likelihood of his removal from Australia in the reasonably foreseeable future, assessed in the light of the real world difficulties that attach to such removal.

… I do not accept the submission made by counsel for the applicant that the fact that the applicant withholds his consent to being removed to some specific country or makes that consent conditional does not have a bearing on the question of what is “as soon as reasonably practicable” under s 198(1) or (6). I would go so far as to say the written request for removal contemplated by s 198(1) which is so conditioned is not a request of the kind contemplated by that section. In particular, it is not open to the applicant to argue that he can condition or limit his request for removal by excluding the possibility of removal to the country from which he had fled. The statutory scheme contains no such implication even on the Al Masri approach. The lawfulness of his continuing detention cannot be defined by reference to issues relating to whether he has a well-founded fear of persecution if returned to Iraq, that having already been the subject of the administrative and judicial review process that extended from the end of 1999 until September 2001.

There is nothing in the terms of s 198(1) to suggest that a detainee's request to be removed from Australia may be expressed to be subject to conditions including conditions which exclude removal to specified countries and yet still attract the duty to remove him which is created by that section. In particular there is no implication that the applicant requesting removal may reasonably withhold his consent to be removed to a particular country where that consent would be necessary to effect that removal. A detainee cannot, in effect, create a circumstance which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or cooperation to a particular avenue for removal and specifically to removal to the country from which he came. No issue as to the reasonableness of his withholding of consent thus arising, there is no requirement for any further evidence to be considered on that issue as was foreshadowed by counsel for the applicant.

(original emphasis)

69    Reliance was also placed upon the reasoning of Abraham J in DMH20 v Minister for Home Affairs [2022] FCA 1054 (upheld on appeal in DMH20 v Minister for Home Affairs [2023] FCAFC 31; (2023) 296 FCR 256) in which an application was made for a declaration that it was not reasonably practicable to remove the applicant from Australia in the reasonably foreseeable future for the purpose of founding an application that would seek to challenge the correctness of Al-Kateb before the High Court. In declining to grant the declaration, Abraham J found at [75]:

The applicant does not have a legal entitlement to remain in Australia, and has exhausted his legal avenues to do so. He nonetheless chooses to frustrate the operation of the Migration Act because he does not wish to return to Malta. That is a position of non-cooperation. This is not a case, like Al-Kateb, in which the applicant is stateless. This is not a case where the applicant's refusal to sign the travel documents to facilitate his return to Malta proceeds from an accepted well-founded fear of persecution or real risk of significant harm. Although the applicant does rely on what he says are his fears of harm if he is removed to Malta, his protection application was not established, and the appeals were dismissed. This application is not an opportunity for the applicant to reopen those claims. In this context, the applicant's continued failure to cooperate is a choice.

70    Notwithstanding their consideration of the significance of a lack of cooperation in removal (and the reasons for that lack of cooperation), I am not persuaded that the above authorities are of assistance in resolving the present application. There is force in the submission for the applicant that the decision in NZYQ stands upon its own footing, concerned as it is with a constitutional limit upon power, not a view as to the proper construction of provisions of the Migration Act authorising detention. Although there are similarities in the formulation of the test in these previous authorities, there are differences. Most importantly, the Full Court's formulation in Al Masri invites a factual inquiry as to whether there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future. It is concerned with an assessment of future likelihoods or probabilities as to whether removal will happen, an approach that was expressly rejected as a formulation of the test for constitutional validity in NZYQ. Similarly, the declaration that was sought in DMH20 was that 'it will not become reasonably practicable to remove the applicant, and there is no real likelihood or prospect of removal of the applicant, from Australia in the reasonably foreseeable future' (at [1]). Instead, the reasoning in NZYQ focusses upon real world prospects of what might become practicable in the reasonably foreseeable future. The High Court did not reinvigorate past authorities of this Court as capturing the correct approach. The reasoning on NZYQ stands on its own foundation of reasoning. Accordingly, I have not had regard to the earlier authorities in reaching my conclusions as to Issue (1).

71    Given the conclusions I have reached as to Issue (1), it follows that it is not necessary to deal with Issues (2) and (3). However, as they give rise to matters requiring factual findings that depend upon assessment of the credit of the applicant that may be relevant if the matter goes further, I will address them.

Issue (2): If yes to (1), what is the correct approach to proof of matters concerning whether the detainee has a genuine subjective fear of harm?

72    After stating the nature of the constitutional limitation upon immigration detention, the High Court then dealt with the application of the limitation to the facts in that case: at [59]ff. In that regard, the High Court explained the required reasoning process in the following terms: at [60]-[61]:

To establish that ss 189(1) and 196(1) of the Migration Act validly applied to authorise continuation of the plaintiff's detention, the defendants were accordingly required to prove that there existed a real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. Whilst the proof was required to be to a standard sufficient to support the making of a finding of fact to the level of satisfaction appropriate in a civil proceeding where individual liberty is in issue, the prospective and probabilistic nature of the fact in issue (that is, the fact of a real prospect of the plaintiff's removal from Australia becoming practicable in the reasonably foreseeable future) would have the potential to be confused were the standard of proof to be 'on the balance of probabilities'.

