GMZ18 v Minister for Immigration, Citizenship and Multicultural Affairs - [2024] FedCFamC2G 335

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GMZ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 335

File number(s): SYG 599 of 2024

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 17 April 2024

Catchwords: MIGRATION – application for a mandatory injunction and a writ of habeas corpus requiring the release of the applicant from immigration detention – whether the applicant’s detention was reasonably necessary to give effect to the purposes for which respondents contended it was necessary for the applicant to remain in custody – applicant’s detention was not reasonably necessary – order for release made.

Legislation:
Constitution (Cth) ss 51(xix), 75(v)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 140(b)

Judiciary Act 1903 (Cth) ss 44(1), 78B(1)

Migration Act 1958 (Cth) ss 5, 13, 14, 48A, 48B, 54L, 54L(2), 54N, 54P, 54R, 88(8), 189(1), 198(5), 195, 195A(2), 195AB(1), 196(1), 197C(2), 198(5), 198(5A), 474, 476(1), 501(3A), 510(3A)

High Court Rules 2004 (Cth) rr 25.16.2, 48

Cases cited:
AKW22 v Commonwealth [2023] FCA 71

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd & Ors [1999] FCA 1151

Australian Securities Commission v Melbourne Asset Management Nominees Pty Ltd [1994] FCA 1031

Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

CPCF v Minister for Immigration and Border Protection [2015] HCA 1

Mokhlis v Minister for Home Affairs [2020] HCA 30

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

Plaintiff M76-2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53

Plaintiff S4-2014 v Minister for Immigration and Border Protection [2014] HCA 34

R v Cook; Ex parte Twigg [1980] HCA 36

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57

Division: General

Number of paragraphs: 89

Date of hearing: 12 April 2024

Place: Sydney

Counsel for the Applicant: Dr C Ward SC and Ms M Bridgett

Solicitor for the Applicant: Human Rights For All

Counsel for the Respondents: Mr P Knowles SC and Mr A Hall

Solicitor for the Respondents: Australian Government Solicitor
ORDERS

SYG 599 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
GMZ18

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

SECRETARY OF DEPARTMENT OF HOME AFFAIRS

Second Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

17 APRIL 2024

THE COURT ORDERS THAT:
1.The respondents’ application for an adjournment is dismissed.
2.The applicant be immediately released from immigration detention.
3.Subject to order 4, the respondents pay the applicant’s costs.
4.The parties have liberty to apply within 35 days after the pronouncement of these orders to vary or discharge order 4 3.

THE COURT NOTES THAT:
5.These Orders have been amended pursuant to r 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

