CRS20 v Secretary, Department of Home Affairs

Federal Court of Australia|2024-06-12|Before: Rangiah J, Wheelahan J

The applicant's evidence 7 The applicant read four affidavits to the Court. All of these were affidavits made by his solicitor, Rachel Saravanamuthu. 8 Ms Saravanamuthu's first affidavit, dated 16 February 2024, comprised two paragraphs and essentially deposed to the fact that the applicant was being held in immigration detention. 9 Ms Saravanamuthu's second affidavit, dated 2 May 2024, was more substantial and detailed the applicant's immigration history and the course of efforts to remove him from Australia. It was received into evidence save for two paragraphs that were not read: [56] and [77]. 10 Ms Saravanamuthu's third affidavit annexed documents that were responsive to two notices to produce issued by the respondents, as well as documents that the respondents had produced in response to a request from the applicant's solicitors. That last category comprised documents to which a Pre-Removal Clearance completed by the respondents on 15 May 2024 had referred. 11 Ms Saravanamuthu's fourth affidavit was read on the second day of the hearing, and annexed documents obtained by the applicant under the Freedom of Information Act 1982 (Cth) and by internet searches of a database of documents obtained by others under the same legislation. Those documents included a determination made by the Minister for Home Affairs revoking a determination under s 46A(2) to lift the bar apparently in relation to the applicant.

Background 21 I will now set out the circumstances of the applicant, and the events relevant to his application, in greater detail. 22 As I have mentioned, the applicant is a Faili Kurd of Shia Muslim faith. He was born in Iraq in 1985, to parents who had themselves been born in Iraq. Just several months after he was born, the applicant was deported with the rest of his family to Iran, apparently at the instigation of the regime of Saddam Hussein. Thereafter, the applicant was raised in Iran. 23 Many of the facts in this case - especially those concerning the steps taken to facilitate the removal of the applicant - are uncontroversial. The applicant's nationality, however, is a live issue in this proceeding, albeit indirectly. The applicant claims to be stateless - a citizen of neither Iraq nor Iran. The respondents do not accept that the applicant is stateless. As will appear, the key factual basis on which the respondents support the continuing detention of the applicant is that the authorities in Iraq or Iran may recognise the applicant as a citizen, and therefore facilitate his removal from Australia in the reasonably foreseeable future. 24 The summary that follows constitutes my findings of fact on the issues I address. Where factual matters are more controversial, I will explain the controversy and make my findings explicit. For reasons I will explain, the issue of the applicant's nationality is better understood in the context of the parties' respective cases, and for that reason I omit this issue from my summary of the background facts and circumstances.

History of the detention of the applicant 25 In 2012, the applicant travelled to Australia by boat. Upon his arrival, he was taken into immigration detention, where he remained until 5 December 2012. On 5 December 2012, the applicant was granted a Bridging Visa E (Subclass 050) which enabled him to leave immigration detention and live in the Australian community. The applicant's status as an unauthorised maritime arrival precluded him from making a valid application for a visa in Australia until that statutory preclusion was lifted on 13 August 2015. I will come back to the issue of the applicant's status as an unauthorised maritime arrival and the lifting of the statutory bar in due course, as this became a matter of some dispute at the hearing. 26 The applicant subsequently lodged an application for a Safe Haven Enterprise Visa (Subclass 790) (SHEV) on 11 April 2016. Before his application was determined, the applicant was charged with a criminal offence and taken into remand. Days later, his bridging visa was cancelled. While on remand, the applicant was charged with a further offence. On 6 July 2017, however, the criminal charges against the applicant were withdrawn. Accordingly, the applicant was transferred to immigration detention on the same day. 27 As I recount further below, the applicant's application for a SHEV was refused by a delegate of the Minister for Immigration and Border Protection on 19 October 2017. 28 On 2 May 2019, the applicant was charged in relation to an incident that occurred in immigration detention. As a result, he was taken out of immigration detention and placed on remand. The applicant was convicted of common assault and assault occasioning actual bodily harm in the company of others on 27 September 2019. For these offences, two community correction orders were made, for 12 months and 18 months respectively. He was then returned to immigration detention, where he remains to the present day.

The applicant's claims for protection visas 29 For reasons that will become clearer, it is also necessary to set out briefly the history of the applicant's claims for protection visas. 30 As noted at [26] above, the applicant applied for a SHEV on 11 April 2016. In the statement that accompanied his application, the applicant stated that he believed he would suffer harm and discrimination if he returned to Iran. There were two main bases on which the applicant founded that claim. First, the applicant recounted that he had been in a relationship with a woman in Iran and engaged in sexual relations with her outside marriage. The applicant stated that he feared being detained and harmed by the Iranian authorities on that account, as well as being harmed by the woman's brothers, who he said had threatened to kill him on numerous occasions. Secondly, the applicant stated that he would suffer significant discrimination in Iran on the basis of his ethnicity as a Faili Kurd. This claim was supported by details of claimed harm and discrimination that the applicant and his family members had suffered in Iran due to their ethnicity. At no point in his statement did the applicant claim to fear persecution if he were returned to Iraq. 31 The applicant's application for a SHEV was refused by a delegate of the Minister on 19 October 2017. The Immigration Assessment Authority affirmed the delegate's decision on 27 November 2017. The Authority concluded that the applicant was not stateless, and had in fact acquired Iranian citizenship at some point. The applicant sought judicial review of the Authority's decision in the Federal Circuit Court of Australia, but that Court dismissed his application. On appeal to the Full Court of this Court, the applicant succeeded, the decision of the Authority was quashed, and the Authority was ordered to make the decision again according to law. 32 On 25 May 2020, the Authority again affirmed the delegate's decision to refuse the applicant's application for a SHEV. The Authority again concluded that the applicant was not stateless, and had in fact acquired Iranian citizenship at some point before leaving Iran. The Authority also concluded that the applicant was not an Iraqi citizen. This decision was set aside by the Federal Circuit and Family Court of Australia (Div 2) (Circuit Court), and the matter was remitted to the Authority for re-determination. The Minister appealed to this Court from the judgment of the Circuit Court, but that appeal was dismissed. 33 On 27 September 2022, the Authority once more affirmed the delegate's refusal of the applicant's application for a SHEV. This time, the Authority concluded that the applicant was not stateless, had been an Iranian citizen since before 2001, and was not an Iraqi citizen. The applicant sought judicial review of this third decision in the Circuit Court, but that Court dismissed his application on 24 May 2023. 34 In the preceding summary, I have focused on the features of the administrative decisions that are salient to the current application for a writ of habeas corpus. It is also worth noting, however, that the executive decision-makers who considered the merits of the applicant's visa application rejected the applicant's claim to be a person to whom Australia owes protection obligations. The reasons for each rejection varied somewhat from decision-maker to decision-maker. By way of illustration, the reasons included a lack of satisfaction concerning: (a) whether the applicant had indeed had a sexual relationship with a woman outside marriage; (b) whether the applicant genuinely feared harm from the woman's family; (c) whether harm suffered by the applicant's family members in Iran was referable to their being Faili Kurds; and (d) whether there was a real chance of the applicant being detained or harmed by the Iranian authorities.

Events relating to the potential removal of the applicant from Australia 35 The key issue in this case is whether there is a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future. As I will explain, that issue calls for a particular focus. It is not a focus on whether the applicant has been detained for a long time, or even longer than may have been reasonably necessary to effect his removal. Nevertheless, the history of efforts to remove the applicant from Australia can rationally inform the Court's assessment of the issue raised on this application. Events that have transpired can affect the Court's assessment of whether there currently exists the real prospect that is required for the applicant's detention to be authorised. For that reason, it is important to examine the history of events relating to the removal of the applicant from Australia in some detail. Most of what follows was not controversial. I will explain significant points of dispute raised at the hearing as I proceed through my findings.

