ASF17 v Commonwealth of Australia

The High Court of Australia considered an appeal by ASF17, an Iranian citizen who arrived in Australia as an unlawful non-citizen and has been held in immigration detention since 2013. Following the final determination of his visa application, s 198(6) of the *Migration Act 1958* (Cth) imposed a duty on officers to remove him from Australia as soon as reasonably practicable, and s 196(1) required his continued detention until removal. ASF17 refused to cooperate with administrative processes necessary for his removal to Iran, stating he would only consent to removal to a country other than Iran, though no alternative country was identified. He sought a writ of habeas corpus, arguing his continued detention exceeded the constitutional limitation established in *NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs* [2023] HCA 37.

The central legal issue before the Court was whether ASF17's ongoing detention, necessitated by his refusal to cooperate in facilitating his removal to Iran, transgressed the constitutional limits on executive detention for immigration purposes as articulated in *NZYQ*. This required the Court to determine if there remained a real prospect of his removal to Iran becoming practicable in the reasonably foreseeable future, notwithstanding his non-cooperation.

The Court reasoned that a detainee cannot unilaterally create circumstances that negate the practicability of their removal by withholding consent or cooperation, particularly concerning removal to their country of origin. Applying this principle, the Court found that ASF17's refusal to cooperate in obtaining the necessary travel documents from Iranian authorities was the sole impediment to his removal to Iran. Given that he had the capacity to change his mind and cooperate, the primary judge's finding that there was a real prospect of his removal to Iran becoming practicable in the reasonably foreseeable future was upheld. Consequently, the Court concluded that ASF17's continuing detention did not exceed the constitutional temporal limitation on the valid application of ss 189(1) and 196(1) of the *Migration Act*.

The appeal was dismissed, and ASF17 was ordered to pay the costs of the Commonwealth.