On Monday 8 April 2024 there came before me as duty judge an application for a writ of habeas corpus, or an application for relief in the nature of habeas corpus; and an injunction retraining the respondents (collectively Minister) from detaining the applicant purportedly pursuant to s 189(1) of the Migration Act 1958 (Cth) (Migration Act). I ordered that the application be set down for hearing at 10:15 am on Friday 12 April 2024, and I made a direction for the filing of evidence.
At the commencement of the hearing on 12 April 2024, the Minister applied for an adjournment of seven days; and he did so for two reasons. The first was to provide the applicant time to consider whether he should apply for a protection visa. The need for the applicant to consider that question arose from the Minister, on 11 April 2024, making a decision under s 48B of the Migration Act that s 48A not apply to prevent the applicant from making a further application for a protection visa. The applicant, in the circumstances I set out later in these reasons, had previously applied for, but had been refused, the grant of a protection visa; and he had withdrawn his application before he had exhausted all avenues of merits review and judicial review.
The second reason for which the Minister applied for an adjournment is to provide time for the serving of notices (78B notices) under s 78B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act). The need to issue 78B notices arises, the Minister submitted, from submissions his counsel said he intended to make about the application to a novel set of circumstances the judgments of the High Court of Australia in Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs and NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.[1]
[1] Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
The applicant opposed my adjourning the hearing of the application.
After hearing submissions I decided that I would reserve my judgment on the Minister’s application for an adjournment, and hear the application for relief on the assumption that the Minister’s application for adjournment would not be granted. I so decided because I sensed that the issues that were relevant to the proper exercise of the discretion whether to adjourn overlapped with the substantive issues that were likely to arise on the applicant’s application for substantive relief. In particular, I sensed that the merits of the grounds on which the Minister sought an adjournment turned, at least to a substantial extent, on my accepting, or at least my accepting as being arguable, a number of contentions counsel for the Minister intended to advance about the application of the judgments of the High Court in Lim and NZYQ to what the Minister submitted were novel circumstances.
At the conclusion of the hearing on 12 April 2024, I reserved my judgment, both on the Minister’s application for an adjournment and, in the event I were to refuse the adjournment, on the applicant’s claims for relief; and I listed the matter for judgment at 9:30 am on 17 April 2024. At that time, I pronounced orders, noting that although I had a completed a draft of my reasons for pronouncing those orders, I required further time to bring the draft into publishable form. These reasons for judgment are the final form of the draft reasons for judgment on the basis of which I pronounced my orders on 17 April 2024. For ease of expression, I have not altered the draft to reflect the fact that these reasons for judgment will be published after I pronounced my orders.
Before I consider the Minister’s application for an adjournment, I will set out the facts out of which the application to this Court has been made, identify the source of this Court’s jurisdiction to hear the application, consider the effect of the judgments in Lim and NZYQ; and set out the respective cases of the applicant and the Minister.
BACKGROUND
The applicant’s detention
The applicant is a national of Iran. He arrived in Australia in 2006 as the holder of a Class TO-Subclass 300 (Prospective Marriage) Visa. In 2007 the applicant married in accordance with the rites of the Baha’i faith; and, in 2009, he was granted a Class BS-801 (Permanent Spouse) visa (Spouse visa).
In May 2016 the Minister cancelled the Spouse visa pursuant to s 501(3A) of the Migration Act (First Cancellation). That occurred as a consequence of the applicant’s having been sentenced to imprisonment of four years and six months following his conviction of offences relating to the manufacture of an indictable quantity of a prohibited drug, and exposing a child to prohibited drugs. As a consequence of the First Cancellation the applicant, being a non-citizen in the “migration zone” (as that term is defined in s 5 of the Migration Act) did not hold a visa that was in effect and, therefore, was not a lawful non-citizen within the meaning of s 13 of the Migration Act. Not being a lawful non-citizen within the meaning of s 13, meant that the applicant was, and currently is, an “unlawful non-citizen”, within the meaning of s 14 of the Migration Act.
The applicant’s change of status from a lawful to an unlawful non-citizen engaged at least two provisions of the Migration Act. One is s 189(1), which provides that if “an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person”. A second provision is s 198(5) of the Migration Act, which provides:
An officer must remove as soon as reasonably practicable an unlawful non‑citizen if the non‑citizen:
(a) is a detainee; and
(b)neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;
regardless of whether the non‑citizen has made a valid application for a bridging visa
Section 195 of the Migration Act provides:
(1) A detainee may apply for a visa:
(a)within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b)if he or she informs an officer in writing within those 2 working days of his or her intention to so apply—within the next 5 working days after those 2 working days.
(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
On 18 October 2016 a delegate of the Minister decided not to revoke the First Cancellation. The applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision not to revoke the First Cancellation. After a number of proceedings before the Tribunal and this Court, on 30 August 2019 the Tribunal set aside the delegate’s decision not to revoke the First Cancellation, and itself revoked the First Cancellation.
In the meantime, in early 2017 the applicant applied for a XA-866 (Permanent Protection) visa (Protection visa); and about one month later the applicant was transferred from prison to immigration detention pursuant to s 189(1) of the Migration Act. Having made what may be inferred was a valid application for the Protection visa, s 198(5A) of the Migration Act applied:
Despite subsection (5), an officer must not remove an unlawful non‑citizen if:
(a)the non-citizen has made a valid application for a protection visa (even if the application was made outside the time allowed by subsection 195(1)); and
(b)       either:
(i)        the grant of the visa has not been refused; or
(ii)       the application has not been finally determined.
The applicant remained in immigration detention until 30 August 2019 when the Tribunal revoked the First Cancellation.
In September 2017 a delegate of the Minister refused to grant the applicant a Protection visa. The applicant applied for a review of the delegate’s decision; but in October 2019, after he was released from immigration detention, the applicant withdrew his application for a Protection visa.
In November 2020 the applicant was arrested and held on remand; and in April 2021 the applicant was convicted of various offences relating to, among other things, housebreaking and drugs. The applicant was sentenced to imprisonment for a term of four years and six months, but in October 2021 the aggregate sentence was varied to two years and four months.
In June 2021 the Minister against cancelled the Spouse visa under s 510(3A) of the Migration Act (Second Cancellation). The applicant made representations seeking revocation of the Second Cancellation, but, in August 2022, a delegate of the Minister decided not to revoke the Second Cancellation. The applicant applied to the Tribunal for review of the delegate’s decision, but in November 2022 the Tribunal affirmed the delegate’s decision. In the course of considering the applicant’s application for review, the Tribunal found that the applicant was owed non-refoulement obligations on the basis of his Baha’i faith:[2]
The protection visa decision record . . . found that since the 1979 Islamic Revolution in Iran, Baháʼís have been systemically persecuted as a matter of government policy but because of the applicant’s “low profile” the delegate was not satisfied that there was a real chance of persecution or that he was owed non-refoulement obligations. I consider that the situation for Baha’is has worsened since that decision in 2017 and in particular it has worsened for members of the applicant’s family in Shiraz which, understandably, is where the applicant would settle if returned to Iran. I accept the applicant would be easily identified as a Baháʼí in Iran. I am satisfied that because of the worsened situation in Iran that the applicant would be at risk of harm and as a result, that he is owed non-refoulement obligations. This is a factor that weighs in favour of revoking the cancellation decision.
[2] Affidavit of A M Battisson 08.10.2024, Exhibit AMB1-08 (CB582, at 610-611)
As a consequence of the Second Cancellation, s 189(1) and s 198(5) of the Migration Act were engaged.
While in immigration detention, the applicant was the subject of case reviews (SRO reviews) by officers of the Minister’s Department (Department) known as Status Resolution Officers (SRO). The intended purpose of SRO reviews is to ascertain and report on a detainee’s current immigration status. An SRO review considers why a person is in detention, and whether the person is required to remain in detention; what “case objective” applies to the detainee (for example the removal of the detainee from Australia); whether the detainee has any particular vulnerabilities; and whether there are any upcoming events relevant to the detainee’s detention. The most recent SRO review of the applicant was conducted on 14 March 2024.
The SRO who is currently assigned to the applicant has made an affidavit in which she has deposed as follows:
Since 19 December 2023, I have been satisfied (and am still satisfied) on the basis of the information I reviewed in the Departmental Records and the details about the applicant that I have set out above that:
16.1. the applicant is not an Australian citizen;
16.2. the applicant is not an Aboriginal or Torres Strait Islander within the meaning of the tripartite test referred to in Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 70;
16.3. the applicant is currently in the migration zone; and
16.4. the applicant does not hold a visa that is in effect.
Events after 8 November 2023 when orders made in NZYQ
On 8 November 2023 the High Court of Australia in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs made an order, with reasons to be delivered at a later time, stating answers to each of the questions of law stated for its consideration in a special case that was formulated in response to an application brought by a person held in immigration detention challenging the validity of his detention. One of the answers related to the relief that should be granted, given the answers the High Court had given to earlier answers. The answer was as follows:
(1) It is declared that, by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future:
(a) the plaintiff's detention was unlawful as at 30 May 2023; and
(b) the plaintiff's continued detention is unlawful and has been since 30 May 2023.
(2) A writ of habeas corpus issue requiring the defendants to release the plaintiff forthwith.
The High Court published its reasons for judgment on 28 November 2023.[3]
[3] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
On 8 November 2023 the lawyer for the applicant sent the following email to the Department:
I refer to the decision in NZYQ v Minister of Immigration, Citizenship and Multicultural Affairs & Anor (NZYQ) handed down today by the High Court of Australia.
NZYQ provides that the administrative detention of a person who has “no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future” is unlawful.
[The applicant] is such a person. [The applicant] is a recognised refugee from Iran. He has no right to reside in any other country. As [the applicant] has a criminal record, there is no prospect that a third country would accept him for resettlement.
As such, [the applicant] must be released immediately. If he is not released by 9am 9 November 2023, or his legal representatives are not informed that he will be released imminently by that time, we will commence habeas corpus proceedings.
The Department responded by letter dated 10 November 2023 which stated that the Minister had “stated that individuals impacted by the High Court’s orders in NZYQ . . . will be released from detention”; and the Department “is in the process of confirming who is in the affected cohort of individuals, and arranging for their release”. The letter further stated that “[t]his work is being done urgently and affected individuals will be released as soon as possible”.[4]
[4] CB709
On 14 November 2023 the applicant’s lawyer sent a letter to the Department in which she stated that on 3 November 2022 the Tribunal found non-refoulement obligations were owed to the applicant because of the worsened situation in Iran, which meant that the applicant would be at risk of harm; that given the applicant had previously applied for a protection visa which had been finally determined, he is unable to apply for another protection visa; the applicant has no right to reside in any country other than Iran; and, given his criminal record, there is no evidence that any country would be willing to accept him for resettlement. In those circumstances, the applicant’s lawyer said that there is no real prospect of removing the applicant in the reasonably foreseeable future and, therefore, he must be immediately released. The applicant’s lawyer further stated that unless the applicant is released by 9 am on 16 November 2023, the applicant’s lawyer would seek instructions to apply for a writ of habeas corpus.[5]
[5] CB710
On 4 January 2024 a case officer situated within the Department’s “International Obligations & Complex Cases Section” completed a minute which contained a “protection obligations review” in relation to the applicant (Removal Assessment).[6] The Removal Assessment:
(a)noted that the applicant is “on an involuntary removal pathway to Iran”, and has been referred “for this PRC under risk factor 3 (finalised criminal charged in Australia)”, and the officer has also considered the applicant “under risk factor 2 (unresolved protection issues) due to updated country information”;
(b)set out the applicant’s immigration and criminal history;
(c)considered, under the heading “Protection obligations review”, whether the applicant is owed any non-refoulement obligation; and in that section identified country information about the treatment of the Baha’i minority in Iran, concluding that the applicant, “based on his religion, would likely be at a real risk of harm if he returned to Iran on account of the recent and sustained of the Baha’i minority”; and
(d)there is no credible evidence the applicant has attracted the adverse attention of the Iranian authorities.
[6] This document was annexed to an affidavit the applicant’s solicitor made on 15 April 2024 which was provided to my Associate on 16 April 2024. The Minister’s lawyer provided the document to the applicant’s lawyer in response to a call made by counsel for the applicant at the hearing on 12 April 2024 for the production of a document counsel for the Minister described as a “removal assessment”. I have marked in chamber as exhibit C the applicant’s lawyer’s affidavit.

