Carrascalao v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor

Helder Agapito Carrascalao, the plaintiff, sought orders including habeas corpus to end his immigration detention, arguing that his continued detention was unlawful. The plaintiff had been in detention since September 2017, following the cancellation of his visa under s 501(3) of the *Migration Act 1958* (Cth). He contended that sections 189(1), 196(1), and 198(2A) of the Act did not authorise detention where removal from Australia was not reasonably practicable or unlikely in the foreseeable future. Alternatively, he argued that these sections infringed Chapter III of the Constitution if they purported to authorise detention in such circumstances, seeking to challenge the High Court's decision in *Al‑Kateb v Godwin*. The defendants, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and the Commonwealth of Australia, sought summary dismissal of the application. The proceedings were before the High Court of Australia.

The central legal issues before the High Court were whether the plaintiff's detention was authorised by the *Migration Act* given the alleged practical impossibility or unlikelihood of his removal from Australia in the foreseeable future, and whether the Act infringed Chapter III of the Constitution to the extent it permitted such detention. The plaintiff sought to rely on the minority judgments in *Al‑Kateb v Godwin*, which suggested that indefinite detention without a real prospect of removal might be unconstitutional. The defendants argued that removal efforts were ongoing and that the plaintiff's lack of cooperation contributed to the lack of success, thus precluding a finding that removal was impracticable or unlikely.

The High Court, in a single Justice’s decision, found that there was a real question of fact to be determined regarding the practical likelihood of the plaintiff's removal from Australia. While acknowledging the defendants' recent intensified efforts to arrange removal to Timor-Leste or Portugal, the Court noted the plaintiff's prolonged detention and the lack of success in prior removal attempts, raising scepticism about the prospects of current efforts. The Court considered that the plaintiff's identity and circumstances were sufficiently known to the defendants, distinguishing the case from *Plaintiff M47/2018 v Minister for Home Affairs*. Given the need for substantial evidence and argument, including potentially expert evidence, to resolve these factual disputes, the Court determined that a hearing before a single Justice of the High Court was not convenient.

Consequently, the High Court ordered that the matter be remitted to the Federal Court of Australia pursuant to s 44 of the *Judiciary Act 1903* (Cth). A judge of the Federal Court was directed to determine the issue of whether, as a matter of reasonable practicability, the plaintiff's removal from Australia was unlikely in the foreseeable future, or if there was no real likelihood or prospect of his removal in the reasonably foreseeable future. The costs of the hearing on 5 October 2022 were reserved.