The notions of the practicability and the foreseeability of removal embedded in the expression of the constitutional limitation accommodate 'the real world difficulties that attach to such removal'. The real world context also entails that proof of a real prospect must involve more than demonstration of a mere un-foreclosed possibility.

(emphasis added, footnotes omitted)

73    Therefore, it is not necessary for the Commonwealth to prove on the balance of probabilities that there was a real prospect of the applicant's removal from Australia becoming practicable in the reasonably foreseeable future. The prospect to be proven is one that would be recognised as a prospect in the real world and, consequently, must be more than a possibility that has not been foreclosed but need not be shown to be a prospect that, on the balance of probabilities, will occur.

74    The above reasoning is not concerned with the standard of proof that pertains to an alleged subjective fear of harm that is said to be sufficient justification for a deliberate failure by a detainee to cooperate in removal from Australia.

75    In oral submissions for the applicant, it was said that the constitutional limitation had been exceeded because '(a) Iran doesn't accept involuntary removals, and (b) the [applicant] has a subjective fear as to why he would not assist with going to the Iranian embassy'. Later it was accepted that the applicant's case as to subjective fear required that the fear be demonstrated to be held bona fide. Therefore, in order to address Issue (2) (and Issue (3)), it is necessary to assume that the constitutional limit is reached because there is no real prospect of a detainee's removal becoming practicable in the reasonably foreseeable future because the detainee will not cooperate in removal due to a genuine subjective fear of harm if removed.

76    The forensic consequence is that a person who seeks the issue of a writ of habeas corpus on the basis that the person's immigration detention is continuing in circumstances that exceed the constitutional limitation will discharge their evidentiary burden if they give evidence to the effect that they will not cooperate in removal due to a subjective fear of harm if removed. The Commonwealth must then prove that the ongoing detention is lawful because the detained person does not have the genuine subjective fear of harm that the person claims to have. That is to say, the Commonwealth's burden is to prove that a person does not have a genuine subjective fear of harm. The evidentiary principles that have been developed concerning habeas corpus claims assume that the detainer ought to be able to demonstrate the existence of facts to justify the detention. However, unusually, (on the assumption that must be made by reason of the formulation of the applicant's case) the lawfulness of the detention depends upon the state of mind of the person being detained.

77    This conclusion perhaps exposes a further difficulty with the applicant's case as to Issue (1). However, the logic of the applicant's case must lead to the conclusion that the Commonwealth in a case like the present must disprove the existence of a state of mind of the applicant for relief.

Issue (3): Applying the required approach to proof, is the applicant refusing to undertake voluntary actions to assist in his return to Iran because of a genuine subjective fear of harm if removed to Iran?

78    The Commonwealth sought to discharge the burden of proof by submissions to the effect that the testimony of the applicant should not be accepted. Therefore, the resolution of Issue (3) depends upon whether I am prepared to uphold the Commonwealth's submissions as to the lack of credibility of the testimony of the applicant concerning his alleged subjective fear of harm if removed to Iran.

79    The applicant gave oral evidence with the assistance of an interpreter. No issue arose as to the communication between the applicant and the interpreter. Nevertheless, I accept that due allowance must be made for the possibility of misunderstanding when expressions are translated from one language to another in the course of oral testimony. Care must be taken not to afford significance to the use of particular terminology and due allowance must be made for possible misunderstandings that may arise through the use of colloquial language or expressions that are culturally contextualised. Consequently, it is important instead to consider the overall course of the interpreted oral testimony. I have sought to do so.

80    In his dealings with officers of the Department since August 2018, the applicant has consistently maintained that he cannot be removed to Iran. Also, he has declined to make any request that he be removed to Iran. Until recently, he has not provided any substantive reason for his position that is consistent with the evidence that he gave to the Court during the hearing.

The applicant's affidavits

81    The applicant's affidavits were deposed in English. There was no indication on the face of the affidavits that they had been interpreted. The applicant attended at the hearing to give oral evidence with versions of the affidavits in Farsi. At times he sought to refer to those versions. There was no application for them to be received into evidence.

82    The applicant's explanation as to the circumstances in which the affidavits were prepared was that his solicitor and he 'share the same language' and that the solicitor translated what he said into English and wrote it down. Then the written English version was interpreted by his solicitor and written in Farsi. The applicant's evidence was that the translation into Farsi by the solicitor was done to make sure that 'nothing is missing'. It may also have been the case that the affidavit was read out in English by the solicitor for the applicant to consider, to the extent of his ability to speak and understand English. The applicant's evidence as to that particular aspect was unclear. However, there was no suggestion by the applicant that there was any difficulty in communication with his solicitor.

83    Without countenancing the presentation of affidavits as having been deposed by the witness in English without disclosing the above circumstances, I find that the process that was followed in preparing the affidavits means that it is unlikely that there was any miscommunication as to the content of the affidavits. That is to say, they were sworn in circumstances where their contents were translated to the applicant into Farsi, a language with which he is familiar, by his own lawyer and that was done for the express purpose of satisfying the applicant that there was nothing missing from the affidavits.

84    Having regard to the above circumstances, I make the following findings as to the evidence given by the applicant. I deal first with the terms in which the affidavit evidence was expressed and then with my findings as to the credibility of the applicant's account of the reasons why he says that he fears harm if he was returned to Iran.