The Removal Assessment concluded as follows:
I am satisfied, based on country information and [the applicant’s] personal circumstances, his involuntary return as planned to Iran would likely result in breach of Australia’s non-refoulement obligations. As such, I find [the applicant’s] circumstances require further assessment and his case should be referred for Ministerial Intervention under section 48B of the Act to allow him to lodge a further PV application.
A manager indicated his agreement with this assessment on 19 January 2024; and the director agreed with this assessment on 4 March 2014.
In the meantime, the Department responded to the applicant’s lawyer’s email of 14 November 2023 by letter dated 7 February 2024, in which the following was stated:[7]
The Department considers that your client’s position is distinguishable from that of the plaintiff in NZYQ. We understand that [the applicant] does not wish to be returned to Iran, which is the only country to which he has a legal right of return. We are instructed that [the applicant] is uncooperative with the Department’s efforts to obtain a passport or travel document for him. In circumstances where our instructions are that Iran does not accept involuntary returnees, the Department has been unable to remove him.
This is a case where, unlike the plaintiff in NZYQ, [the applicant] has ‘contributed to the frustration of lines of inquiry by officers of the Department attempting to bring about the person’s removal’ (see [2023] HCA 37 at [62]).
The Department has also considered the recent Federal Court decision of ASF17v Commonwealth of Australia [2024] FCA 7 at [60], in which Colvin J held 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’. Justice Colvin held, contrary to the reasoning of Kennett J in AZC20 v Secretary, Department of Home Affairs (No 2) [2023] 1497, that the limit identified in NZYQ at [62] is not confined to cases where an unlawful non-citizen embarks on a ‘deliberate strategy’ of preventing removal from Australia.
The Migration Act 1958 (Cth) (Migration Act) requires that your client be detained for the purpose of removing him from Australia. We are instructed that your client’s refusal to cooperate is the determinative barrier to his removal. The Department’s efforts to fulfil the duty to remove your client under s 198 of the Migration Act have so far been frustrated by your client’s lack of cooperation.
In those circumstances, [the applicant] must remain in immigration detention until he can be removed. The Department encourages [the applicant] to cooperate with removal efforts so that the process can be completed as quickly as possible.
[7] CB711
There is evidence about the circumstances in which Iran accepts the return of its nationals, and the procedures that are followed for this to occur; and I will refer to this evidence later.
On 1 March 2024 the applicant’s lawyer responded to the Department’s letter of 7 February 2024.[8] The applicant’s lawyer stated it was not correct that the applicant had refused to cooperate, and that any such failure to co-operate “is the determinative barrier to his removal”. The applicant’s solicitor stated the applicant cannot be removed to Iran “due to being owed non-refoulment obligations and because he does not have an Iranian travel document”. The applicant’s lawyer also stated there was “no current evidence that Iran would grant [the applicant] a travel document”, and that the situation of the applicant are “on all fours with that of the applicant in Adam v Secretary of Home Affairs [2024] FedCFamCG2 179”.
[8] CB713
On 5 March 2024 a lawyer for the Minister sent an email to the applicant’s lawyer in which he stated that the Minister is considering the applicant’s circumstances “in the context of Judge Mansini’s reasoning in David and Adam”, and that this “is occurring as quickly as possible”.[9] On 15 March 2023 a lawyer for the Minister sent the following email to the applicant’s lawyer:[10]
Unfortunately it is difficult to provide a precise timeframe for a response to your email of 5 March 2024. However, we are instructed that the Department expects to be in a position to respond within 2-3 weeks. Separately, we are instructed that the Department is also progressing consideration of [the applicant’s] circumstances, including considering whether to recommend to the Minister that they exercise the power under s 48B of the Migration Act 1958 (Cth) to ‘lift the bar’ such that your client could lodge a further application for a protection visa and whether to recommend to the Minister that they exercise the power under ss 195A/197AB of the Migration Act 1958 (Cth). No first-stage decision has been made by the Minister on those questions. We will inform you when we receive instructions on that subject.
[9] CB704-705
[10] CB703. Subsection 195A(2) of the Migration Act provides that the Minister may grant a person who is detention pursuant to s 189 a visa of a particular class, whether or not the person has applied for the visa. Subsection 195AB(1) provides that the Minister may make “residence determination” in relation to persons who are permitted of the Migration Act to be detained pursuant to s 189
On 3 April 2024 the Department provided a submission (48B submission) to the Minister recommending that he exercise his power under s 48B of the Migration Act in relation to the applicant. The 48B submission:[11]
(a)noted that the applicant is being referred to the Minister’s consideration because the Department has determined the applicant’s “involuntary removal to Iran would prima facie be in breach of Australia’s non-refoulement obligations based on new country information indicating that due to his Baha’i religion, he would likely be at a real risk of harm if returned to Iran”;
(b)the applicant is barred by s 48A of the Migration Act from making a further valid application for a protection visa while he remains in the migration zone; and this means that the applicant “is therefore unable to have the new country information that relates to his fear of harm as a result of his Baha’i faith and criminal convictions assessed through the statutory PV process unless you exercise your power under section 48B of the Act”;
(c)if the applicant is found to engage Australia’s protection obligations, he will be required to meet health, character, and security requirements to be eligible for the grant of a protection visa, but if he is refused a protection visa “under any of the character provisions, he will still have a ‘protection finding’ for the purposes of subsection 197C(3) of the Act which will relieve the duty to remove him to Iran.
[11] The 48B submission was sent to my associate’s inbox on 16 April 2024, after which through my Associate I informed the parties that, subject to any objection, I would consider the document. There was no objection. I have marked in chambers the 48B submission as exhibit “D”
On 4 April 2024 a lawyer for the Minister sent the following email to the applicant’s lawyer:[12]
Thank you for your time on the phone today.
By way of update, my instructions are that a ‘first stage submission’ for the Minister to decide whether he wishes to consider exercising his powers under ss 195A or 197AB in relation to [the applicant], was sent to the Minister’s office on 19 March 2024.
I am also instructed that today a submission was provided to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to consider whether to exercise his power under s. 48B of the Act to permit your client to validly lodge a further protection visa application in Australia.
In answer to your query, I confirm that your client was interviewed by his status resolution officer on 3 April 2024. The engagement was to discuss his ‘immigration pathway’, which included discussion of family and friends in Australia.
[12] CB715
By letter dated 11 April 2024 (48B Notification) an officer of the Department stated:
I am writing to advise you of the outcome of your request for Ministerial Intervention for:

Client name Date of birth

[The applicant] . . . .
You are invited to apply for a Protection (subclass 866) visa.
The Department of Home Affairs referred your request for Ministerial Intervention for possible consideration under section 48B of the Migration Act 1958 (the Act) to the Minister for Immigration, Citizenship and Multicultural Affairs to allow you to make a valid application for a protection visa.
Section 48A bar lifter
Under section 48B of the Act, the Minister may allow a person to make a further application for a protection visa if the Minister considers it is in the public interest to do so. The Minister has decided that it is in the public interest to allow you to lodge a valid application for a Protection (subclass 866) visa.
When to apply
If you wish to apply for a Protection (subclass 866) visa your application must be received by the Department at the address below within 7 (seven) working days of receiving this letter.
If you do not lodge a valid application for a protection visa within the specified period, you will not be allowed to apply again for a protection visa while you are in Australia.
As this letter was sent by mail to an address in Australia, you are taken to have received it seven (7) working days after the date of the letter. A working day does not include weekends or public holidays in the Australian state or territory to where this letter was posted.