Potential removal to Iran 36 On 5 July 2023, the applicant's solicitor emailed the Australian Border Force and the Department to communicate a request by the applicant to be removed to Iran. 37 On 13 July 2023, an Australian Border Force removal officer emailed the applicant's solicitor regarding the removal process and provided documents for the applicant to complete, including an application for an Iranian travel document. 38 On 26 July 2023, the applicant's solicitor forwarded to the Border Force several completed documents to facilitate the applicant's removal to Iran. These included a laissez-passer application form, a brief letter in Farsi to the Iranian embassy, a completed form titled "Application for Return and Reintegration Assistance", and two copies of the applicant's identity document. After some further logistical correspondence with the Border Force, the applicant's solicitor also provided a completed "Request for removal from Australia" form on the same day. There was some further correspondence between the applicant's solicitor and the representative of the Border Force over the next two days, concerning logistical matters including whether the applicant could provide a clearer copy of certain documents. 39 The applicant's solicitor emailed the Border Force representative on 25 August 2023 to enquire about the status of efforts to remove the applicant from Australia. On 28 August 2023, the Border Force representative informed the applicant's solicitor that the laissez-passer application had been submitted to the Iranian embassy on 7 August 2023. 40 The applicant's solicitor sought further updates on 3 October 2023 and 25 October 2023, but on each occasion the Border Force representative informed her that there was no update regarding the removal of the applicant. Internal documents of the Border Force record that Border Force officers attended the Iranian embassy on 4 October 2023 and were advised by consular staff that a travel document would likely be issued to the applicant within a week of that date. 41 On 8 November 2023, the High Court pronounced orders in NZYQ. While the Court's reasons were published subsequently on 28 November 2023, the Court made a declaration on 8 November 2023 to the effect that the detention of the plaintiff, NZYQ, had been unlawful since 30 May 2023 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. On 15 November 2023, the applicant's solicitor wrote to the Border Force referring to the High Court's decision and claiming that the applicant's detention may have been unlawful due to the fact that he could not be removed in the reasonably foreseeable future. 42 On 16 November 2023, a Border Force officer informed the applicant's solicitor by email that the Iranian embassy had advised Border Force that the applicant's travel document application was progressing, and that an update would be available by the middle of the following week. This accords with internal Border Force records, which indicate that Border Force officials attended the Iranian embassy on 16 November 2023 to request an update on the applicant's case, and that consular staff advised that a laissez-passer would take two to three days to issue. 43 On 21 November 2023, Border Force officers sent a message to the Iranian embassy to seek an update on the issue of a laissez-passer. Border Force officers then attended the Iranian embassy on 23 November 2023. On the same day, a Border Force officer informed the applicant's solicitor that the Iranian embassy had requested to speak with the applicant. The applicant's solicitor confirmed with the Border Force officer that her details could be shared with the Iranian embassy. On 30 November 2023, the Iranian embassy advised that the issuing officer wished to speak with the applicant directly. On 4 December 2023, the Border Force officer informed the applicant's solicitor that the Iranian embassy wished to speak with the applicant directly about his travel document application, and that the Border Force would pass the applicant's details on to the Iranian embassy. 44 On 11 December 2023, the applicant's solicitor contacted the Border Force officer and requested that the officer follow up with the Iranian embassy. On the same day, the Border Force officer informed the applicant's solicitor that Border Force had not received any updates from the Iranian embassy. At the suggestion of the Border Force officer, the applicant and his solicitor contacted the Iranian embassy directly on 12 December 2023. 45 On 14 December 2023, Mr Nette emailed the Iranian embassy seeking an update regarding the applicant's application for a laissez-passer. Mr Nette received a reply from the Iranian embassy on the same day, which relevantly stated - [T]he person named is not Iranian, and apparently he is Iraqi, if he presents the documents that show that he is Iranian, it is possible to issue Laisse Passer … 46 On 19 December 2023, the applicant's solicitor left a voicemail message with the Iranian embassy, which was not returned. 47 On 8 January 2024, the applicant's solicitor requested an update from Border Force regarding the applicant's removal. On 9 January 2024, a Border Force officer acknowledged receipt of that request. 48 The applicant commenced this proceeding on 19 February 2024. 49 On 8 March 2024, the Australian Government Solicitor wrote to the applicant's solicitor, addressing the current status of efforts to remove the applicant from Australia. That letter noted the Iranian embassy's statement that the applicant was not Iranian, which I have set out above.

Potential removal to Iraq 50 Mr Nette deposed that the 14 December 2023 response from the Iranian embassy prompted Border Force to engage with the Iraqi embassy to see whether consular staff could determine the applicant's citizenship status if provided with the applicant's Iran-issued identity card. 51 On 11 January 2024, an officer of the Department of Home Affairs sent a "Third Party Note" to the Iraqi embassy to request that consular staff determine whether the applicant was an Iraqi citizen. The Iraqi embassy responded on the same day with a request for certain documents. There was further correspondence between the Iraqi embassy and the Department the following day concerning material requested by the embassy. 52 On 7 February 2024, Mr Nette and two other Australian government officers attended a meeting at the Iraqi embassy with the Deputy Head of Mission and another consular officer. The purpose of the meeting was to discuss the applicant's case. The Deputy Head of Mission stated that the documents provided were not enough to determine the applicant's citizenship status, and that the applicant would need to be interviewed. The Deputy Head of Mission also stated that the Iraqi embassy would be able to determine whether the applicant was an Iraqi citizen once that interview had occurred. 53 After the applicant commenced this proceeding on 19 February 2024, a letter was sent by the Australian Government Solicitor to the applicant's solicitor on 8 March 2024 which stated that the Iraqi embassy had indicated that it wished to interview the applicant to determine his eligibility for citizenship. That letter also asked the applicant's solicitor to confirm whether the applicant would be willing to be interviewed by an official from the Iraqi embassy in Canberra for the purposes of assessing whether he had a right of return to Iraq. While there was further correspondence between the Australian Government Solicitor and the applicant's solicitor on issues raised by the 8 March 2024 letter, the applicant's solicitor did not immediately or directly confirm whether the applicant was willing to be interviewed by consular staff from the Iraqi embassy. 54 On 21 March 2024, the Australian Government Solicitor sent a letter to the applicant's solicitor, which in part set out the Australian Government Solicitor's understanding of the case that the applicant would advance at the trial of this proceeding. That understanding was set out in paragraph [5] of the letter which stated, inter alia, at points (d) and (e) that - … d. Fourth, the applicant would voluntarily cooperate in any such removal, including by taking all reasonable steps within his power that are necessary to effect his removal. Such steps would include applying for a travel document issued by a country other than Australia or attending an interview at the embassy or consulate of such a country; e. Fifth, the applicant does not suffer from any medical condition that would prevent him from being removed from Australia or prevent him from cooperating with such removal; and … 55 The Australian Government Solicitor asked the applicant's solicitor to confirm that this was the nature of the applicant's case, stating at paragraph [6] of the letter - We ask that you confirm that this is the nature of the case which is to be advanced by the applicant at trial by 28 March 2024. If it is not, or it is incomplete in a material respect, we ask that you set out precisely the nature of the case which is to be advanced by the applicant. 56 The applicant's solicitor replied by email on 27 March 2024, stating that (subject to a presently irrelevant exception), "the information included in paragraph 5 [was] consistent with the [a]pplicant's case". 57 On 16 April 2024, the Australian Government Solicitor sent a further letter to the applicant's solicitor, which noted the enquiry of 8 March 2024 as to whether the applicant was willing to attend an interview with an Iraqi embassy official. The letter also referred to the 21 March 2024 letter, which set out the Australian Government Solicitor's understanding of the applicant's case in this Court, including the proposition in paragraph [5] that the applicant would voluntarily attend an interview at the embassy of a country other than Australia. Next, the letter referred to the email sent by the applicant's solicitor on 27 March 2024, which indicated that paragraph [5] of the 21 March 2024 letter was relevantly accurate. The letter finally asked the applicant's solicitor to confirm whether the applicant was willing to attend an interview with an official from the Iraqi embassy. 58 On 18 April 2024, the applicant's solicitor replied to the Australian Government Solicitor, confirming that the applicant was willing to attend an interview with an official from the Iraqi embassy, and passing on the applicant's request that this occur as soon as possible. 59 On 19 April 2024, the Department sent a Third Party Note to the Iraqi embassy, requesting that the embassy conduct an interview with the applicant. 60 On 22 April 2024, the applicant and his solicitor attended an interview with an Iraqi consular official by video link. At this interview, the applicant advised the consular official that he did not have any Iraqi identity documents, that none of this family lived in Iraq, and that his mother and brother lived in Iran. The Iraqi consular official requested copies of the applicant and his family's Iranian refugee identity documents. On the same day, the applicant's solicitor sent copies of the requested Iranian refugee identity documents to the Iraqi consular official by email. 61 The next day, 23 April 2024, the applicant's solicitor received an email from the Iraqi embassy stating that it would check the identity documents provided. 62 On 26 April 2024, an official from the Iraqi embassy informed Mr Nette that an interview had been conducted with the applicant and his solicitor. The consular official also stated that the embassy was processing its papers with the Iraqi Ministry of Foreign Affairs, to obtain their instructions on the issue. 63 On 13 May 2024, Mr Nette emailed the Iraqi embassy seeking an update on the applicant's case. On the same day, an official from the Iraqi embassy stated by reply email that the applicant's case was still being processed by the Iraqi Ministry of Foreign Affairs. The official also politely asked Mr Nette to be patient. 64 On 15 May 2024, the Department undertook a Pre-Removal Clearance which confirmed, for administrative purposes, that the removal of the applicant to Iraq did not breach Australia's non-refoulement obligations.

The Issues 65 As I noted at the outset, the sole form of substantive relief that the applicant seeks is a writ of habeas corpus directing his release from immigration detention. An application for a writ of habeas corpus can raise complex issues of law and procedure. In this case, however, there was no dispute about most of the applicable principles. It is therefore appropriate for me to make some observations about the legal framework that must be adopted to decide this application.

Procedural setting 66 The long history of habeas corpus makes it important to distinguish between the substantive legal principles that govern its availability, and historical points of procedure that have been overtaken by reforming legislation and contemporary rules of court. For a long time, the procedure in actions for the remedies then known as "prerogative writs" remained distinctive, despite the procedural reforms of the 19th century. In brief terms, various rules of court of the time provided that, ordinarily, a two-stage procedure would be followed on an application for a writ of habeas corpus. First, the applicant would proceed ex parte to seek a conditional order requiring the proposed respondent to show cause why the writ should not be issued. It was only at a second hearing that the court would ultimately decide, based on the return that had been made to the writ setting out the justification for detention, whether to direct the release of the detainee. 67 Under the Federal Court Rules 2011 (Cth), there is no separate procedure to be followed in applications for habeas corpus. The result is that it is necessary to be cautious when considering habeas corpus authorities decided under different procedural frameworks. Those authorities are relevant to this proceeding only insofar as they disclose substantive, rather than procedural, principles of the law relating to the remedy of habeas corpus. For their part, the parties to this application proceeded on the basis that the hearing held on 3 and 4 June 2024 was the final hearing in this proceeding. There was no question of the Court making any conditional order, and so the issue for determination is the substantive issue of whether the detention of the applicant is authorised by law: cf Save the Children Australia v Minister for Home Affairs [2023] FCA 1343 at [3]-[4] (Moshinsky J). If a writ of habeas corpus issues, or an order in the nature of habeas corpus is made in these circumstances, it will require the release of the applicant forthwith: see NZYQ at [74].