85    In commencing these proceedings, the applicant did not identify any reason for his position that he cannot be removed to Iran. His affidavit in support of the application was sworn on 15 November 2023 (and then re-sworn on 13 December 2023) (First Affidavit).

86    In the First Affidavit the applicant explained that he had made an application for a temporary protection visa or a safe haven enterprise visa on 2 September 2015. Then, on 1 April 2016, he withdrew his application for a temporary protection visa. He said that he attended an interview in relation to his safe haven enterprise visa on 2 June 2016. He explained that his application was refused. Self-represented, he brought an unsuccessful judicial review application and an unsuccessful appeal. I observe that his claims in support of his application for protection were summarised in the following terms in the reasons dismissing his appeal (ASF17 v Minister for Immigration and Border Protection [2018] FCA 1149 at [5]):

The appellant claims that he is a stateless and undocumented Faili Kurd from Iran. He said that although he stated in his arrival interview that he was an Iranian citizen, that information was wrong and that he was told by other people to pretend to be an Iranian citizen. He denied claims that he had made during his arrival interview that he had done military training. He claimed that he feared that his status and ethnicity would mean that he would be denied access to basic services, and that throughout his life he had faced persecution and discrimination as a stateless and undocumented Faili Kurd. The appellant also claimed that he had converted to Christianity and although he had not yet been baptised, his change in religion would put him at risk of persecution in Iran.

87    In his First Affidavit, the applicant referred to recent conversations with removal officers about problems in Iran and fears of what will happen if he was to return to Iran. However, he made no reference in the affidavit to what those problems may be. Nor did he suggest that he had referred to the nature of those problems with the removal officers. He simply deposed that 'I cannot return to Iran'.

88    On 8 December 2023 the applicant deposed a further affidavit in support of his application (Second Affidavit). It too was re-sworn on 13 December 2023. In his Second Affidavit he deposed that the reason he kept saying he had problems in Iran was because his wife had caught him having sex with another man one time when she returned home unexpectedly from shopping. He said that because of that his brothers do not speak to him and he has never spoken to his brothers since he fled Iran. He said these matters are the reason why he cannot return to Iran. He deposed that the matter is confidential and not easy for him. He said that he had kept his bisexuality to himself because he was fearful of harm if anyone found out about his bisexuality.

89    As to why he had not spoken of these matters earlier he said that part of the reason 'is that I did not have any representation in the interview with the delegate, and in the court proceedings'. He said that he received some assistance from detainees in detention to write his statement 'and due to my fears that I may be harmed, I never disclosed this information'. He also said that part of the reason for not disclosing the information at any earlier time 'is the nature of it'.

90    The applicant further deposed that he had never disclosed information about his sexuality to the Australian authorities due to fear and stigma associated with such conduct in Iran. He said: 'I know I will face torture or death at the hands of Iranian authorities if I am returned'. He then said: 'My brothers hate me even more because of my conversion to Christianity and my regular posts about Christianity shared through my Facebook'.

91    As to his brothers, he said they 'may also be motivated to harm [him] … even if the authorities don't prosecute and kill [him]'. However, he did not depose in terms that he feared that they would do so. Nor did he suggest that they had made any threats or provide any details about their views beyond the statement that his brothers do not talk to him. Specifically, he did not state that we was concerned that they might kill him if he returned. His concern in that regard was directed towards what might be done 'at the hand of the Iranian authorities'.

92    He then deposed:

I also cannot return to Iran for a number of other reasons including:

(a)    Leaving Islam and accepting Christianity, which is a crime in Iran and the punishment for which is death;

(b)    I am Faili Kurd and do not enjoy equal rights in Iran. Kurds are regularly harassed, detained, tortured and jailed by Iranian authorities.

(c)    I am opposed to the extremist government in Iran particularly for their mistreatment of women. In solidarity with Iranian women, I regularly posted Facebook and Instagram stories against their mistreatment by the extremist government. I … have seen first hand how [female family members] are discriminated by the Iranian system and Islamic religion because they are women.

93    The brief conclusionary evidence given in the Second Affidavit about these other matters sits awkwardly with the applicant's evidence that there is 'a problem' with him returning to Iran and the identification of the occasion when he was caught by his wife having sex with another man as the cause of that problem and its nature being the reason why he has not spoken about it previously. If indeed these other three matters are of serious concern then there is no explanation at all as to why the applicant has not mentioned these matters over the many years since August 2018 that he has maintained that there is a problem for him returning to Iran. Indeed, it appears that at least some aspects of those matters were raised by him in support of his protection visa application, particularly his claim that he had converted to Christianity. If indeed those matters were the reasons for his concern about being returned to Iran there was no evidence given by him as to why those matters were not raised with case officers and instead he referred in unspecified terms to having a problem with returning to Iran.

94    In the balance of his Second Affidavit (as in his First Affidavit), the applicant said that in his conversations with his case officers he has said that he cannot return to Iran because he has 'a problem in Iran' and that it is because he has a problem that he has remained in detention. He deposed that: 'Only a stupid person will voluntarily lose his freedom this way, rotting in detention, if he could live free somewhere - not Australia'.

The applicant's bisexuality

95    The applicant was not challenged on his evidence that he is bisexual. He gave evidence to support that claim. I accept that his sexual orientation is bisexual and that he has had sexual encounters with other men whilst being detained in Australia.