The return of Iranian nationals to Iran

As I have noted above, there is evidence that explains the circumstances in which Iran receives the return of its nationals, and the procedures that are followed for this to occur; and it is contained in an affidavit made by Mr Nette on 11 April 2024.[13] Mr Nette holds the position of Inspector of the Consulate Engagement and Liaison Team which forms part of the Removal Operations Branch within the Australian Border Force. Mr Nette distinguishes between voluntary and involuntary removals. The circumstances and procedures for the voluntary return to Iran are as follows:[14]
[13] CB734
[14] CB736-737
13.Where an Iranian national has requested to be voluntarily removed to Iran, they will require a Laissez Passer (a travel document issued by Iran), which requires approval from the Iranian Ministry of Foreign Affairs (MFA).
14. Iranian nationals being removed to Iran voluntarily require a Laissez Passer in order to enter back into Iran. An Iranian national trying to enter into Iran without a Laissez Passer would be denied entry.
15. The general process in obtaining a Laissez Passer from the Iranian authorities is:
15.1. providing the below documentation to the Iranian Embassy:
15.1.1. a completed and signed Laissez Passer application form;
15.1.2.original Iranian identity documents. If original identity documents cannot be provided, copies are to be provided with the application and approval will need to be granted by the MFA in Iran before submitting the application to the Embassy;
15.1.3.a hand-written letter from the individual written in their native language (usually Farsi);
15.1.4 a current passport photo;
15.1.5. a flight itinerary to Iran;
15.2. payment of a $34.00 fee to the Embassy for the service; and
15.3. the individual is required to participate in a telephone interview with the Embassy prior to the Laissez Passer being issued.
. . . .
17. To lodge an application and obtain a Laissez Passer, original identity documents are required to be sighted by an official in the Iranian Embassy in Australia. Where an application is submitted with copies of identity documents, the original identity documents must have been sighted by an official at a MFA office in Iran and obtain an MFA number (Multi-factor authentication which confirms or certifies a person's identity), before the application will be accepted. Identity documents which have been successfully used to obtain a Laissez Passer include Iranian drivers’ licences (including those which have expired), Iranian passports, Iranian National Identity cards and Iranian birth certificates.
18. . . . the period between the filing of the application form until the issue of a Laissez Passer by the Iran Embassy can be up to approximately 12 weeks. Some cases may take longer than others, as there may be some delays in arranging an interview with the Iranian authorities.
19. . . . an application for a Laissez Passer (where an individual is voluntarily being removed) has never been refused by the Iranian authorities, where identity documents (in the form . . . described at [17] above) have been provided.
The effect of the evidence concerning the involuntary return to Iran may be shortly stated: Iran does not issue a Laissez Passer to an individual who is “an involuntary”.
Mr Nette expressed an opinion about whether the applicant would be able to obtain the approval of the Iranian MFA is he applied for one. Mr Nette has done so after he reviewed the identity documents the Department holds in the files it maintains in relation to the applicant. The identity documents consist of a certified extract from the applicant’s Iranian passport.[15] Mr Nette then expresses the following opinions:
26.I have reviewed the image of the certified copy of the applicant’s Iranian passport. In my experience, this form of identity document would suffice for the purposes of the process I describe at [15] above for obtaining a Laissez Passer from the Iranian authorities.
27.In my view, the applicant should be able to obtain a Laissez Passer through the Iranian Embassy provided an original copy or a copy of the document set out in JN-02, and cooperated with the requirements outlined at [15] above.
[15] CB738, [25]; CB745
JURISDICTION
The jurisdiction of this Court (this Court) in relation to matters arising under the Migration Act is conferred by s 476(1), which provides:
Subject to this section, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
The expression “migration decision” is defined in s 5(1) of the Migration Act to mean, among other things, “a privative clause decision”; or “a purported privative clause decision”; or a “non-privative clause decision”. The expression “privative clause decision” is defined in s 474(2) to mean:
a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
Subsection 474(3) of the Migration Act provides that a reference in s 474 to “a decision” includes a reference to the following:
(a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d)imposing, or refusing to remove, a condition or restriction;
(e)making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article;
(g)doing or refusing to do any other act or thing;
(h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j)a failure or refusal to make a decision.
There can be no doubt that the applicant’s having been placed in detention, and the Minister’s refusing to release the applicant from detention, constitutes a “decision”, at least within the meaning of s 474(3)(g) of the Migration Act; and that such “decision”, being purportedly based on s 189 and s 198(5) of the Migration Act, is a “migration decision”. The next question is whether the jurisdiction conferred on the High Court by s 75(v) of the Constitution, and therefore the jurisdiction conferred on this Court by s 476, extends to the conferral of power to issue a writ of habeas corpus.
Paragraph 75(v) of the Constitution provides that the High Court shall have original jurisdiction in “all matters” “in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth”. The High Court’s jurisdiction under s 75(v) is engaged solely by a plaintiff’s applying in the High Court against an “officer of the Commonwealth” for one or more of the three forms of relief provided for by s 75(v) of the Constitution, namely, a writ of mandamus or prohibition, or an injunction (75(v) remedies). The High Court’s jurisdiction, therefore, extends to all circumstances in which 75(v) remedies are available to be granted. The power of the High Court to order a remedy, however, once a plaintiff properly invokes its jurisdiction by applying for a writ of mandamus or prohibition, or for an injunction, is not limited to the granting of the 75(v) remedies.[16] The High Court’s power to grant remedies, once its jurisdiction under s 75(v) has been invoked, extends to other remedies. The High Court so held in relation to the writ of certiorari;[17] and in Re Refugee Review Tribunal; Ex parte Aala, Gaudron and Gummow JJ explained the circumstances and purposes for which the High Court could issue such writ, once its jurisdiction under s 75(v) of the Constitution has been properly engaged:[18]
The power of this Court to issue certiorari is not stated in Ch III of the Constitution. Rather, in a matter such as the present, the conferral of jurisdiction to issue writs of prohibition and mandamus implies ancillary or incidental authority to the effective exercise of that jurisdiction. In the circumstances of this matter, that includes authority to grant certiorari against the officer of the Commonwealth constituting the Tribunal.
[16] “In these reasons the word “jurisdiction” is used to describe the authority which a court has to decide matters that are litigated before it. The word power is used to describe the method by which a court exercises jurisdiction conferred upon it.” - Australian Securities Commission v Melbourne Asset Management Nominees Pty Ltd 1994] FCA 1031, at [39] (Northrop J)
[17] R v Cook; Ex parte Twigg [1980] HCA 36
[18] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57, at [13]
In Mokhlis v Minister for Home Affairs Edelman J considered whether the jurisdiction s 476 of the Migration Act confers on this Court extends to granting the power to issue a writ of habeas corpus.[19] His Honour considered that question in determining whether to make an order under s 44(1) of the Judiciary Act to remit to this Court an application that was made in the original jurisdiction of the High Court for relief, which included an application for a writ of habeas corpus. Edelman J said:[20]
Section 476(1) of the Migration Act confers upon the Federal Circuit Court, subject to exceptions, the same original jurisdiction in relation to migration decisions “as the High Court has under paragraph 75(v) of the Constitution”. Although s 75(v) might more appropriately be described as confirming or entrenching jurisdiction to exercise the named prerogative and equitable remedies rather than creating a new species of power, the reference to “under paragraph 75(v)” in s 476(1), in context, must have been to all remedies exercisable by the High Court which relate to s 75(v), not merely those named in s 75(v). When the Migration Litigation Reform Act 2005 (Cth) repealed the existing s 476 and inserted s 476(1) in its current form, the Explanatory Memorandum provided that the purpose of the amendments was to "direct nearly all migration cases to the [Federal Circuit Court], to limit the Federal Court's original jurisdiction in relation to migration cases, and to direct migration cases remitted by the High Court to the appropriate lower court".
Section 476(1) must have been intended not merely to pick up claims for writs of prohibition and mandamus and injunctions which are mentioned in s 75(v) but also to pick up those remedies which, at the time s 476(1) was introduced, had been described by this Court as “ancillary” or “incidental”, at least in the sense of being necessary for the effective operation of s 75(v) remedies and potentially available even if none of the relief in s 75(v) was granted. It suffices, in the absence of any controversy, to proceed upon two assumptions: first, that jurisdiction for the claim for a writ of habeas corpus, which could have been otherwise brought as an application for an injunction and in the words of Mr Barton might be “equally necessary”, is implied on the basis that the writ is ancillary or incidental to the effective exercise of jurisdiction to order an injunction against an officer of the Commonwealth under s 75(v); and secondly, that the declarations sought can also be seen as ancillary or incidental remedies to the injunctions. . . .
[19] Mokhlis v Minister for Home Affairs [2020] HCA 30
[20] Mokhlis v Minister for Home Affairs [2020] HCA 30, at [13] and [14] (footnotes omitted)

