Constitutional law – migration

Habeas corpus – constitutional limit on executive detention where failure by detainee to cooperate.

ASF17 v Commonwealth of Australia [2024] FCA 7 (11 January 2024) (ASF17) involved consideration of the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 at [55] (NZYQ), in which the High Court held that the constitutionally permissible period of executive detention of an alien under the statutory scheme in the Migration Act 1958 (Cth) comes to an end “when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future”.

In ASF17, the applicant had been held in immigration detention for almost 10 years and had exhausted all avenues for seeking a protection visa.

The applicant refused to cooperate with the Iranian authorities for the purpose of procuring travel documents to facilitate his removal. He argued that he was willing to be removed anywhere other than Iran (at [14]), was under no obligation to cooperate in his removal to Iran (at [12]), and that he feared for his life if he were removed to Iran due to his bisexuality, his acceptance of Christianity, his ethnicity and his opposition to the mistreatment of women by the government in Iran (at [13]).

The applicant submitted that the Commonwealth had failed to pursue the possibility that he might be removed to some country other than Iran and that in the circumstances there was “no real prospect” of his removal from Australia “in the reasonably foreseeable future” (at [16]).

A key issue for determination was whether, in identifying whether there is a real prospect of a detainee’s removal from Australia becoming practicable in the reasonably foreseeable future, there should be regard to voluntary actions that may be undertaken by the detained person to assist in their removal even where the detainee is refusing to undertake those actions because of a genuine subjective fear of harm if removed to that place.


Colvin J decided this key issue in the affirmative (at [64]), finding that if a detainee voluntarily refuses to assist in his removal to a place, continued detention may remain constitutionally permissible. This may occur even if the reason the detainee is unwilling to assist is that he has a genuine subjective fear of harm if removed to that place.

The applicant had sought to rely on the reasoning of Kennett J in AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497 (AZC20), in which his Honour considered the application of the constitutional limit as articulated in NZYQ. The applicant argued the reasoning of Kennett J in AZC20 supported the position that a detainee 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.

However, Colvin J both distinguished and “with respect” disagreed with the reasoning of Kennett J in AZC20. His Honour found (at [53]) that while removal becomes impracticable where a person lacks the capacity to cooperate,the practicability of removal is not altered by the subjective state of mind of the person being detained . . . [or] by an unwillingness on the part of the detainee to do that which is able to be done”.

Accordingly, “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” (at [60]) and, therefore, the constitutional limitation on detention is not exceeded.

Colvin J also opined that to allow a person to advance reasons why they should not be removed from Australia (or should not be removed to a particular place) would allow the detained person to invoke matters which bear on whether permission may be given for a person to remain in Australia (at [62]). His Honour accepted the Commonwealth’s position that in circumstances where those claims had been heard and determined and refused, such matters were irrelevant (at [63]).

The application for writ of habeas corpus was dismissed.

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