The lack of reliability in the applicant's account

96    However, I do not accept the applicant's other evidence as reliable. There were many difficulties with the applicant's account. They are addressed below.

97    The applicant was challenged in cross-examination about the inconsistencies with the account given in his affidavits and the record of an interview that took place when he first came to Australia. At times his evidence relied upon the accuracy of what was recorded in the record, in particular the reference to the fact that he had problems with his wife. As to that aspect of the record (and other aspects), his evidence was that he gave a summary and then the details were to be given at 'the real interview'. However, that evidence, if accepted, does not explain inconsistencies between what is in the record and the evidence in his affidavits. In particular, as to his wife, the record says:

Taxi driving. I was making a lot of money, but by the time I paid for everything I was left with nothing. That is why my wife separated from me.

98    It was not the case that the applicant was recorded as saying he had unspecified problems with his wife with details to be given later. Rather, the record explained those problems as being financial.

99    As to parts of the record that indicated that the reason why the applicant left Iran was the lack of economic opportunities in Iran, his responses were to the effect that he was discussing Iran with the interviewer and she said that Iran has all these problems and then he repeated those matters in the interview. In effect, the applicant sought to attribute to the interviewer the references in the record to the lack of economic opportunity in Iran being the reason why he came to Australia. He claimed that she suggested problems in Iran and he adopted them. By that means he sought to distance himself from statements in the record to the effect that he had come to Australia to seek economic opportunity. I do not accept that explanation as likely or credible. The reference in the report is personalised and concerns the applicant's own difficulties in making enough money to pay for everything by taxi driving. The interview record also refers to the applicant having investigated to find an ideal country. When pressed as to whether that was something he said at the interview, the applicant said that he may have said it but he could not remember as it was 10 years ago. However, earlier in his evidence he had asked senior counsel conducting his cross-examination why he was not referring to the mention of the problems with his wife thereby relying on the record as something he remembered. He also said that he remembered being told by the lady who was interviewing him that there was no need to go into the details and he should just give a quick answer. He also gave the evidence (which I have not accepted) about the exchange with the interviewer. Although the interview occurred a long time ago, given its significance for the applicant, it may be expected to be a memorable event and the applicant gave no credible evidence as to why the aspects of the record relied upon by the Commonwealth might be inaccurate.

100    The applicant said that he had fled Iran very quickly, that he 'vanished'. However, he also said that he sold his cars and collected money and it took 'some short time to just live roughly' before leaving Iran. When asked why he sold his cars he answered that it was for when he decided to leave the country so he had to sell them.

101    When asked about a part of the record that said that his brother had paid the people smugglers so he could come to Australia, the applicant agreed that was what he said at the interview - another part of his evidence that indicated he was able to remember the interview. However, his evidence was that he had paid for the expense of his trip to Australia himself. When challenged as to why he had said that his brother had paid, the applicant said he had referred to his brother because his 'mates' at the detention centre had told him to say that. Then he said they told him not to go into the details. However, that does not explain why he said that it was his brother who paid when on the version of events at the time of his oral evidence at the hearing, he had paid for the people smugglers by selling his cars. Further, his account that he had sold the cars to raise the money did not sit with his version that he 'vanished'.

102    The reference to the applicant's brother as having paid for him to come to Australia is significant in the context of the account now given in his Second Affidavit. In that affidavit he stated that his brothers may be motivated to harm him and that they hate him and he does not speak to them. In the course of his oral evidence, when challenged about his evidence as to how he came to say that his brother had paid for his travel to Australia the applicant gave evidence in much stronger terms than is found in his affidavit. He said that he had never spoken to his brothers and that they 'want to cut my neck. They don't want me to live'. There was no evidence in those terms in his Second Affidavit. As has been mentioned the affidavit was prepared and checked carefully. If indeed the applicant genuinely feared that his brothers would kill him if he returned then you would expect the affidavit to have been expressed in those terms. The account now given about those matters is inconsistent with the statement that the applicant made in the interview as included in the record that it was his brother who paid for the cost of his travel to Australia.

103    At another point, the applicant sought to explain inconsistencies between his current version and what was in the record on the basis that he was told not to say anything until he got to court or not to give the details until he got to court. However, that does not explain the inconsistencies between what was recorded and what he now says and it also does not explain why the claims he now makes were not raised when he applied for protection and sought judicial review.

104    In short, as to the record of interview, I was left with the firm impression that the applicant was saying whatever came into his mind to support his case. His account was inconsistent, illogical and lacking in any credibility. At times he relied upon what was in the record as being accurate, at times he accepted it was what he said but sought to explain why it was not true, at times he could not remember the interview but at other points he gave detailed evidence about what he could remember and he gave various inconsistent reasons as to why the record was not consistent with the account he was now giving (namely, he had repeated what the interviewer said about Iran, he was told by the interviewer to keep his answers short, he was told by his 'mates' to say things, he was told by his 'mates' not to go into details and not to say a word about his case and he was told not to say anything until he got to court).