On this analysis, s 476 of the Migration Act confers on this Court jurisdiction to issue a writ of habeas corpus as an ancillary exercise of jurisdiction, in the sense of its “being necessary for the effective operation of s 75(v) remedies and potentially available even if none of the relief in s 75(v) was granted”. That implies that before it may entertain an application for a writ of habeas corpus, this Court must identify which of the 75(v) remedies is the subject of the application before it; and, when determining whether it should issue a writ of habeas corpus, the Court must consider whether it is necessary to do so for the effective operation of the 75(v) remedy or remedies for which the applicant applies. Edelman J’s analysis in Mokhlis also implies that the expressions “writ of habeas corpus” and “issue a writ of habeas corpus” have a clear meaning.
The expressions “writ of habeas corpus” and “issue a writ of habeas corpus” may denote a number of things. At its narrowest, a “writ of habeas corpus” denotes a particular written order issued under the authority of a court requiring a person who holds another person in detention to bring before the court the body of the person who is detained for the purpose of the court inquiring into the lawfulness of the person’s detention. Lord Justice Wilmot, in the Opinion on the Writ of Habeas Corpus he delivered to the House of Lords in 1758, described the writ of habeas corpus as:[21]
a remedial Writ, by which the King’s supreme Court of Justice, and the Judges of that Court, at the instance of a subject aggrieved, commands the production of that subject, and inquires after the Cause of his Imprisonment; and it is a Writ of such a sovereign and transcendent authority, that no privilege of person or place can stand against it.
[21] House of Lords [1802] EngR 17; (1802) Wilm 77; 97 ER 29, at page 36
A modern illustration of a writ of habeas corpus is provided by the High Court Rules 2004 (Cth) (High Court Rules):[22]
KING CHARLES THE THIRD, by the Grace of God, King of Australia and his other Realms and Territories, Head of the Commonwealth:
To: [name]
[address]
HAVE the plaintiff [or name of person detained] before Justice [name] at [address of Court] at [time] on [date] and thereafter to submit to the further order of the Court or a Justice as to the custody of that person (the detainee).
YOU ARE REQUIRED to make a return to this Writ by filing an affidavit deposing to the ground or grounds of detention of the detainee and serving a copy on the plaintiff on or before the time referred to above.
TAKE NOTICE that disobeying this Writ is a contempt of Court which may be punished by imprisonment, fine or both.
[22] Form 16. This form is provided for by r 25.16.2 of the High Court Rules 2004 (Cth)
The rules governing the procedure of this Court do not prescribe a form that answers the description of a writ of habeas corpus; and the rules do not provide for the issue of any such writ.[23] Section 140(b) of the Federal Circuit and Family Court of Australia 2021 (Cth), however, confers on this Court jurisdiction to “issue, or direct the issue of, writs of such kinds as the Court considers appropriate”. This is broad enough to authorise this Court to grant a writ of habeas corpus in a matter that is otherwise within its jurisdiction, and where there are grounds for the issue such writ.
[23] The relevant rules are the Federal Circuit and Family Court of Australia (Divisions 2) (General Federal Rules) 2021 (Cth).
The expression the “issue of a writ of habeas corpus” denotes the judicial act, namely, the making of an order, that constitutes a court’s authority for the issuing of the writ.
Used in these limited senses, the expressions “writ of habeas corpus” and the “issuing of the writ of habeas corpus” refer to a particular, although illustrious, mechanism or set of mechanisms by means of which a court with jurisdiction may rule on the lawfulness of a person’s detention and, if the court adjudges there is no lawful justification for the detention, order the release of that person from detention. The expressions “writ of habeas corpus” and the “issuing of the writ of habeas corpus”, however, are more often used to denote the large body of principles that govern the circumstances in which, and the means by which a court may inquire into the lawfulness of a person’s detention, and the principles and practice courts apply and follow in determining whether the detention is lawful. Most of these principles were developed in the context of procedural rules that applied to the grant of prerogative writs that no longer form part of the procedure of most courts that have jurisdiction to grant writs of habeas corpus. It was a feature of these rules, however, that a court could make, and often did make, orders on an application for a writ of habeas corpus to discharge a person from detention without issuing any writ.[24] That feature is present in r 25.16.1 of the High Court Rules:
[24] See, for example, Or 55 r 48 of the High Court Rules 1952 (Cth), which provided that where an order to show cause has been made the High Court or a Justice could, on the return of the order, discharge the person in detention without the issue of a writ of habeas corpus
On application for a writ of habeas corpus, the Court or a Justice may order:
(a)the production of a detained person, for the purposes of that person’s examination as a witness; or
(b) the release or other disposition of a person;
without issuing a writ of habeas corpus.
Thus, to say that, in the exercise of its jurisdiction under s 476(1) of the Migration Act, this Court has power to grant a writ of habeas corpus, may be taken to mean that, to the extent it is necessary for the effective operation of any one or more of the 75(v) remedies for which an applicant applies, the Court may have regard and apply the rules, procedures, and practices that have attended applications for writs of habeas corpus. It may be that this adds little of substance to the rules, practices, and procedures that attend the granting of the 75(v) remedies, including the relatively little explored remedy of injunction. The 75(v) remedies may be considered to be adequate to deal with any alleged unauthorised acts of officers of the Commonwealth, including acts that consist of the unauthorised detention of persons purportedly pursuant to s 189 or s 198 of the Migration Act.
Onus of proof
The parties agree that the principles relevant to the granting of a writ of habeas corpus are those stated by the Full Federal Court in AKW22 v Commonwealth.[25] Relevant to the issues before me are the following principles:
[A]n applicant carries “at least an initial evidentiary burden of establishing that there is reason to suppose that [his or her] detention has ceased to be lawful”: Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285 at 300 [39] per Kiefel CJ, Keane, Nettle and Edelman JJ. In Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54 at 97 [176], Black CJ, Sundberg and Weinberg JJ held that: “it is for the applicant to adduce evidence that puts in issue the legality of detention, and then the burden shifts to the respondent to show that detention is lawful, and may be discharged on the balance of probabilities”.
. . . .
Thus, there must be some probative material put before the court to warrant it considering the application for the issue of the writ nisi. In addition, the applicant’s contentions must not be vexatious or fanciful: McHugh 283 FCR at 663 [273] per Mortimer J.
[25] AKW22 v Commonwealth [2023] FCA 71, at [12], [16]
PRINCIPLES GOVERNING RELEASE
Having considered the question of jurisdiction, I now turn to the principle that govern whether the applicant’s detention is lawful. Those principles are to be found in the judgments in Lim and in NZYQ.
Lim
In Lim there was referred for the consideration of the High Court the question whether s 54L, s 54N, s 54R, or s 88(8) of the Migration Act were invalid. Subsection 54L(1) provided that, subject to s 54L(2), a “designated person” “must be kept in custody”. Subsection 54L(2) provided that a “designated person” “is to be released from custody if, and only if, he or she is; (a) removed from Australia under section 54P; or (b) given an entry permit”. Subsection 54N required an officer detain a designated person who is not in custody, and take reasonable action to ensure the person is kept in custody for the purposes of s 54L. Subsection 54R provided that a “court is not to order the release from custody of a designated person”. All justices held that s 54L and 54N were valid; and a majority (Brennan, Deane and Dawson JJ, and Gaudron J) held that s 54R was invalid.
Relevant to this proceeding are the principles the justices accepted and applied in concluding that s 54L and s 54N of the Migration Act were valid; and it would be sufficient if I refer to the following elements of the judgment of Brennan, Deane and Dawson JJ.
(d)Under the common law of Australia, an alien (other than an enemy alien in time of war) who is within Australia, whether lawfully or unlawfully, is not an outlaw; and neither a public official nor a private person can lawfully detain him or her, or deal with his or her property, except “under and in accordance with some positive authority conferred by the law”.[26]
(e)Although an alien in Australia enjoys the protection of its laws, he or she is vulnerable to “exclusion or deportation” which significantly diminishes the protection Chapter III of the Constitution provides, in the case of a citizen, against imprisonment otherwise than pursuant to judicial process.[27] That is, an alien is vulnerable to imprisonment otherwise than pursuant to judicial process.
(f)The vulnerability of an alien to imprisonment otherwise than pursuant to judicial process arises from its having been held that the power conferred on Parliament by s 51(xix) of the Constitution to make laws with respect to naturalisation and aliens “includes not only the power of the Parliament to make laws for the expulsion or deportation of aliens by the Executive but extends to authorising the Executive to restrain an alien in custody to the extent necessary to make the deportation effective”.[28] In other words, the legislative power conferred by s 51(xix) of the Constitution “encompasses the conferral upon the Executive of authority to detain (or to direct the detention of) an alien in custody for the purposes of expulsion or detention”.[29]
(g)The conferral or the power to detain “is an incident of the executive power” (emphasis added):[30]
By analogy, authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers. Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Ch.III’s exclusive vesting of the judicial power of the Commonwealth in the courts which it designates. The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature . . . nor part of the judicial power of the Commonwealth. When conferred upon the Executive, it takes its character from the executive powers to exclude, admit and deport of which it is an incident.
[26] Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, at page 19
[27] Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1m page 29
[28] Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, at pages 30-31
[29] Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, at page 32
[30] Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, at page 32
On the basis of these principles, Brennan, Deane and Dawson JJ concluded that the validity of provisions authorising the detention of aliens is to be determined by the following considerations (the Lim Principle) (emphasis added):[31]
In the light of what has been said above, the two sections will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch.III’s insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates.
[31] The High Court in NZYQ, at [31], used the “constitutional principle” to the principles stated in this passage; and also used “the Lim principle” to refer to this passage
NZYQ
In NZYQ the High Court considered on a special case questions that included whether, as at 30 May 2023, s 189(1) and s 196(1) of the Migration Act, on their proper construction, authorised the detention of the detainee as at 30 May 2023; and, if so, whether those provisions are beyond the legislative power of the Commonwealth insofar as they applied to the detainee as at 30 May 2023. The High Court answered both questions in the affirmative; but it is the High Court’s reasons in support of the second answer that are relevant to the questions that arise in the proceeding before me.
The High Court answered the second question in the affirmative on the basis of four premises. The first is the Lim Principle, and the High Court’s explication of that principle. The High Court noted that the Lim principle insisted that “the detention of an alien must be limited to a period that is “reasonably capable of being seen as necessary” for one or other of two legitimate and non‑punitive purposes, identified in terms of removing the alien from Australia or enabling an application by the alien for permission to remain in Australia to be made and considered”;[32] and consistency with the Lim principle entailed that “a Commonwealth statute which authorises executive detention 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”.[33]
[32] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, at [31]
[33] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, at [41]
The second premise is the High Court’s own formulation of the Lim principle:[34]
The application of the principle in Lim, although ultimately directed to a single question of characterisation (whether the power is properly characterised as punitive), requires an assessment of both means and ends, and the relationship between the two. 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.
. . . .
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.
[34] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, at [44], [55]
A third premise relates to the onus of proof. The High Court held that the evidentiary and legal burdens of proof that apply in the context of habeas corpus proceedings apply to determining whether the Lim principle has been exceeded in any given case:[35]
If Al‑Kateb was to be reopened and overruled, the defendants made a correct and important concession. The plaintiff having discharged an initial evidential burden of establishing that there was reason to suppose that his detention had ceased to be lawful by reason that it transgressed the applicable constitutional limitation on his detention, the defendants conceded that they bore the legal burden of proving that the constitutional limitation was not transgressed. The concession was correct having regard to the coincidence of two fundamental principles. The first, a principle of common law reflected in the traditional procedure for obtaining a writ of habeas corpus, is that where a person in the detention of another adduces sufficient evidence to put the lawfulness of that detention in issue, the legal burden of proof shifts to the other to establish the lawfulness of that detention. The second, a principle of constitutional law, is that “it is the duty of the Court in every constitutional case to be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for the legislation”.
[35] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, at [59]
The fourth premise is the Minister’s being unable to prove that “there existed a real prospect of [the detainee’s] removal from Australia becoming practicable in the reasonably foreseeable future”,[36] in circumstances where the detainee did not contribute to the frustration of the pursuit of lines of inquiry by officers of the Department attempting to bring about the person’s removal”,[37] and in circumstances “where officers of the Department [did not remain] in the process of pursuing lines of inquiry based on circumstances peculiar to the person in detention”.[38]
[36] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, at [60]
[37] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, at [62]
[38] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, at [62], quoting from CPCF v Minister for Immigration and Border Protection [2015] HCA 1; at [374]Plaintiff M76-2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53, at [4], [135]
It is convenient at this point to refer to one matter which, as I will show later, is central to the Minister’s application for an adjournment, and to the Minister’s case in answer to the applicant’s claim for relief; and that relates to whether the scope of detention extends to the period commencing when an application to enter Australia is made and ending when the Minister completes his or he consideration on whether the permit the alien to enter Australia. It is clear from the Lim principle itself that it is lawful to detain a person to enable an application for an entry permit to be made and considered; and this proposition has in any event been confirmed by the High Court in Plaintiff S4-2014 v Minister for Immigration and Border Protection:[39]
The detention which the Act authorises is detention by the Executive without judicial order or warrant. In Chu Kheng Lim v Minister for Immigration this Court held that laws providing for the mandatory detention of certain aliens were valid and did not infringe Ch III of the Constitution. The Court held that the statutory conferral on the Executive of authority to detain an alien, when conferred in the context of an executive power of deportation or expulsion, constitutes an incident of that executive power. Likewise, the Court held that authority to detain an alien in custody, when conferred in the context and for the purpose of executive powers to receive, investigate and determine an application by that alien for permission to enter and remain in Australia, constitutes an incident of those executive powers.
[39] Plaintiff S4-2014 v Minister for Immigration and Border Protection [2014] HCA 34, at [26]
Questions to be asked when determining lawfulness of immigration detention