Substantive principles relating to the remedy of habeas corpus 68 There was no dispute as to the principles that govern the availability of habeas corpus. 69 The starting point is that every person is entitled to be at liberty, unless some positive law authorises another to detain the person. As Brennan, Deane and Dawson JJ put it in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Lim) at 19 (Mason CJ agreeing at 10) - Under the common law of Australia … an alien who is within this country, whether lawfully or unlawfully, is not an outlaw. Neither public official nor private person can lawfully detain him or her … except under and in accordance with some positive authority conferred by the law. Since the common law knows neither lettre de cachet nor other executive warrant authorizing arbitrary arrest or detention, any officer of the Commonwealth Executive who purports to authorize or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision. (Footnotes omitted.) See also NZYQ at [25] (The Court). 70 Where an applicant seeks "the specific relief of immediate liberation" from such unlawful executive detention, "the appropriate form of proceeding is by writ of habeas corpus": Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 at 76 (Isaacs J). 71 As I have explained, the positive legal authority upon which the respondents rely to justify the applicant's detention is derived from ss 189(1) and 196(1) of the Migration Act. In NZYQ, the High Court held at [39] that the decision in Lim established the principle that - a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose. 72 Six members of the Court proceeded to hold at [44] that - 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. 73 Accordingly, where there is no real prospect of the removal of an alien detainee from Australia becoming practicable in the reasonably foreseeable future, the statutory provisions that purport to authorise the alien's detention contravene the Lim principle in their application to that person. By force of s 3A of the Migration Act, then, those provisions do not apply to authorise the detention. The result in such a case is that ss 189(1) and 196(1) do not supply positive legal authority to justify the detention of the alien. Absent some other, valid authority for the detention, the detainee is entitled to be at liberty, and habeas corpus will issue to secure his or her immediate release. 74 As this discussion shows, the substantive question in this case is whether there is a real prospect of the removal of the applicant becoming practicable in the reasonably foreseeable future, such that the respondents have positive legal authority to detain him under ss 189(1) and 196(1) of the Migration Act. In such an application for habeas corpus, it falls to the applicant to discharge an initial evidential burden of establishing that there is reason to suppose that his or her detention has ceased to be lawful by reason that it has transgressed the applicable constitutional limitation on his or her detention: NZYQ at [59] (The Court). If that initial evidential burden is discharged, the respondents bear the legal burden of proving that the constitutional limitation has not been transgressed: NZYQ at [59] (The Court). As the High Court explained in NZYQ at [59], this follows from two substantive principles of law. The first is the principle 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". As the High Court noted, this principle is "reflected in the traditional procedure" I have already outlined, but the principle itself is a substantive one of the common law. The second principle is the principle of constitutional law 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". See also Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 222 (Williams J). 75 In this case, the respondents conceded that the applicant had shown "probable cause" for the issue of a writ of habeas corpus. That acceptance was based on the facts that the applicant requested voluntary removal from Australia in July 2023, and that discussions with Iran and Iraq had not yet been successful in achieving the removal of the applicant from Australia. I understood this to be a concession on the part of the respondents that the applicant had discharged the initial evidential burden of establishing that there is reason to suppose that his detention has ceased to be lawful by reason that it has transgressed the applicable constitutional limitation on his detention, as discussed by the High Court in NZYQ.

The issue in this case 76 For these reasons, it was common ground that the applicant's entitlement to a writ of habeas corpus turns on the single question whether the respondents have established that there is a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future.

Applicant's submissions 77 The applicant framed the issue before the Court as involving "prediction in the present focussed on what is a real prospect in the reasonably foreseeable future". Invoking the decision of Mortimer J in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60], the applicant submitted that the reasonably foreseeable future is an "ambulatory" period that nevertheless calls for an "assessment … which can be made on the basis of probative material, without extending into guesswork". The applicant submitted that, with respect to a person who has been detained for a long period and for whom attempts at removal have been underway, the reasonably foreseeable future will usually extend to only a few months, citing Sami v Minister for Home Affairs [2022] FCA 1513 at [148]-[149] (Mortimer J). 78 Counsel for the applicant submitted that the past rationally informs that exercise. They relied in particular on the statement of the Full Court in a different context in CKL21 v Minister for Home Affairs [2022] FCAFC 70; 293 FCR 634 at [74] (Moshinsky, O'Bryan and Cheeseman JJ) - In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity. 79 The applicant also stressed that the burden of proof lay with the respondents to establish lawful justification for his detention. It was submitted that s 140 of the Evidence Act requires the respondents to meet this burden on the balance of probabilities, taking into account the nature of the cause of action and the subject matter of the proceeding. In the applicant's submission, the fact that the application concerns the deprivation of liberty means that the evidence required to meet the civil standard must reach a level that can be described as "clear and cogent": see McHugh at [57], [60] (Allsop CJ), [90] (Besanko J), [281], [294], [340] (Mortimer J). 80 The applicant submitted that a "real prospect" of an event occurring requires more than that the event might "arguabl[y]" happen (citing Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [20] (French CJ and Gummow J)), and more than a "mere possibility" (citing Perazzoli v BankSA, a division of Westpac Banking Corporation Ltd [2017] FCAFC 204 at [107], [134] (Perram, Foster and Murphy JJ)). 81 The applicant also relied on factual analogies with, and distinctions from, previous cases in support of the submission that the Court cannot be satisfied that there is a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future. Those cases included - (a) cases that preceded Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562, which applied a test analogous, in the applicant's submission, to that established in NZYQ; (b) Sami, in which Mortimer J made factual findings on the hypothetical basis that Al-Kateb were to be overturned; (c) NZYQ itself, which in fact overturned Al-Kateb; and (d) cases decided since NZYQ. 82 It is convenient to state here that factual findings in other cases are not binding, and one should not reason from factual conclusions in one case to a factual conclusion in another. One should be mindful that observations made by judges in the course of deciding issues of fact in other cases ought not to be treated as laying down rules of law: Teubner v Humble (1963) 108 CLR 491 at 503 (Windeyer J); Hahn v Conley (1971) 126 CLR 276 at 294 (Windeyer J); Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98; 288 FCR 657 at [29] (Logan, Charlesworth and Wheelahan JJ); Howe v Zuchowski [2024] VSCA 56 at [240] (Beach and Lyons JJA and J Forrest AJA). However, one of the characteristics of our legal system is that legal principles, including the organising principles for the application of statutory provisions, are developed through decided cases, and that "it is the insight of the common law that wisdom can be drawn from previous examinations of similar problems": Scott v Copenhagen Reinsurance Co (UK) Ltd [2003] 2 All ER (Comm) 190 at [33] (Rix LJ). I understood counsel for the applicant to accept that the previous cases that were cited were of utility in this sense, and that they afforded illustrations of the application of the "real prospect" test and no more.

The applicant's five points 83 At the hearing, counsel for the applicant submitted that there are five independent reasons why there is no real prospect of the removal of the applicant becoming practicable in the reasonably foreseeable future - (1) The applicant is medically unfit to travel anywhere. (2) The applicant has no valid travel document. (3) There is a statutory preclusion arising from ss 196(1) and 198AD on the removal of the applicant anywhere other than a regional processing country - a category that does not include Iran or Iraq. (4) There is no real prospect of the removal of the applicant to Iran becoming practicable in the reasonably foreseeable future. (5) There is no real prospect of the removal of the applicant to Iraq becoming practicable in the reasonably foreseeable future.

The applicant's third point prevails 84 For reasons that I will explain, I am persuaded as to point (3), which is sufficient to give the applicant the relief which he seeks, because it has the supervening effect that, as matters stand, there is a legal preclusion on the removal of the applicant to Iran or Iraq, and there is otherwise insufficiently cogent evidence of a real prospect that the removal of the applicant to a regional processing country will become practicable in the reasonably foreseeable future. 85 However, to accommodate the prospect that this matter goes further, I will address the other matters that were advanced on the assumption that s 198 applies to the applicant, before addressing in detail the applicant's third point concerning the application of s 198AD.

Removal to Iran or Iraq 86 The following reasons in relation to removal to Iran or Iraq are given on the hypothesis, which I have not accepted, that s 198AD does not apply to the applicant. 87 In relation to the prospect of removal to Iran or Iraq pursuant to s 198, it would only be necessary that there be a real prospect of removal of the applicant to one country becoming practicable in the reasonably foreseeable future. Even if there were no such prospect in relation to Iran, the existence of such a prospect in relation to Iraq would be enough to bring the operation of ss 189(1) and 196(1) within the bounds of constitutional validity. As a result, the applicant's points (4) and (5) above are not independent. Nor, as I will explain, can the applicant's point (2) above be separated from points (4) and (5). Based on evidence I will set out in more detail, I am satisfied that a real prospect of removal to Iran or Iraq turns on the prospect of whether the applicant can obtain a travel document from Iran or Iraq, which in turn is a consequence of whether Iran or Iraq will recognise him as a citizen, or perhaps as someone entitled to citizenship.

