AZC20 v Secretary, Department of Home Affairs (No 2)

In the case of AZC20 v Secretary, Department of Home Affairs (No 2), the applicant, an Iranian national, sought a writ of habeas corpus to challenge his continued detention under the Migration Act 1958 (Cth). The applicant, who had been refused a protection visa, contended that his detention was unlawful due to the impossibility of his removal to Iran and the impracticality of removal due to his risk of suicide and self-harm. The court was tasked with determining whether the provisions of the Act that authorised the detention were valid and whether the requirement for removal "as soon as reasonably practicable" could be fulfilled under the circumstances.

The central legal issues before the court involved the interpretation and application of sections 189, 196, and 198 of the Migration Act. The court needed to ascertain whether the applicant's detention was lawful under s 196, considering that he could not be removed to Iran or any other country. Additionally, the court had to determine whether the applicant's non-cooperation and the risk of suicide and self-harm rendered removal reasonably practicable. The court also examined whether an assessment document prepared by a departmental officer, which was not included in the final decision, constituted a "protection finding" under s 197C of the Act.

The court found that the statutory requirement for detention under s 196 was strict and unconditional, mandating that an unlawful non-citizen be detained until they are removed from Australia or granted a visa. The court held that the applicant's non-cooperation and the risk of suicide and self-harm did not preclude the requirement for removal. The court clarified that a "protection finding" under s 197C(3)(c)(i) must be part of the decision-making process and made by the delegate exercising the relevant power. It concluded that the assessment document, although detailed, was not a "protection finding" as it was not part of the decision maker's reasoning process. Consequently, the court ruled that the applicant's detention was unlawful and ordered his immediate release.

In light of the findings, the court issued a writ of habeas corpus requiring the respondents to release the applicant forthwith. The proceeding was also listed for case management on 5 December 2023, to address further procedural matters.