105    The applicant was also asked about the statement that he provided at a later time in support of his protection visa application. His evidence concerning the statement was evasive and, before being asked about the details of the statement, he sought to provide explanations for why the statement was not reliable. He said that he did not remember being assisted by an immigration agent at the time and he did not remember providing the statement. However, it is clear from the terms of the statement that it was prepared with the assistance of an immigration agent. He said that he had done all interviews with the help of his mates. After confirming that it was his signature on the statement, the applicant said: 'I don't say I didn't say these things and I don't refuse it'. He then said that he mentioned things in the statement out of fear or lack of knowledge. He said he was in the camp so he had no choice and couldn't say the truth.

106    The applicant eventually accepted that he knew that the statement was to be given to the Department to consider his protection visa claim and that he knew he needed to explain why he feared returning to Iran. The applicant was taken to parts of the statement in which he claimed to be stateless and that he had not told the truth at the time of his arrival interview when he said he was a citizen of Iran. He also said in the statement that he had been told by other people that it would be better to pretend to be an Iranian citizen. These were false statements, as he now accepts.

107    When pressed as to the inconsistency of now accepting that he was a citizen of Iran the applicant said that he was in a situation where he could not tell the truth and that he was in a dangerous place. He said that out of fear he had to change and alter some information. He then attributed the contents of the statement to assistance that he had received from his 'mates'.

108    However, those explanations do not make sense. There is no suggestion that there was some risk of harm to the applicant in detention that would arise if he did or did not identify himself as an Iranian citizen. He has now accepted for some time that he is an Iranian citizen. The inconsistent positions that he has maintained concerning whether he is an Iranian citizen or a stateless person reflect very adversely upon his credibility. They demonstrate that he has been prepared to concoct and adhere for a considerable period to a false version of events for the purpose of assisting his claim to protection. It is a version of events that was concerned with his ethnicity not his sexuality. That is to say, on the applicant's account, instead of referring to the real reason for coming to Australia and why he feared returning, instead he made up an account about being a stateless person. Further, it is a version of events that he was prepared to advance at a time when he had been in detention for a considerable period of time and knew that he needed to put forward why he feared returning to Iran.

109    In the course of cross-examination, the applicant avoided all questions that were directed towards eliciting some form of explanation as to why his current claims were not advanced in support of his protection visa claim. The absence of any compelling explanation as to why the account that he now advances in his Second Affidavit was not given when interviewed in the context of his application for a protection visa is striking. He does not explain why he did not raise matters in that confidential setting.

110    Further, the explanations given by the applicant to the effect that he thought his initial interview was a 'simple interview' and that he should go into the details at the next stage are inconsistent with his unexplained failure to raise those matters in support of his protection visa application. In that context, the explanation that he offered as to why he did not mention the matters he now relies upon when providing his statement in support of his protection visa application was unconvincing. In that regard, he said: 'I knew that it was for the visas, but I didn't know if I were rejected it's the end … I was thinking that I get the visa and then I come out, and after that I could start my case and follow it up'. Nor is the explanation that he was told that he should not say anything until he got to court consistent with other events. There is no evidence that the claims that are now made were indicated at any time in the court proceedings when he sought review of the refusal of his protection visa, being proceedings that he conducted on his own behalf and, on his account, were when he was told to raise his claims.

111    The applicant did give evidence to the effect that his statement for his protection visa application was prepared in a way where its contents were known to other detainees. But the fact remains that he did have the assistance of a migration agent in preparing his protection visa application and his statement, and he was interviewed. Yet, the claims he now makes about events in Iran before the applicant came to Australia were not raised in any part of the protection visa process, not in his statement, not in his interview and not in the course of the subsequent court proceedings. Although such claims were likely to have been irrelevant to the review proceedings in the Circuit Court and in the appeal in this Court, in circumstances where the applicant was acting on his own behalf in those court proceedings, if indeed his understanding was that he should wait until he was before a court to put his true claims, then it is telling that when he was before the courts he did not raise the claims that he now puts forward.

112    Indeed, there is an inconsistency between the evidence of the applicant in which he proffered all these reasons for why he did not raise the claim and the way he puts matters in his Second Affidavit (where he refers to the following matters as the reasons why he did not say anything about events that he now says occurred with his wife):

I understand there will be questions why I have not said it before. Part of the reason is that I did not have any representation in the interview with the delegate, and in the court proceedings. I received some assistance from detainees in detention to write my statement and due to my fears that I may be harmed, I never disclosed this information, Part of the reason, is the nature of it.

113    What he says in his Second Affidavit is that the reason why he did not provide the information was because of his fear of being harmed.

114    After the applicant failed to obtain a protection visa on the basis of the version of events that he gave in his statement, he maintained that he cannot return to Iran. He gave no reason for that position despite the passage of many years. He simply refused to cooperate with any effort to return him to Iran. Although he says he is willing to be removed to another place, he has not advanced a basis for seeking removal to any other place and there is no independent evidence in the documentary record that suggests that he has agitated for his removal.

Alleged significance of duration of detention for applicant's claims

115    Against these matters is the fact that the applicant, since August 2018, has consistently maintained that he cannot return to Iran because he has a problem in doing so. He has maintained that position in circumstances where he must be taken to be aware that, as a citizen, arrangements could be made for his voluntary return to Iran. He maintained that it could be inferred from the fact that he had endured many years in detention rather than return voluntarily to Iran that the account that he has now given in his affidavits in support of his present application is a true account.