Submissions of the applicant in relation to removal to Iran or Iraq 88 Counsel for the applicant submitted in writing that it would follow from the fact that the applicant is stateless that there is no real prospect of his being removed from Australia in the reasonably foreseeable future, because a stateless person is one whom no State accepts responsibility to accept. In support of the claim that the applicant is stateless, the applicant pointed to several features of the evidence, including: the finding of the delegate of the Minister in October 2017 that the applicant was stateless; the applicant's own claims to this effect from his arrival until now; the position of the Iranian authorities that the applicant is not an Iranian citizen; the findings of the Immigration Assessment Authority that the applicant is not a citizen of Iraq; and the past position of the Australian government that the applicant is not a citizen of Iraq. 89 With respect to his fitness to travel, the applicant relied at the hearing upon a "Fitness to Travel" assessment that was conducted on 20 November 2023 by a registered nurse on behalf of International Health and Medical Services. That assessment stated that the applicant was not fit to travel - due to recent alleged assault that requires further investigation for injury requiring CT brain that is scheduled on the 21/11/2023. This is required in order to properly determine fitness to travel. 90 Counsel for the applicant informed the Court that this assessment was produced by the respondents on 30 May 2024, as one of the attachments to the Pre-Removal Clearance that the applicant had requested that the respondents produce. The applicant submitted that it was significant that the assessment had been relied upon as recently as 15 May 2024, when the Pre-Removal Clearance Minute was completed. In these circumstances, the applicant submitted that the respondents had not discharged their burden of proving, by clear and cogent evidence, that the applicant was fit to travel anywhere. As a result, so the submission went, the Court could not be satisfied that there was a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future. 91 On the premise that s 198 applied to the applicant's detention, the applicant referred to the history of events since 5 July 2023, submitting in respect of Iran that the Iranian authorities had both failed and refused to issue any travel document to the applicant, as well as informed the respondents in writing that the applicant is not Iranian. For this reason, the applicant submitted that there was no real prospect that the applicant would be removed to Iran in the reasonably foreseeable future. 92 With respect to Iraq, the applicant drew attention to the fact that, until recently, it had never been suggested by anyone that the applicant had any right to enter and remain in Iraq. The applicant pointed to the fact that the Immigration Assessment Authority had repeatedly found that the applicant was not an Iraqi citizen. The applicant further referred to the interview conducted between the Iraqi embassy and the applicant on 22 April 2024, and the provision of the applicant's Iranian identity documents to the Iraqi embassy on the same day. In this context, it was submitted that the failure of the Iraqi embassy to confirm that the applicant is an Iraqi citizen assumed significance. Counsel characterised the prospect of the Iraqi authorities recognising the applicant as an Iraqi citizen as a "hope" and a "mere un-foreclosed possibility". 93 The applicant also made submissions about the effect of Mr Nette's evidence concerning the requirements that need to be satisfied for the Iraqi embassy to issue a travel document. Most relevantly, the applicant drew attention to the need for two Iraqi identity documents, which the applicant submitted he did not possess and could not furnish. The applicant submitted that this presented an independent barrier to his removal to Iraq, which would stand in the way of removal even if the Iraqi government were to recognise the applicant as an Iraqi citizen. Even putting his asserted statelessness to one side, the applicant submitted that he has no travel document. The applicant also submitted that there is nothing to indicate he is able to obtain one lawfully. Accordingly, the applicant submitted that this was a practical impediment to his removal from Australia, since a travel document is required to travel internationally. 94 The applicant also submitted that it was unrealistic to suggest that the applicant could obtain Iraqi citizenship in the reasonably foreseeable future, having regard to - (a) the scant evidence about any previous Iraqi citizenship the applicant or his family may have held; (b) the applicant's lack of Iraqi identity documents; (c) the Iraqi embassy's asserted position that the applicant's Iranian documents are insufficient to determine his Iraqi citizenship; (d) the applicant's inability to furnish any further information concerning his status at the interview with the Iraqi embassy; and (e) country information showing that regaining Iraqi citizenship would require a representative of the family to travel to Iraq, in circumstances where the evidence is that no member of his family is willing or able to do so. 95 Separately, the applicant submitted in writing that it is not practicable to remove the applicant to Iraq before Australia has determined that it does not owe him non-refoulement obligations in respect of Iraq. In support of this submission, the applicant referred to Australia's policy against removing people who have been found to be owed protection by Australia to the countries in respect of which they are owed protection. The applicant submitted that there has been no assessment of whether the applicant is owed non-refoulement obligations in respect of Iraq. Until such an assessment occurs, the applicant submitted, there is no real prospect of his removal in the reasonably foreseeable future. The submission was not put on the basis that there was any statutory prohibition on the removal of the applicant to Iraq in these circumstances, as there would be if a relevant protection finding had in fact been made: see Migration Act s 197C.

Submissions of the respondents in relation to removal to Iran or Iraq 96 Counsel for the respondents submitted that there remains a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future. The respondents founded their case principally on the submission that the prospect of removal of the applicant to either Iran or Iraq remains real. 97 As a starting point, the respondents submitted that it was important to note that the applicant only "commenced cooperating in efforts to remove him from Australia" in July 2023. I understood the thrust of this submission to be that care must be taken when considering how long the applicant has been in detention, and how much delay there has been in effecting the removal of the applicant from Australia. 98 The respondents identified three matters of principle arising from the High Court's decisions in NZYQ and ASF17 v Commonwealth [2024] HCA 19, which assist, in the respondents' submission, in the resolution of the factual question at issue here. 99 First, the respondents referred to the following statement in the joint judgment in ASF17 at [35] - For the removal of an alien from Australia under s 198(1) or s 198(6) of the Act to be practicable, there must first and foremost be identified a country to which that alien might be removed, and removal of that alien to that country must be permissible under the Act. 100 The respondents submitted that no question of impermissibility arises in this case, because the applicant is not the subject of a protection finding for the purposes of s 197C. I note in passing that this passage, and other passages from ASF17, are directly relevant to the assessment of the applicant's submission concerning the consequences of there having been no consideration of whether the applicant is owed protection obligations in respect of Iraq. 101 Secondly, the respondents submitted by reference to ASF17 at [41] that, where a country has been identified to which a detainee might permissibly be removed under s 198(1) - … the question of whether there is a real prospect of removal of the detainee from Australia to that country becoming practicable in the reasonably foreseeable future is a question of whether there are steps which are practically available to be taken which, if taken, can realistically be predicted to result in the removal of the detainee to that country in the reasonably foreseeable future. 102 Thirdly, the respondents submitted that where those steps include administrative processes directed to removal which require the cooperation of a detainee, and in which the detainee has the capacity to cooperate, "those steps are to be regarded as remaining practically available to be taken in circumstances where the detainee refuses to cooperate in the taking of them": ASF17 at [41]. 103 With respect to the applicant's fitness to travel, the respondents relied on the email that was in evidence from "Corporate Affairs" at International Health and Medical Services to the applicant's solicitor on 11 December 2023. That email relevantly stated - A CT (non-contrast) was conducted on 4 December 2023. The report was unremarkable and provides the following conclusions; No acute intracranial haemorrhage. Features of sinusitis, as described. 104 The respondents submitted that this email was evidence that a CT scan of the applicant's brain was conducted on 4 December 2023. The respondents also pointed to an earlier email in the same chain, dated 29 November 2023, in which Corporate Affairs informed the applicant's solicitor that the applicant tested positive for COVID-19 on 23 November 2023. Taken together, the respondents submitted that the evidence showed that the scan foreshadowed by the registered nurse on 20 November 2023 was conducted on 4 December 2023, and that the scan revealed no features that would prevent the applicant from travelling. The respondents also submitted that the registered nurse's assessment was expressed to expire on 15 December 2023, and should not be understood as providing any indication as to the fitness of the applicant to travel now or in the reasonably foreseeable future. 105 The respondents relied on the series of administrative steps that had been taken since 23 July 2023, when the applicant formally requested removal from Australia under s 198(1) of the Migration Act. I have already set out my findings about those steps; those findings materially accord with the account advanced by the respondents. 106 Although senior counsel for the respondents acknowledged that the point was pressed only faintly, the respondents claimed that there remains a real prospect of removal of the applicant to Iran on the basis that the applicant is at least potentially entitled to Iranian citizenship and that, were the applicant to provide information as to his family's Iranian citizenship, there would be steps practically available to the Department to effect his removal. The basis of this submission was that country information suggested that an adult with an Iranian mother can acquire Iranian citizenship. The respondents also referred to a statement made by the applicant's brother to Australian embassy staff in 2022 that he and the applicant's mother had acquired Iranian citizenship in 2000 or 2001. The respondents further called in aid findings made by the Immigration Assessment Authority that the applicant had become an Iranian citizen, and certain circumstances the respondents submitted supported the inference that the applicant was in fact an Iranian citizen. 107 The respondents asked the Court to infer that the applicant is at least potentially entitled to Iranian citizenship, and to infer that there are steps practically available to the applicant to assist the Department to effect his removal to Iran, namely: procuring proof of his mother's Iranian citizenship, and supplying the proof which his brother may have used in order to obtain Iranian citizenship, which may equally be applicable to him. The respondents submitted that if the applicant took these steps, "there would be a real prospect that it could prove to the Iranian [e]mbassy that the applicant is entitled to Iranian citizenship, which may persuade Iran to accept him (whether or not it grants him citizenship at the same time)". This was supported, in the respondents' submission, by the Iranian embassy's statement on 14 December 2023 that "if [the applicant] presents the documents that show that he is Iranian, it is possible to issue Laisse Passer". 108 The respondents placed greater weight on their submissions concerning removal to Iraq. With respect to the prospects of the removal of the applicant to Iraq becoming practicable in the reasonably foreseeable future, the respondents submitted that what must be shown is a "prospective and probabilistic" fact: see NZYQ at [60]. In the respondents' submission, this calls for an assessment of the likelihood of the occurrence of a particular future event. 109 The respondents submitted that the likelihood of removal to Iraq hinges upon the likelihood that the Iraqi embassy will determine that the applicant is a citizen of Iraq or that he is entitled to such citizenship. The respondents pointed to the evidence of Mr Nette that, if the embassy were to determine that the applicant was, or was entitled to become, an Iraqi citizen, then the Department would be able to obtain a travel document for him and facilitate his removal to Iraq within about four weeks. The respondents submitted that they were not required to prove that the applicant actually is, or actually is entitled to be, an Iraqi citizen. The respondents thus framed the relevant factual question as whether there is a real prospect of the Iraqi embassy finding that the applicant is a citizen or is entitled to become one. On that question, the respondents submitted that - (a) the Iraqi embassy had advised that an interview with the applicant, together with his Iranian identity documents, would be sufficient to determine whether he was an Iraqi citizen; (b) that interview was conducted on 22 April 2024, and the documents were provided on the same day; and (c) the Iraqi Ministry of Foreign Affairs is still actively considering the information obtained in that interview. 110 In that context, the respondents submitted that there is a real prospect of the Iraqi embassy determining that the applicant either is, or is entitled to become, an Iraqi citizen, having regard to the following facts - (a) the applicant was born in Iraq; (b) Iranian identity documents "confirm" that the applicant is a national of Iraq, and was born in Iraq; and (c) Iranian identity documents for the applicant's father, mother, and brother similarly show their nationality as Iraq, and that his father and mother were born in Iraq. 111 The respondents referred to country information that was in evidence to the effect that the applicant would either be, or be entitled to become, an Iraqi citizen if his father or mother were Iraqi. 112 The respondents further submitted that the Iraqi embassy has only had the information it considers necessary to determine the question of citizenship since 22 April 2024. It is unsurprising, in the respondents' submission, that Iraq should take some time to verify information provided by the applicant. The respondents submitted that the Court cannot infer from a one-month processing period that Iraq will not determine that the applicant is a citizen or that he is entitled to citizenship.