Whether, therefore, in any given case the detention of a person purportedly pursuant to s 189 or under any other provision of the Migration Act is unlawful turns on the determination of the following questions:
(a)Has the detainee discharged the evidentiary burden of establishing there is reason to suppose that his or her detention had ceased to be lawful by reason that it transgressed the applicable constitutional limitation on his detention?
(b)If (a) is answered in the affirmative, has the Minister proved there exists a real prospect of [the detainee’s] removal from Australia becoming practicable in the reasonably foreseeable future?
(c)If (b) is answered in the negative, has the detainee contributed to the frustration of the pursuit of lines of inquiry by officers of the Department attempting to bring about the person’s removal?
PARTIES’ SUBMISSIONS
The applicant’s case
The applicant submits he is directly affected by the High Court’s decision in NZYQ because there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. That submission is based on the following matters (Principal Premises):
(a)On 3 November 2022 the Tribunal found the applicant was owed non-refoulement obligations due to the real risk of harm he would face if he were returned to Iran.
(b)As a matter of policy the Australian government does not remove persons in breach of non-refoulement obligations Australia owes such persons.
(c)As recently as March 2024 the Department concluded that the applicant’s involuntary return to Iran would likely result in Australia breaching the non-refoulment obligations it owes to the applicant.
(d)The applicant has no right to reside in any country other than Iran, and there is no evidence that any country would be willing to accept him for resettlement, particularly given the applicant’s criminal record.
The applicant further submits that the Minister’s having exercised the power under s 48B of the Migration Act is irrelevant to the position of the applicant as a person who is incapable of foreseeably being removed from Australia.
Minister’s case
The Minister submits that the applicant’s current detention is lawful, and that is because “the time for exercise of the removal obligation under s 198 of the [Migration] Act has not yet arisen”.[40] The submission is based on the following premises:
(a)Detention for the purpose of processing a visa application is constitutionally permissible, as is detention for the purpose of the Minister considering whether to permit an application for a visa.[41]
(b)Given (a), “the period between when the Minister decides to permit an application for a visa, and the processing of that visa application once submitted, is also constitutionally permissible”.[42]
(c)By exercising the power under s 48B of the Migration Act to provide to the applicant the opportunity to apply for a protection visa, the applicant’s “current detention is for the purpose of receiving and determining a protection visa application”.[43]
[40] Minister’s Outline of Submissions, [23]
[41] Minister’s Outline of Submissions, [28]
[42] Minister’s Outline of Submissions, [28]
[43] Minister’s Outline of Submissions, [29]
MINISTER’S APPLICATION FOR AN ADJOURNMENT
In his outline of written submissions, the Minister relies on two grounds to adjourn the hearing. The first is the “significant development” of the Minister’s decision under s 48B of the Migration Act. The Minister submits that “it is appropriate for the hearing to be adjourned to enable the Applicant to apply for a protection visa”.[44] The second ground is to give time for the sending of 78B notices.
[44] Minister’s Outline of Submissions, [2]
At the hearing counsel for the Minister submitted that an adjournment should be granted because the facts against which the lawfulness of the applicant’s detention is to be determined are likely to change by the end of the time by which the applicant is required by the 48B Notification to apply again for a protection visa (being seven working days after the date of the 48B Notification) (48B period); and that “what the court’s resources would be best directed at is not analysing the current position, that is the lawfulness of detention in a seven day interregnum between the exercise of the section 48[B] power and the making of any application”.[45] The Minister submits that the facts against which the lawfulness of the Minister’s detention of the applicant is to be assessed will change in one of two ways, depending on whether the applicant will decide to apply for a protection visa within the 48B period. If the applicant applies for a protection visa during the 48B period, the lawfulness of the applicant’s detention will be assessed by reference to the applicant having applied for a protection visa. If, on the other hand, the applicant does not elect to apply for a protection visa within the 48B period, the lawfulness of the applicant’s detention is to be assessed on the footing that the applicant’s not so applying may be a factor that goes to whether he has co-operated in his removal from Australia.
[45] T2.40
Counsel for the Minister also identified the constitutional issue that warranted the issue of a 78B notice as follows:[46]
The constitutional issue is whether or not the purpose – sorry, yes, whether or not detention presently, during the period of seven days to allow the applicant to make a protection visa application is a constitutionally permissible purpose. And if an application is made the question will be whether or not detention during the time taken to consider that visa application will be a constitutionally permissible purpose. And then if an application for a protection visa is not made, the question will be whether or not detention, for the purposes of removal, is permissible in circumstances where the applicant has not cooperated by making a protection visa application and has not cooperated by taking steps to enable removal to Iran.
I make that second point guardedly because I accept that there has been a removal assessment, which indicated that the issues of non-refoulement did arise and that’s why the bar has been lifted, and so there are presently no steps being taken to remove the applicant. Rather steps were taken to raise the bar. I don’t need to articulate those substantive arguments anymore.
[46] T7.45-T8.5
Application for adjournment based on changing facts
The determination of the first ground on which the Minister applies for an adjournment turns on whether, given the Principal Premises, the applicant’s detention will be lawful:
(a)during the 48B period, assuming the applicant does not apply for a protection visa during that period; and
(b)during the period commencing on the day within the 48B period on which the applicant applies for a protection visa; and
(c)during the period commencing on a day after the 48B period ends, assuming the applicant does not apply for a protection visa during the 48B period.
If the applicant’s detention would not be lawful in the second and third set of circumstances, there would be no utility in granting any adjournment on account of any change of facts.
Position during the 48B period
The Minister’s submissions appear to proceed on the basis that the Lim principle turns entirely on the purpose for which the Minister detains a person. The Minister appears to submit that detaining a person for the purpose of enabling that person to avail himself or herself of the opportunity granted to him by the Minister to apply for a visa with a view to the Minister considering and determining such application by itself justifies the Minister’s detaining the person for that purpose. The Lim Principle, however, “although ultimately directed to a single question of characterisation (whether the power is properly characterised as punitive), requires an assessment of both means and ends, and the relationship between the two”. Thus, the question that arises from the Minister’s having exercised his power under s 48B of the Migration Act is whether there is any relation between the stated ends or purposes for detaining the applicant during the 48B period (namely, to provide the applicant an opportunity to decide whether he should apply for a protection visa with a view to the Minister considering and determining that application), and the means for effectuating that purpose (namely, detention), such that the applicant’s detention during the 48B period is reasonably “necessary to effectuate” the stated ends or purposes;[47] and that question must be answered having regard to the Principal Premises.
[47] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, at [41]