116    However, the applicant's behaviour is also consistent with a singular focus upon being able to secure permission to be released into the Australian community rather than face economic difficulty if he was to be made to return to Iran. Indeed, in his Second Affidavit he says that the case managers always gave him hope, that they made requests for the Minister to consider his case and that he would get a visa and be released. The documents show that, for much of the time since August 2018, there were pending requests for Ministerial intervention to allow the applicant to remain in Australia. The applicant produced an aide memoire which included 10 references in the documents to discussion between case officers and the applicant concerning the pendency of his requests for Ministerial intervention. The most recent of those references was on 20 November 2023 which was 'his MI [Ministerial intervention request] is still ongoing'. Before that the previous reference is for 31 October 2023 which is in the following terms:

… he [the applicant] wanted to know about the MI request to the Minister, I informed him that work had been done recently and that there was no indication of what the outcome would be …

117    Plainly the pursuit of those requests shows that the applicant has been seeking to obtain permission to remain in Australia. It is not the case that for the past five years he has been pressing to be removed from Australia to some place other than Iran. Indeed, the only reference in the applicant's aide memoire to records in the documents of the applicant's willingness to go anywhere except Iran is a record of a statement on 25 June 2020 by the applicant that the Department could send him anywhere but he couldn't return to Iran. When asked what country would allow him to live there permanently, the applicant replied that he did not know. All other references are to the applicant's unwillingness to return to Iran.

118    I do not accept that the inference to be drawn from his refusal to be removed to Iran is that he is now telling the truth as to why he cannot return.

Applicant's alleged conversion to Christianity

119    The applicant was asked questions as to his claim that he had converted to Christianity. He produced records from his Facebook account where he had reposted a significant amount of Christian material including videos. The produced re-posted material was for the period up until 2 November 2018 and then in the weeks prior to the hearing. That is to say, there was a gap of five years when there was no re-posting. He said that he was not able to access material that he had himself posted as 'stories' in which he referred to matters relating to his Christian faith. In effect, he maintained that he had been posting materials as 'stories' during the intervening period but had not re-posted anything. The claim that there had been posts during that time which are no longer accessible does not explain the five year gap. In this regard the applicant maintained on the one hand that he had continued posting throughout that time but also gave evidence explaining why he had problems in being able to practice his Christian faith. However, none of that evidence explained why the applicant was re-posting Christian material up until November 2018 and then only re-commenced doing so once the present proceedings had been commenced. That is to say, there was no explanation as to why re-posting stopped but (on the applicant's account) other posting continued.

120    The applicant's evidence in his affidavits as to his conversion to Christianity was sparse. At one point in his oral evidence he did say that he had been praying at a time when he had been in severe mental distress. There was no dispute that the applicant had suffered periods of depression to the extent that he had attempted to take his own life. It may be accepted that the personal burden of being held in detention for such a considerable period of time would have been very significant, probably extreme. However, if indeed he had converted to Christianity and found comfort in adversity from his Christian faith then you would expect him to provide some detail to support a claim of that kind. Instead, when challenged as to whether he had converted to Christianity, the applicant responded with rhetorical flourish rather than detail. He then said that he was a Christian and 'the first thing I do after I get out I am going to be baptised, if it is your excuse'. He was not re-examined as to his Christian faith and practice.

121    The claim of conversion to Christianity had been advanced to support the applicant's protection visa claim. It was rejected by the delegate of the Minister. Upon application for judicial review in what was then the Federal Circuit Court of Australia, one aspect of the challenge to the delegate's reasoning as to the genuineness of his conversion to Christianity was upheld but his review application was unsuccessful because of findings about reliance on bogus documents by the applicant concerning his ethnicity. On appeal to this Court, the reliance upon the claim of conversion to Christianity was maintained. These matters provide context for the unexplained period of many years thereafter when the applicant ceased re-posting Christian material. The delegate's decision was made in January 2017 and final judgment in his appeal to this Court was delivered in August 2018. Therefore, the fact that the cessation of re-posting of Christian materials occurred soon after that date without any plausible explanation is compelling.

122    The applicant did not suggest that since the time of those findings there had been some further event which was relevant to determining whether he was a genuine convert to Christianity.

123    The reasons that have already been given concerning the lack of credibility of much of the evidence given by the applicant also provide difficulties for accepting the applicant's account of his conversion to Christianity without any detailed account to support his very general claim to that effect. The absence of any real detail concerning the public profession of the applicant's alleged conversion to Christianity or the practice of his faith means that his evidence is little more than an unsupported general claim.

124    By his aide memoire, the applicant relied upon two occasions over a period of many years where notes produced by the Commonwealth of conversations with the applicant recorded him as saying he was looking to God or believing in God. He also relied upon references in clinical records for 2019 produced by the Commonwealth to religion being a 'protective factor' when it came to assessing the applicant's mental health as well as a note on 11 March 2019 that the applicant '[h]as been praying by himself. Prays first thing in the morning and at night'. Those isolated references are an insufficient independent foundation upon which to reject the Commonwealth's submission that the applicant's evidence that he has converted to Christianity should not be accepted as reliable.