Framing the issues for determination 113 As I have mentioned, I have given consideration to the following issues raised by the parties to accommodate the possibility that this matter goes further. 114 As I have already explained, the sole substantive issue in this case is whether the respondents have established that there is a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future. As a result of the manner in which the parties joined issue on this factual question, the issue before the Court is, in fact, more confined than this. The issue is more confined in several ways. 115 First, there is no suggestion from the respondents that the applicant is a citizen of any country other than Iran or Iraq. Nor do the respondents suggest that there is any real prospect of the applicant being removed from Australia to any country other than Iran, Iraq, or a regional processing country. For the purposes of this section of the reasons, the main question is whether there is a real prospect of the removal of the applicant to Iran or Iraq becoming practicable in the reasonably foreseeable future. If s 198AD applies to the applicant, which I will address later, the alternative issue is whether there is a real prospect of the removal of the applicant to a regional processing country becoming practicable in the reasonably foreseeable future. 116 Secondly, it is common ground that it would not be practicable to remove the applicant to Iran or Iraq unless a travel document were issued to him by the authorities of the relevant country. A laissez-passer is a form of travel document. 117 Thirdly, there is unchallenged evidence before the Court, relied upon by both sides, as to the conditions that, at least to the best of the Department's knowledge, have to be satisfied for the applicant to be granted a travel document by Iran or Iraq, respectively. That evidence - which I have mentioned, but not addressed in any detail - was contained largely in Mr Nette's first affidavit and Ms Saravanamuthu's second affidavit. 118 With respect to Iran, the evidence suggests that Iran accepts Iranian nationals who are returning voluntarily, and will issue a laissez-passer to such a person to facilitate travel to Iran. According to Mr Nette, the general process to be followed for obtaining an Iranian laissez-passer is as follows - (a) the Iranian embassy must be provided with a completed and signed laissez-passer application form, original Iranian identity documents (or, with the permission of the Iranian Ministry of Foreign Affairs, copies of original documents that have been sighted by the Ministry in Iran), a handwritten letter from the applicant written in their native language, a current passport photograph, and a return flight itinerary to Iran, though this itinerary can be provided after the application is lodged; (b) a fee of $34.00 must be paid to the Iranian embassy for the service; and (c) the applicant must participate in a telephone interview with the embassy. 119 According to Mr Nette, examples of identity documents that have successfully been used to obtain a laissez-passer to Iran include Iranian drivers' licences, Iranian passports, Iranian national identity cards, and Iranian birth certificates. An important qualification on this general process is the fact that a person without original Iranian identity documents can still obtain an Iranian laissez-passer if a family member or friend of the person attends the Ministry of Foreign Affairs in Iran and provides written documentation proving the person's identity. If satisfied that the person is an Iranian national, the Iranian authorities will provide a reference number that will enable the person to obtain a travel document from the Iranian embassy. 120 With respect to Iraq, the evidence suggests that the Iraqi authorities do issue travel documents to facilitate the voluntary return of Iraqi nationals to Iraq. According to Mr Nette, the general process to be followed for obtaining an Iraqi travel document is as follows - (a) the Iraqi embassy must be provided with a completed and signed application form, a current passport photograph, copies (or, preferably, originals) of two Iraqi identity documents, a telephone number for the embassy to use to interview the applicant, a handwritten letter requesting assistance to obtain a travel document and return to Iraq, addressed to the Iraqi embassy, and a copy of a return flight itinerary; (b) a fee of US$3.00 must be paid; and (c) the applicant must in fact be interviewed by the Iraqi authorities. 121 Importantly, the evidence established that both Iran and Iraq will only issue travel documents to a person to facilitate their removal from Australia if satisfied - by the provision of identity documents or, perhaps exceptionally, by some other process - that the person to be removed is a citizen of Iran or Iraq, respectively. In other words, a person can only be removed to Iran or Iraq if the person is accepted to be a citizen of Iran or Iraq, respectively - at least via these general processes, which were the primary processes relied upon by the respondents. 122 The applicant submitted that, on the evidence, the only way that a person can obtain an Iraqi travel document is by complying with the process set out above. The applicant emphasised that that process requires a person seeking a travel document to give the Iraqi embassy copies or originals of two Iraqi identity documents. The applicant pointed to the uncontested evidence of his solicitor to the effect that the applicant does not possess any Iraqi identity documents, and never has. On this basis, the applicant submitted that he would not be able to obtain an Iraqi travel document irrespective of his citizenship status. That is, the applicant said that even if the Iraqi authorities came to the view that the applicant was an Iraqi citizen, he would not be able to obtain a travel document because he did not have any Iraqi identity documents. 123 I do not accept these submissions. The best evidence came from the applicant's solicitor, who stated in her file note of the interview with the Iraqi embassy: "Embassy will issue temporary passport so [the applicant] can travel to [Iraq] once they can confirm his citizenship." In the context of the file note, which is a record of things said and done at the interview, the only reasonable inference is that the Iraqi consular official conducting the interview made a representation to the effect recorded in the applicant's solicitor's file note. Nor do I see any reason to question the genuineness of that statement in the circumstances of this case. I therefore consider that whether the Iraqi authorities will issue a travel document to the applicant turns on whether the Iraqi authorities become satisfied that the applicant is a citizen of Iraq. 124 Leaving aside the issue of identity documents and citizenship, I am satisfied that all of the steps required by the Iranian and Iraqi authorities have either been taken, or could practicably be taken, by the applicant and Australian government officers working together. In this regard, I refer to the 7 August 2023 request for a laissez-passer that a Border Force officer lodged with the Iranian embassy. That request enclosed a completed laissez-passer application, a letter handwritten by the applicant, relevant telephone numbers, and passport photographs, amongst other things; it also indicated that a flight itinerary would be provided. Likewise, it would be reasonably practicable for similar documents and information to be provided to the Iraqi embassy. 125 In this way, the issue whether there is a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future ultimately resolves down to whether there is a real prospect of either the Iranian or Iraqi authorities accepting that the applicant is a citizen (or, perhaps, is entitled to become a citizen) of Iran or Iraq, respectively. It follows that I accept the respondents' submission set out at [109], and would make the same point with respect to the prospects of the applicant being removed to Iran. 126 Additionally, there is a separate issue concerning whether there is a real prospect of the removal of the applicant to Iraq becoming practicable before Australia has determined that it does not owe him non-refoulement obligations in respect of Iraq.