It may be accepted that if there were no impediment to the applicant’s being returned to Iran consistently with Australia’s non-refoulement obligations, or if there were any uncertainty about whether the applicant could be so returned, but that it may reasonably be supposed that such uncertainty could be resolved one way or another by further inquiries, there would be no impediment under the Lim principle to the Minister’s continuing to detain the applicant during the 48B period for the stated purpose. That would be so because the purpose of the detention would be to enable the Minister to detain the applicant pending his removal to Iran (if the applicant were not to apply for a protection visa in the 48B period), or to hold the applicant in detention if the applicant were to apply in the 48B period for a protection visa for the purpose of considering and determining that application and, if refused, to take steps to remove the applicant from Australia to Iran. Given the Principal Premises, however, and in particular, the Minister’s accepting that the non-refoulement obligations Australia owes the applicant prevent the applicant from being removed from Australia to Iran, there would be no reasonable prospect of the Minister being in a position to remove the applicant from Australia to Iran, if the applicant were not to apply for a protection visa during the 48B period or, if the applicant were to apply for the protection visa during the 48B period, the Minister were to refuse the application. Thus, detaining the applicant during the 48B period is not reasonably necessary to enable the Minister to secure his stated purpose, namely, to provide the applicant with an opportunity to decide to apply for a protection visa with a view to considering that application and, if refused, removing the applicant from Australia to Iran. The occasion for removing the applicant from Australia to Iran or elsewhere would not arise in the reasonably foreseeable future, and there would therefore be no justification for keeping the applicant in detention to enable the Minister to remove the applicant from Australia to Iran on the basis that such occasion would arise in the reasonably foreseeable future.
Applicant applies for protection visa during 48B period
What would the position be if the applicant, within the 48B period, applied for a protection visa? The position would be no different to the position I identified in the previous paragraph. If there were no impediment to the applicant’s being returned to Iran consistently with Australia’s non-refoulement obligations, or if there were any uncertainty about whether the applicant could be so returned, and that it may reasonably be supposed that such uncertainty could be resolved one way or another by further inquiries, the Minister would be entitled to detain the applicant for the purpose of considering and determining his application for a protection visa, and continue to hold the applicant in detention if the Minister refused the application for the purpose of removing to Iran. Given the Principal Premises, however, the Minister would not be in a position to remove the applicant to Iran within the reasonably foreseeable future, even if the Minister were to refuse to grant the applicant a protection visa. There would therefore be no relationship between the applicant’s detention and the Minister’s considering and determining any application for a protection visa because, even if the Minister were to refuse the grant of a protection visa, the Minister would not be in a position to remove the applicant from Australia to Iran within the reasonably foreseeable future.
Applicant does not apply for a protection visa during 48B period
I finally consider the position if the applicant were not to apply for a protection visa during the 48B period. From the constitutional issue counsel for the Minister framed at the hearing, the Minister appears to suggest that if the applicant were not to apply for a protection visa during the 48B period, that failure could constitute a lack of co-operation and, if so, that might be relevant to determining whether there is no real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future. The Minister does not explain, however, how the applicant’s not applying for a protection visa could constitute a lack of co-operation, given that the object of applying for a protection visa would be to render the applicant a lawful non-citizen, rather than facilitate his return to Iran. In any event, even if the applicant’s failure to apply for a protection visa during the 48B period were capable of being characterised as lack of co-operation, there would be no causal connection between any such refusal to apply for a protection visa, and the Minister’s not being willing to remove the applicant to Iran because he accepts Australia owes the applicant non-refoulement obligations.
Conclusion
I am not satisfied that the issue of the 48B Notification has given, or will give, rise to facts that are relevant to determining the lawfulness of the applicant’s detention as at the time I publish these reasons, or during what remains of the 48B period, or after the 48B period depending on whether the applicant has or has not decided to apply for a protection visa.
Adjournment based on s 78B of the Judiciary Act
Subsection 78B(1) of the Judiciary Act provides as follows:
Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
Section 78B of the Judiciary Act “only operates when the circumstances it postulates are made to appear to the court: it does not operate simply because a party asserts those circumstances”.[48] The question contemplates “a constitutional question which is a live issue in the proceedings”.[49] Further, s 78B of the Judiciary Act “does not impose on the court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation”.[50]
[48] Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd & Ors [1999] FCA 1151, at [13]
[49] Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd & Ors [1999] FCA 1151, at [13]
[50] Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd & Ors [1999] FCA 1151, at [14]
I have already set out the constitutional issue counsel for the Minister formulated at the hearing. After the hearing the Minister issued a 78B Notice, which identified the constitutional matter as follows:
The present case involves a question about the scope of the constitutional limitation identified by the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37. Specifically, there is a dispute between the parties as to whether ss 189 and 196 of the Migration Act 1958 (Cth) (Act) must be partially disapplied so as not to authorise the Applicant’s detention.
I am not satisfied that counsel’s formulation of the constitutional issue identifies any constitutional issue that has not been concluded. I accept the applicant’s submission that the applicant’s claims engages the Lim principle as expounded by the High Court in NZYQ to the particular facts of this case. The question that arises is whether the detention of the applicant, during and after the 48B period, is a reasonably necessary means to give effect to the stated purposes of the applicant’s detention. Further, I am not satisfied that the 78B notice the Minister did issue identifies or sufficiently identifies any constitutional issue that arises in the proceeding before me.
Conclusion on adjournment application
For these reasons, I am not satisfied that it is necessary in the interests of justice to adjourn the hearing of the applicant’s claims for relief.
DETERMINATION OF THE APPLICANT’S CLAIMS FOR RELIEF
I now consider the applicant’s claims for relief. The first question is whether the applicant has discharged the evidentiary burden of establishing there is reason to suppose that his detention has ceased to be lawful by reason that it transgressed the applicable constitutional limitation on his detention.
As I have already noted, the applicant relies on what I have identified as the Principal Premises. I am satisfied the evidence and agreed facts are capable of supporting findings to the effect of the Principal Premises, and I make findings to their effect. On the basis of the Principal Premises, I am satisfied the applicant has discharged the evidentiary burden of establishing there is reason to suppose that his detention had ceased to be lawful by reason that it transgressed the applicable constitutional limitation on his detention
The next question is whether the Minister has proved there exists a real prospect of the applicant’s removal from Australia becoming practicable in the reasonably foreseeable future. The Minister has not attempted to discharge that burden because his primary submission is that the time for the Minister’s being required to discharge such burden has not arisen; and it has not arisen because the Minister submits that it is reasonably necessary to detain the applicant for the 48B period for the purpose of enabling the applicant to determine whether he should apply for a protection visa with a view to the Minister considering and determining such application. I have already concluded that, given the Primary Premises, and in particular the Minister’s accepting that the non-refoulement obligations Australia owes the applicant prevent the applicant from being removed from Australia to Iran, detaining the applicant is not reasonably necessary to effectuate the purpose of giving the applicant an opportunity during the 48B period to apply for a protection with a view to the Minister’s considering and determining such application; or, if the applicant applies for a protection visa during the 48B period, to effectuate the purpose of the Minister to consider and determine the application for a protection visa; or, if the applicant does not apply for a protection visa during the 48B period, to effectuate the purpose of the Minister to remove the applicant out of Australia.
The third and final question is whether the applicant has contributed to the frustration of the pursuit of lines of inquiry by officers of the Department attempting to bring about the applicant’s removal. At the hearing, counsel alluded to the possibility of the applicant’s having identification documents in his possession necessary to enable him to facilitate his voluntary return to Iran. Whether that is the case is not relevant. The Minister accepts that the non-refoulement obligations Australia owes the applicant is a barrier to the Minister’s seeking to remove the applicant from Australia to Iran; and it may be taken that it is the Minister’s unwillingness to breach the non-refoulement obligations Australia owes to the applicant that accounts for the Minister’s not taking steps to remove the applicant from Australia to Iran.
CONCLUSION AND DISPOSITION