Alleged statement by applicant concerning conversations with his brother

125    An issue arose as to whether it could be concluded from a clinical record by a psychiatrist dated 31 August 2023 that the applicant had said that he talks to his brother in Iran. The psychiatrist was not called to give evidence. The applicant's account was that he was asked by the psychiatrist whether he talks to his family members and he never brought up any issue about his brother in the mental health meeting. The record indicates that the meeting with the psychiatrist was held without an interpreter and that other meetings had been interpreted. I am not prepared to draw any conclusion from the isolated reference to the applicant's brother in the clinical records in those circumstances.

Ultimate findings as to claims of subjective fear of harm

126    Accordingly, based upon the findings I have made as to matters concerning the lack of credibility of the applicant's account as to the claims made by him concerning his fears if he was to return to Iran, I make the following findings:

(1)    I accept that the applicant's present and recent sexual orientation is bisexual;

(2)    I do not accept the applicant's evidence that he was discovered by his wife in bed with another man before coming to Australia;

(3)    it follows that I do not accept that the applicant fled Iran because of the consequences of any such event for his relationship with his brothers or that there was any police investigation in Iran as to such matters;

(4)    I do not accept that the applicant has converted to Christianity by any public confession of faith or baptism;

(5)    I do not accept that the applicant is a practicing adherent to the Christian faith; and

(6)    I do not accept the applicant's claim that he is willing to be removed to any place other than Iran and does not seek to remain in Australia.

127    Further, the applicant has not adduced evidence beyond assertion to discharge his evidentiary onus in relation to any claimed fear of harm by reason of him being a Faili Kurd. The applicant also has not adduced any evidence to discharge his evidentiary onus in relation to his alleged posting of materials concerning mistreatment of women in Iran. In the absence of evidence as to these matters, no onus of proof as to these matters falls upon the Commonwealth. There is simply nothing to disprove.

128    In that regard, the Commonwealth's acceptance that the applicant had discharged his evidentiary onus was a confined acceptance and reflected the terms in which the case had been put at that time by the applicant. The written opening submissions for the applicant relied upon the reasoning of Kennett J to the effect that the principle in NZYQ operated narrowly and that any exception to the constitutional rule concerning a lack of cooperation by an individual with arrangements for removal from Australia should be understood 'to apply only where an unlawful non-citizen embarks on a deliberate strategy of preventing their removal from Australia' (AZC20 at [65]). That is to say, the applicant's case was that refusal to cooperate was only relevant if it was refusal as part of a strategy for preventing removal. For reasons that have been given, with respect, I do not accept that there is any such qualifying principle. Rather, in determining whether there is a real prospect of removal becoming practicable in the reasonably foreseeable future there is to be regard to all actions that might be taken with the cooperation of the person being detained, save only for instances where the person is incapable of cooperating. However, that was the case to which the Commonwealth responded when it accepted that 'in one relatively narrow respect' probable cause had been shown for the issue of the writ. That narrow respect did not include any acceptance that there was evidence as to each of the matters referred to in the applicant's affidavits as to the reasons why he was refusing to cooperate. It concerned the claim by the applicant that he could succeed even though he was refusing to cooperate provided his refusal was not part of a deliberate strategy to prevent removal from Australia.

129    In closing, the applicant relied upon the absence of any cross-examination as to the claims concerning posts about the treatment of women to support a submission that the evidence of the applicant as to that aspect must be accepted. I do not accept that submission. The applicant still had to discharge the evidentiary onus to the extent that it claimed that there was evidence to support the claim that the applicant had a subjective fear of harm because of what he had said about mistreatment of women in Iran. He advanced no such evidence. The same applied to his unparticularised claim based upon being a Faili Kurd.

130    Based upon the above findings, I conclude that the applicant was not refusing to undertake voluntary actions to assist in his return to Iran because of a genuine subjective fear of harm if removed to Iran based upon the claims he has made as to the reasons for that subjective fear. As to his fear of harm by reason of his bisexuality, that claim depended upon his account as to events that occurred in Iran when he said he was found by his wife in bed with another man and the alleged consequences of that event. For reasons I have given, I have not accepted that account.

Additional factual findings

131    On the basis of the formal concession by senior counsel for the applicant, I find that, as matters presently stand, if the applicant cooperated by writing a letter to the Iranian authorities and by providing such other information as may be requested by Iranian authorities then the Commonwealth would be able to obtain travel documents for him to travel to Iran. I also find that there is no country other than Iran to which it may be possible to effect the applicant's removal. Further, the Minister's department has a policy of not removing 'unlawful non-citizens' to countries for which they do not have a right of residency or long term stay. The only country to which the applicant may be removed consistently with that policy is Iran.

132    On the basis of the formal concession by senior counsel for the Commonwealth I find that sexual intercourse between males is illegal in Iran and can attract the death penalty.

133    In my view, it has not been necessary to have regard to the detailed evidence given by deponents relied upon by the Commonwealth. A number of those deponents were cross-examined. It was not submitted for the applicant that the accounts given by the Commonwealth's witnesses should not be accepted as truthful. I have no reason to doubt the truth of the evidence given by those witnesses. Those who were cross-examined gave their evidence attentively and responsively to the questions they were asked. I accept their evidence.