The requisite threshold 127 As I have explained, the parties accepted that the respondents bear the onus of proving that the required "real prospect" exists in the present case. That much is beyond dispute in light of the High Court's reasons in NZYQ, especially at [60]. In the same paragraph, their Honours explained in greater detail the nature of the burden that the defendants in that case were required to meet - Whilst the proof was required to be to a standard sufficient to support the making of a finding of fact to the level of satisfaction appropriate in a civil proceeding where individual liberty is in issue, the prospective and probabilistic nature of the fact in issue (that is, the fact of a real prospect of the plaintiff's removal from Australia becoming practicable in the reasonably foreseeable future) would have the potential to be confused were the standard of proof to be "on the balance of probabilities". (Footnotes omitted.) 128 The Court went on to say at [61] - The notions of the practicability and the foreseeability of removal embedded in the expression of the constitutional limitation accommodate "the real world difficulties that attach to such removal". The real world context also entails that proof of a real prospect must involve more than demonstration of a mere un-foreclosed possibility. (Footnotes omitted.) 129 For this reason, it is important to be cautious when considering the applicant's submissions concerning the standard of proof required, which was said to be proof on the balance of probabilities taking account of the nature of the proceeding as one concerned with personal liberty. 130 Returning to the subject in ASF17, the High Court stated at [33] - The precise question of characterisation to which the question whether there is a real prospect of removal of an alien from Australia becoming practicable in the reasonably foreseeable future is directed is whether the detention of the alien under ss 189(1) and 196(1) of the Act is justified, at the point in time when an application for a writ of habeas corpus is determined, as reasonably capable of being seen to be necessary for the identified statutory purpose of removing the alien from Australia under s 198(1) or s 198(6) of the Act. 131 In this way, the factual question of characterisation that is raised by the constitutional limitation remains tied to its underlying rationale. What the respondents must show to demonstrate a real prospect of the removal of the applicant becoming practicable in the reasonably foreseeable future, then, can only be determined while keeping in mind that the underlying question is whether the detention is reasonably capable of being seen to be necessary for the purpose of removing the applicant from Australia. 132 The same principle applies not just to the requirement for a "real prospect", but also to the requirement that there be a real prospect of removal becoming practicable "in the reasonably foreseeable future". There can be no hard-and-fast rules, in this context, about how far the reasonably foreseeable future extends. Factual findings made in other cases decided in other contexts, or before the decisions of the High Court in NZYQ and ASF17, about what period of time constitutes the "reasonably foreseeable future" are therefore of limited utility in deciding the present case. Nor is it appropriate to look at the words "reasonably foreseeable future" in isolation, and in that way to ascribe to them a duration, however imprecise. The correct approach is to consider the expression of the constitutional limitation in its entirety, with the need for a "real prospect" of removal becoming practicable "in the reasonably foreseeable future" expressing, in mutually reinforcing terms, the requirement that detention be reasonably capable of being seen as necessary for the purpose of removal. 133 For these reasons, I do not accept any submission made on the applicant's behalf that the Court should proceed on the basis that the reasonably foreseeable future in this case can be said, in some abstract way, to extend to only a few months. Adopting that approach would uncouple the expression of the constitutional limitation from its underlying rationale, which is concerned with characterising punishment as punitive in circumstances where it is not reasonably capable of being seen as necessary to the pursuit of a legitimate non-punitive purpose - in this case, removal of the applicant from Australia. 134 Noting that ASF17 was a case in which removal of the appellant was seen as turning not on the actions of foreign authorities, but on the cooperation of the appellant, the statement at [41] which I extracted at [101] above is, with respect, still instructive: the question is whether "there are steps which are practically available to be taken which, if taken, can realistically be predicted to result in the removal of the detainee to that country in the reasonably foreseeable future".