The applicant has succeeded in his claim that his detention by the Minister is not lawful. The applicant, therefore, is entitled to be released immediately.
There is the question of the form of the remedy I should grant. In NZYQ the High Court ordered that the appropriate relief was that a “writ of habeas corpus issue requiring the defendants to release the plaintiff forthwith”. I have already noted that the form of writ of habeas corpus provided for under the High Court Rules does nothing more than order the person to whom it is directed to have the person in custody brought before a Justice of the High Court; it does not purport to order the release of the person in custody. In those circumstances, it would be appropriate to make an order in terms of the order provided for by r 25.16.1(b) of the High Court Rules, namely, that the applicant be released immediately.
There is no reason why costs should not follow the event. I propose to so order, but I will reserve to the parties liberty to apply within 35 days to vary or discharge the order for costs.
I therefore propose to make the following orders:
(a)The respondents’ application for an adjournment is dismissed.
(b)The applicant be immediately released from immigration detention.
(c)Subject to (d), the respondents pay the applicant’s costs.
(d)The parties have liberty to apply within 35 days after the pronouncement of orders to vary or discharge order (c).

I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.
Associate:
Dated: 17 April 2024

File number(s):	SYG 599 of 2024
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	17 April 2024
Catchwords:	MIGRATION – application for a mandatory injunction and a writ of habeas corpus requiring the release of the applicant from immigration detention – whether the applicant’s detention was reasonably necessary to give effect to the purposes for which respondents contended it was necessary for the applicant to remain in custody – applicant’s detention was not reasonably necessary – order for release made.
Legislation:	Constitution (Cth) ss 51(xix), 75(v) Federal Circuit and Family Court of Australia Act 2021 (Cth) s 140(b) Judiciary Act 1903 (Cth) ss 44(1), 78B(1) Migration Act 1958 (Cth) ss 5, 13, 14, 48A, 48B, 54L, 54L(2), 54N, 54P, 54R, 88(8), 189(1), 198(5), 195, 195A(2), 195AB(1), 196(1), 197C(2), 198(5), 198(5A), 474, 476(1), 501(3A), 510(3A) High Court Rules 2004 (Cth) rr 25.16.2, 48
Cases cited:	AKW22 v Commonwealth [2023] FCA 71 Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd & Ors [1999] FCA 1151 Australian Securities Commission v Melbourne Asset Management Nominees Pty Ltd [1994] FCA 1031 Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 CPCF v Minister for Immigration and Border Protection [2015] HCA 1 Mokhlis v Minister for Home Affairs [2020] HCA 30 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 Plaintiff M76-2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53 Plaintiff S4-2014 v Minister for Immigration and Border Protection [2014] HCA 34 R v Cook; Ex parte Twigg [1980] HCA 36 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57
Division:	General
Number of paragraphs:	89
Date of hearing:	12 April 2024
Place:	Sydney
Counsel for the Applicant:	Dr C Ward SC and Ms M Bridgett
Solicitor for the Applicant:	Human Rights For All
Counsel for the Respondents:	Mr P Knowles SC and Mr A Hall
Solicitor for the Respondents:	Australian Government Solicitor

SYG 599 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	GMZ18 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent SECRETARY OF DEPARTMENT OF HOME AFFAIRS Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	17 APRIL 2024