134    The cross-examination of the Commonwealth's witnesses appeared to be directed to the applicant's claim that the constitutional limit on the lawfulness of his detention had been exceed for a considerable period of time (and a claim that the declaratory relief should specify the date from which the detention was unlawful). In the result it is not necessary to make findings as to those matters. Further, as I explain below, had I accepted the claim by the applicant I would not have granted any declaration that concerned whether past detention of the applicant had been unlawful.

Removal to New Zealand or the United States

135    It was submitted for the applicant that in considering whether the point had been reached where there was no real prospect of removal in the reasonably foreseeable future it was necessary to have regard to whether there had been any efforts to remove the detained person to places where the person was willing to be removed. At certain points it seemed that the applicant may be seeking to put a case to the effect that it was not possible to extend the constitutionally valid period of detention by seeking only to remove a person to a place where they could be removed with their cooperation (which was not forthcoming) if, indeed, they could be removed to some other place and thereby be removed 'as soon as reasonably practicable'. In that regard, submissions were advanced to the effect that the obligation was to remove from Australia and not to any particular place. There was also cross-examination as to whether there had been efforts to remove the applicant to New Zealand or the United States or whether there had been sufficient efforts in the past to ascertain information as to places other than Iran where the applicant may be removed. Ultimately, the submission advanced by the applicant was to the effect that there had never been any country other than Iran to which it was said by the Commonwealth that the applicant could be removed.

136    Nevertheless, as the matters were agitated in the course of the hearing, I make the following findings. Evidence to support a contention to the effect that removal to New Zealand or the United States or some other place was possible at some stage or may be possible in the future was not advanced by the applicant. Therefore, to the extent that any claim was sought to be raised concerning removal to those countries the evidentiary onus of the applicant was not discharged. Of course, to the extent that any such evidence was said to relate to the current or future circumstances of the applicant it would have run counter to the principal claim by the applicant to the effect that there was no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future.

The applicant's claims concerning the date to be included for any declaratory relief

137    The applicant sought declaratory relief to the effect that his detention had been invalid from the earliest date when it was found that he could not be removed to Iran without his cooperation and could not be removed to any other place despite, on his case, his willingness to be removed to another place. In submissions for the applicant this was described as the 'critical date' being the date when the applicant said that his detention exceeded the time when the relevant provisions in the Migration Act could validly authorise his ongoing detention.

138    The applicant advanced various alternatives as to when that date might be having regard to the evidence as to what the Commonwealth knew at various times.

139    The Commonwealth accepted that if the applicant was successful then a writ of habeas corpus should issue. The Commonwealth also accepted, in that event, that it was appropriate for a declaration to be granted as to the lawfulness of the applicant's present detention.

140    Otherwise, the Commonwealth said that it was not consistent with the urgent arrangements that had been made to convene a hearing for the purposes of determining whether the applicant was being lawfully deprived of his liberty to undertake a determination as to when in the past, his detention may have exceeded the constitutional limitation. In effect, the Commonwealth submitted that the parties had not joined issue on whether past detention had been unlawful.

141    It is clear from the submissions advanced by the applicant that he did develop his claim by reference to the 'critical date'. However, in written submissions that applicant posed the question for determination in the following terms:

The question is whether, on the Critical Date, the applicant's involuntary removal from Australia, be it to Iran or any other country, had no real prospect of becoming practical in the (then) reasonably foreseeable future.

142    The submission advanced was that the above question should be answered in the affirmative, not that the Court should adjudicate the critical date.

143    The respondent's written submissions dealt with the claim on the basis that it concerned the lawfulness of the applicant's current immigration detention.

144    As to the terms in which declaratory relief was sought in the application, it stated:

Declaratory relief to the effect that:

a.    the applicant's ongoing detention is unlawful;

b.    once the Respondent's material seeking to discharge the onus on habeas has been provided, then, if appropriate, that the Applicant's detention has been unlawful since such earlier date as may be shown on those materials.

145    Nevertheless, the way in which issues were joined by the parties on the written submissions focussed, as may be expected, upon whether the current detention of the applicant was lawful. This reflected the fact that it was only the question whether the current detention was lawful that justified the urgency with which the hearing was convened. In those circumstances, as a matter of fairness, I would have been inclined to limit the terms of any declaratory relief to the current circumstances and afford an opportunity for further evidence and submissions to deal with any claim that there had been past periods when the detention of the applicant had been unlawful.

Notice of constitutional matter

146    The applicant gave notice of two constitutional matters. I formed the view that the matters stated in the notice did not give rise to a matter arising under the Constitution or its interpretation. Rather, the notice concerned the proper application of the principle established in NZYQ to the particular facts of the case. Further, to the extent that the notice raised an issue as to whether the reasonable suspicion of an officer of the Commonwealth might bear upon the constitutional lawfulness of detention, as noted at the outset, the Commonwealth accepted that the suspicion of an officer was not relevant to that question. The Commonwealth's evidence as to that aspect was led out of an abundance of caution to ensure that there was no separate issue as to whether the requirements of s 189 and s 196 of the Migration Act had not been met.

Conclusion and orders

147    For the reasons I have given, the application must be dismissed. As to costs, it is appropriate to provide an opportunity for any party seeking costs to file short submissions in that regard together with an opportunity for submissions in response. Subject to further order, I will deal with any question of costs on the papers.

Associate:

Dated:    11 January 2024