The applicant is fit to travel 135 The issue of the applicant's fitness to travel was raised by counsel for the applicant for the first time at the hearing of the proceeding after evidence had closed. As I recounted earlier, after the point was raised, I gave leave to the respondents to reopen their evidentiary case in order to tender some additional documents. The reason for the applicant raising the point at this late stage was said to relate to the provision by the respondents of the documents referred to in the Pre-Removal Clearance Minute of 15 May 2024, and in particular the "Fitness to Travel" assessment dated 20 November 2023. That did not fully explain why the point was not identified before the close of evidence in circumstances where there had been agreement on the issues that were in controversy and written submissions had been filed. 136 The crux of the applicant's submissions was that the reference in the Pre-Removal Clearance Minute to the 20 November 2023 assessment means that that assessment "was the current one, upon which an officer was relying" on 15 May 2024. The applicant asked the Court to infer from this that the conclusion in the assessment - namely, that the applicant was not fit to travel - also remained current as at 15 May 2024. This was said to follow from the fact that the assessment was provided to the officer conducting the Pre-Removal Clearance and the apparent absence of any updated assessment as to the applicant's fitness to travel. 137 This sequence of events has to be understood in its context. 138 On 8 November 2023, the applicant's solicitor emailed the Australian Border Force, International Health and Medical Services, and Serco, a contractor employed by the Australian government, in relation to an alleged attack by Serco officers on the applicant. 139 On 15 November 2023, "Corporate Affairs" of International Health and Medical Services emailed the applicant's solicitor to explain the various forms of medical treatment that had been afforded to the applicant in the aftermath of the alleged attack. 140 On the same day, the applicant's solicitor sent an email to Corporate Affairs, which stated in relevant part - [The applicant] has instructed that he has pain in his ears and head at night since the incident, and he forgot to mention this to the GP due to his memory issues. Please could IHMS investigate this matter and provide [the applicant] with appropriate treatment as soon as possible. 141 On 17 November 2023, the applicant consulted a general practitioner and mentioned that he was having headaches at the back of his head. The general practitioner referred the applicant for a "CT scan of his head". 142 It was then on 20 November 2023 that the registered nurse of International Health and Medical Services made the "Fitness to Travel" assessment, which concluded that the applicant was not fit to travel "at this time due to recent alleged assault that requires further investigation for injury requiring CT brain that is scheduled on the 21/11/2023". The nurse described the CT brain as "required in order to properly determine fitness to travel". 143 While the scan appears to have been scheduled for 21 November 2023, it only took place on 4 December 2023. This delay may be explained, at least in part, by the applicant's COVID-19 diagnosis, which occurred on 23 November 2023. 144 In my view, the email from Corporate Affairs to the applicant's solicitor on 11 December 2023 can only be understood as referring to the outcome of a CT scan of the applicant's head that occurred on 4 December 2023. In light of the timeline I have set out, that CT scan must be understood to have been the "CT scan of [the applicant's] head" or "CT brain" that was foreshadowed by the general practitioner and the registered nurse, respectively. 145 Further, the statement in the email to the applicant's solicitor that "[t]he report … provides the following conclusions" - being that there was "[n]o acute intracranial haemorrhage", but that there were "[f]eatures of sinusitis" - can only be understood as a recount of what was stated in a report completed by a person who performed or analysed the applicant's CT brain scan. In other words, the email asserts (and I accept) that the applicant underwent a CT brain scan that showed that the applicant did not have acute bleeding inside his skull, but did have signs of inflamed sinuses. 146 The CT brain scan occurred in the context of the applicant reporting pain in his head after an alleged assault by Serco officers. In that context, the applicant was referred for a brain scan. The outcome of the brain scan, which must be understood as directed to ruling out risks that medical practitioners had identified as a result of the applicant's medical history, was that the applicant did not have a brain bleed, and instead seemed to have sinusitis. Read fairly and in context, the email indicates that the results of the brain scan were that the applicant had not sustained a brain injury as a result of the alleged assault, as the medical practitioners may previously have considered possible. In other words, the scan that was "required in order to properly determine fitness to travel" showed that the injury that it had been feared could affect the applicant's fitness to travel had not actually been sustained. 147 What, then, is the position in relation to the prospects of the applicant becoming fit to travel in the reasonably foreseeable future? 148 The first point to note is that, as I have explained, the applicant bears an evidentiary onus to put the lawfulness of his detention in issue. The respondents conceded in their written submissions that the applicant had discharged that evidentiary onus. That concession must be understood in its context. The respondents initially accepted that the applicant had discharged his onus before being made aware of the two significant developments in the applicant's case, being the claim that the applicant is not fit to travel, and the reliance upon s 198AD of the Migration Act. I therefore do not treat the respondents' concession as extending to a concession that the applicant had shown there was some reason to doubt the lawfulness of his detention on the basis of his fitness to travel. 149 I have already referred, at [54]-[55] above, to the letter sent by the respondents' solicitor to the applicant's solicitor dated 21 March 2024, which set out the respondents' understanding of the applicant's case. That letter included the proposition that - the applicant does not suffer from any medical condition that would prevent him from being removed from Australia or prevent him from cooperating with such removal … 150 The applicant's solicitor confirmed on 27 March 2024 that this proposition was consistent with the applicant's case. 151 This exchange occurred in the context of orders of the Court requiring the parties to prepare their evidence in a staged manner. Evidently, the respondents were endeavouring to understand the case on which the applicant would rely to discharge his evidentiary onus of showing some reason to think that his detention was unlawful. While, as counsel for the applicant submitted, the applicant's solicitor's confirmation of the accuracy of the 21 March 2024 letter was not in the nature of a pleading, it still played a significant role in shaping the understanding of the respondents and the Court as to the issues that were genuinely in dispute. 152 Nevertheless, the respondents made substantive submissions at the hearing on the question of the applicant's fitness to travel. The hearing proceeded on the basis that the respondents bore the legal onus of proving that there was a real prospect of the applicant becoming fit to travel in the reasonably foreseeable future. Indeed, this is consistent with the proposition that the legal burden is always stable, irrespective of whether any applicable evidentiary onus has been discharged: see Purkess v Crittenden (1965) 114 CLR 164 at 168 (Barwick CJ, Kitto and Taylor JJ). While senior counsel for the respondents accepted, at one point, that the respondents did bear the legal onus on this question, that does not amount to a concession that the applicant's evidentiary onus had been discharged. 153 Viewed in isolation, the 20 November 2023 assessment could be seen to support the claim that the applicant is not (or at least was not) fit to travel. But the assessment should not be viewed in isolation. Contextual circumstances satisfy me that the assessment sheds no light on whether the applicant is currently fit to travel, let alone on whether he will become fit to travel in the reasonably foreseeable future. 154 First, for the reasons I have already set out, I am satisfied that the assessment only concluded that the applicant was not fit to travel on the precautionary basis that he was in need of a CT brain scan "in order to properly determine fitness to travel". That CT bran scan occurred, and any risk of injury was ruled out. The assessment does not support the conclusion that there was any other reason why the applicant was not fit to travel. Indeed, the registered nurse had not physically assessed the applicant, and appears to have acted purely on the applicant's medical records, including in relation to the 17 November 2023 general practitioner's appointment that resulted in a CT scan referral. 155 Next, the assessment was expressed to expire on 15 December 2023. Even on its own terms, then, the assessment was not intended to make any statement as to the prospects of the applicant being fit to travel after that date. Nor does the fact that the assessment was placed before the officer conducting the Pre-Removal Clearance on 15 May 2024 affect this analysis. I accept that I should infer that this "Fitness to Travel" assessment is the most recent one that has been conducted. But I am not persuaded that I should therefore infer that the assessment itself remains up to date. The thrust of the applicant's submission on this subject was that if the assessment was referred to on 15 May 2024, then the respondents themselves were treating the information in the assessment as current, which in turn meant that it is in fact current. In my view, however, the reference in the Pre-Removal Clearance Minute to the assessment simply shows that the Minute was based on the most recent documents that were available, not that the assessment was current. In the Minute itself, the assessment is only relied upon insofar as it helps determine whether the removal of the applicant would be consistent with Australia's protection obligations, which was the purpose for which the Pre-Removal Clearance was conducted. 156 For these reasons, I do not give any weight to the 20 November 2023 assessment on the question of the applicant's current or future fitness to travel. Aside from the evidence to which I have referred, there was little evidence concerning the applicant's fitness to travel. 157 In evidence was a "Removal Planning Interview" conducted with the applicant on 12 July 2023. That interview was conducted for the purposes of planning the removal of the applicant from Australia, and it contains questions on issues such as the logistics of removing a person to a particular country. Among the issues touched on in the interview were subjects such as citizenship, but also subjects such as how upon arrival at the destination the person would get from the airport to home, luggage limits on removal flights, and whether the person to be removed had suitable clothing for the climate of the country of return. The interview was therefore squarely directed at practical impediments to removal. One of the questions posed was "Is there anything preventing your return home?". The applicant's answer was, relevantly, "NOTHING". Another question asked was "Have you had your health induction assessment yet?", to which the applicant responded affirmatively, noting that he had issues with his lower back. Nothing in that document suggests that, as at 12 July 2023, the applicant was unfit to travel. To the contrary, the applicant's answers are consistent with him positively considering himself fit to travel. Of course, this precedes the incident culminating in the CT scan of 4 December 2023. But since that scan showed that the applicant had not sustained any brain bleeding, I do not consider that fact to rob this interview of all significance. Rather, the interview provides evidence that the applicant was fit to travel in July 2023, and that he did not have any chronic medical condition that can be presumed to have continued up to the present so that he is presently unfit to travel. 158 The applicant has also not introduced any direct evidence, either from himself or from a medical practitioner, to suggest that he suffers from any ailment that would affect his ability to travel in the reasonably foreseeable future. This fact in itself has great significance, in light of the well-known principle in Blatch v Archer (1774) 1 Cowp 64; 98 ER 969 at 970, cited many times in the High Court, that "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted". The power to adduce evidence that the applicant has some medical ailment that affects his ability to travel lies peculiarly with the applicant. For that reason, I consider the applicant's failure to adduce any evidence as to his present fitness to travel to weigh strongly against the conclusion that he is not fit to travel. I reach this conclusion not on the footing that the applicant bears the legal onus of proof; rather, the point is one about the weight to be attached to the evidence that has been adduced, and inferences to be drawn from the failure of the applicant to adduce evidence on this topic with relevant currency. 159 I should say something additional about the premise of the applicant's submissions on this issue. That premise appeared to be that once the issue of the applicant's fitness to travel was put in issue in a particular way, the issue fell to be considered at large. To put that in concrete terms, the premise appeared to be that once the applicant had pointed to evidence suggesting that he may not be fit to travel because he was in need of a CT scan to assess him for brain injury, the applicant's fitness to travel in general (for whatever reason) was thereby put in issue. 160 I do not consider that to be the correct approach. If the applicant discharged his evidentiary burden, he did so by raising an issue as to whether he was fit to travel for a particular reason. It did not then fall to the respondents, in the discharge of their legal burden, to prove that the applicant was in no other way unfit to travel, by disproving every other possible medical condition that the applicant may conceivably have had. Rather, in accordance with the principles set out in Purkess v Crittenden at 166-9 by Barwick CJ, Kitto and Taylor JJ, the applicant discharged his evidentiary onus by raising a particular prospect; it then fell to the respondents to show on the whole of the evidence that that prospect could not be sustained. In line with Purkess v Crittenden, there could be no cause to require the respondents to negative possibilities that had not been raised by the applicant. On that view, the respondents' legal burden was really directed to the issue raised by the applicant, which was whether by reason of the 20 November 2023 assessment and the matters it revealed there was a real prospect of the applicant becoming fit to travel in the reasonably foreseeable future. That burden was comfortably met. 161 On the evidence before me, I am satisfied that the applicant is fit to travel. For that reason, fitness to travel does not constitute a barrier to the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future.

There is no real prospect of the removal of the applicant to Iran becoming practicable in the reasonably foreseeable future 162 The respondents' position with respect to the prospect of removal of the applicant to Iran was that the Court should infer that the applicant is at least potentially entitled to Iranian citizenship. The respondents submitted that it should also be inferred that there are steps open to the applicant that, if taken, would lead to a real prospect of the Iranian embassy concluding that the applicant is entitled to become an Iranian citizen. Notably, the respondents submitted that this could lead Iran to accept the applicant, regardless of whether it grants him citizenship at the same time. 163 I do not accept these submissions. The scenario posited by the respondents piles conjecture upon conjecture. Viewed as a whole, that scenario runs contrary to the best evidence available as to the prospects of removing the applicant to Iran becoming practicable in the reasonably foreseeable future. The respondents' posited scenario does not rise to the level of showing that there is a real prospect of the removal of the applicant to Iran becoming practicable in the reasonably foreseeable future. 164 The starting point must be the statement of the Iranian embassy on 14 December 2023 to Mr Nette, which relevantly stated - [T]he person named is not Iranian, and apparently he is Iraqi, if he presents the documents that show that he is Iranian, it is possible to issue Laisse Passer … 165 There is nothing in the record to suggest that the Iranian authorities have changed their position since making this statement. The Iranian embassy, which is responsible for issuing travel documents to persons wishing to return to Iran, does not presently accept that the applicant is a citizen of Iran. In line with Mr Nette's evidence concerning the conditions that the Iranian embassy requires to be met before issuing travel documents, it therefore appears that the Iranian embassy will not issue a laissez-passer to the applicant to facilitate his removal to Iran. 166 Unless the position of the Iranian embassy on the applicant's citizenship changes, or the Iranian embassy changes its policy or makes an exception, the removal of the applicant to Iran will not become practicable. The question thus becomes whether the applicants have established a real prospect of such events occurring in the reasonably foreseeable future. 167 The respondents' submissions on this question primarily addressed the applicant's entitlement to Iranian citizenship. The respondents asserted that Iran may facilitate the applicant's removal to Iran even if he did not yet possess Iranian citizenship, as long as he was entitled to it. This was said to be supported by the Iranian embassy's statement on 14 December 2023 that "if [the applicant] presents the documents that show that he is Iranian, it is possible to issue Laisse Passer". That statement, however, does not in fact support the respondents' submission. Construed fairly, and in context, the statement simply states that the embassy could issue a laissez-passer to the applicant if satisfied that the applicant "is Iranian" on the basis of documents (emphasis added). The Iranian embassy's statement therefore provides no basis to conclude that the applicant could be removed to Iran if the Iranian authorities maintained their position that the applicant is not an Iranian citizen. 168 I will nevertheless consider the factual matters raised by the respondents, through the prism of asking whether there is a real prospect of the Iranian authorities accepting the applicant to be a citizen, or granting him citizenship, in the reasonably foreseeable future. 169 A factual premise of the respondents' submissions was that the applicant's mother had acquired Iranian citizenship. This was based on an email sent by a consular official at the Australian embassy in Tehran to an officer of the Department on 9 January 2022. In that email, the consular official recounted a telephone conversation between the official and a man who introduced himself as the applicant's brother. The official recounted that the applicant's brother "said that their mother … became [an] Iranian citizen in … 2000-2001", but that the brother's own case had not yet been accepted. The official also recounted the brother's claim that he had renewed the applicant's non-citizen identity card after the applicant had left Iran. I pause here to note that this last piece of evidence is inconsistent with any suggestion that the applicant in fact held Iranian citizenship at the time of the call. 170 The respondents also relied on a statement in an email from an officer of the Department on 17 January 2022 asserting that searches on an online database had revealed that the applicant's brother's mobile telephone was registered with the surname of his mother. The respondents submitted that this led to the inference that the applicant's brother had acquired Iranian citizenship through his mother. There are several problems with this submission. 171 First, the evidence relating to the citizenship of the applicant's mother was hearsay more than once removed. I am not in a position to test it: I do not know the precise way certain questions were framed, or even what language the alleged conversation took place in. I am not able to get a sense of whether the applicant's brother fully understood the purposes for which certain questions were being asked, or whether his assertions about this mother's nationality were influenced by the (no-doubt unusual) circumstance of a foreign official asking personal questions about the legal entitlement of one's mother to live in Iran. Nor can I get any sense of the reasons why the applicant's brother came to believe that his mother was an Iranian citizen, if in fact he did. 172 Secondly, the respondents themselves submitted that the applicant's brother appeared to have acquired Iranian citizenship by early 2022, which is inconsistent with his apparent assertion on the telephone call that he was not an Iranian citizen. The respondents did not provide any criterion by which I could assess what was true in the applicant's brother's reported statements. 173 Thirdly, the emails between the Australian consular official and the Department show that the officer of the Department was proceeding on the incorrect understanding that only "permanent residents" in Iran can register a mobile telephone number, which was said to suggest strongly that the applicant's family were not stateless. Later in the same email chain, the consular official stated that holders of non-citizen identity cards can in fact "buy mobile phones", which means that the possession of a registered mobile telephone does not entail that the applicant's brother was an Iranian citizen. Nor, in light of the fact that non-citizens can buy mobile telephones, does the fact that the applicant's brother's mobile telephone was registered in his mother's last name suggest that either the applicant or his mother had acquired Iranian citizenship. That circumstance is entirely consistent with the applicant and his family being stateless. It carries no weight on this factual question. 174 The respondents also relied on the applicant's brother's reluctance, in a telephone call on 1 February 2022, to assist the Australian government's inquiries by providing a copy of his identity card. This is weak evidence at best from which to conclude that the applicant's brother was a citizen of Iran on that date, especially taking into account his reported statement on 9 January 2022 that his application for citizenship had not been accepted on that date. 175 The respondents also relied on conclusions reached by the Immigration Assessment Authority as to the credibility of the applicant's assertions that his mother was not an Iranian citizen. I do not consider that I should place any weight on the opinions of executive officers who reached their own conclusions on this topic based on different evidence from that which is before the Court. 176 Other relevant evidence includes the copy of a non-citizen's identity card issued to the applicant's mother. That identity card lists her nationality as Iraqi. It is, however, undated. It is also relevant that no non-citizen's identity card for the applicant's mother was provided with any date. Further, it is relevant that the way in which the applicant's mother was said to have acquired Iranian citizenship was not explained. That carries weight, especially in view of the country information said to be summarised in the decision of the Minister's delegate (upon which the respondents generally relied), which also states that - [t]here can be practical difficulties that effectively preclude individuals with Iraqi origin from acquiring Iranian citizenship … 177 Overall, the evidence concerning the citizenship of the applicant's mother was scant. I am not satisfied on the evidence that the respondents have established that the applicant's mother is a citizen of Iran. 178 In any event, the evidence as to whether the applicant would in fact be able to become an Iranian citizen on that account was confused. The country information produced by the Department of Foreign Affairs and Trade stated that in-country sources had said that "Faili Kurd refugees with paternal Iranian ancestry are eligible for Iranian citizenship" (emphasis added). That country information says nothing about whether Faili Kurds are able to obtain citizenship matrilineally, and does not make clear how recent the paternal Iranian ancestry must be. On that subject, the respondents relied on a statement in the findings of fact of the delegate of the Minister that "a child with an Iranian mother and a foreign father can acquire Iranian nationality after that child reaches 18 years of age". But this is in conflict with the finding of the Immigration Assessment Authority, which was also in evidence, that since 2006 Iranian citizenship can be acquired by maternal descent by those who turn 18 "having been born in Iran to Iranian mothers". In other words, even if the applicant's mother were an Iranian citizen, it does not follow on the evidence that the applicant himself would necessarily be eligible for citizenship. 179 For these reasons, I do not consider that the respondents have proven the primary facts necessary to establish, as a matter of prediction and probabilities, a real prospect of the removal of the applicant to Iran becoming practicable in the reasonably foreseeable future. In circumstances where I have not accepted that the applicant's mother is an Iranian citizen, I regard the prospect of the Iranian authorities facilitating the applicant's removal to Iran to be less than real. The respondents did not advance any other rational basis to conclude that there was a real prospect of the Iranian authorities changing their position on the right of the applicant to enter Iran in the reasonably foreseeable future. In any event, the uncertainties relating to any potential removal to Iran extend well beyond the citizenship status of the applicant's mother. Those uncertainties include whether the applicant would in fact be eligible for citizenship by matrilineal descent and whether relevant documentation exists that could shed light on matters one way or the other. Taken together, these circumstances amount to cascading conjectures and speculation.

There is a real prospect of the removal of the applicant to Iraq becoming practicable in the reasonably foreseeable future 180 It remains, then, to consider the prospect of removal of the applicant to Iraq becoming practicable in the reasonably foreseeable future. On the evidence before me, and on the assumption that s 198 applies to the applicant, I am satisfied that the respondents have shown a real prospect of the removal of the applicant to Iraq becoming practicable in the reasonably foreseeable future. 181 As in the case of Iran, the starting point for determining this question is the current status of efforts to remove the applicant to the country in question. Mr Nette's evidence was that on 7 February 2024, the Deputy Head of Mission at the Iraqi embassy stated that Iraqi authorities would be able to determine whether the applicant is an Iraqi citizen once the documents that had already been provided to the embassy were supplemented by an interview. A note of that meeting that was sent by email to Mr Nette on 14 February 2024 recorded the Deputy Head of Mission as saying that "from the interview he should be able to determine" whether the applicant is a citizen of Iraq. I note the slight discrepancy between these two accounts, as to whether the Deputy Head of Mission said Iraqi authorities "would" or "should" be able to determine the applicant's citizenship status. Given that what is in issue is whether there is a real prospect of removal becoming practicable in the reasonably foreseeable future, this discrepancy is not material. 182 The interview required by the Deputy Head of Mission was conducted on 22 April 2024, and documents were provided on the same day. The next day, the Iraqi embassy told the applicant's solicitor that it would check the identity documents provided. On 26 April 2024, the embassy informed Mr Nette that the embassy was processing its papers with the Iraqi Ministry of Foreign Affairs. On 13 May 2024, the Iraqi embassy stated that the case was still being processed, and asked for patience. The last update provided by the Iraqi embassy was therefore given three weeks before the hearing of this application. 183 The applicant emphasised that the Australian authorities had informed the Iraqi authorities of their view that the applicant was likely to be an Iraqi national on 11 January 2024. The applicant stressed that, in the intervening months, the Iraqi embassy had failed to confirm that the applicant is an Iraqi national. This submission is accurate, but it has the potential to distract from the truly salient considerations. The Iraqi authorities made it plain that they required certain steps to be taken before they would consider the applicant's citizenship status. Those steps were not complete until 22 April 2024. The lapse of time between 11 January 2024 and 22 April 2024 sheds no light on the current prospects of removal of the applicant to Iraq, since that time elapsed for reasons unconnected with the Iraqi government's attitude towards the applicant's citizenship. 184 Now, it may transpire in another case that there is no real prospect of removal becoming practicable despite the embassy of a foreign country still being in the process of considering whether a detainee is a citizen of that country. Cases where the embassy's decision is inordinately or repeatedly delayed, or where there is no rational basis to think that the detainee may be a citizen of the country in question, come to mind as potential examples. But that is not this case. Here, the applicant was born in Iraq. The evidence includes Iranian identity documents that list his nationality as Iraqi. While not decisive, this at least supplies a rational basis for further investigation. The country information on Iraq that was in evidence stated - The Iraqi Nationality Law 2006 established the right to regain Iraqi nationality for those previously denationalised on political, religious or ethnic grounds, and many Faili Kurds have been able to have their Iraqi nationality reinstated. However, the process of reinstatement is reportedly slow and bureaucratic, sometimes taking years to complete, and often requires applicants to pay bribes to officials. Moreover, the documentary requirements are onerous, requiring applicants to provide a copy of their registration from the 1957 census, among other documents that many Faili Kurds are unlikely to possess. While the Iraqi Government claims that 97 per cent of expelled Faili Kurds have regained citizenship, community activists claim thousands of families remain stateless. 185 This country information again suggests that there are rational grounds for thinking that the applicant may be an Iraqi citizen. Further, and most importantly, the evidence suggests that the Iraqi authorities consider it to be an open question whether the applicant is an Iraqi citizen. At least as things stand, the evidence suggests that the Iraqi authorities are taking active steps to satisfy themselves one way or another as to the applicant's right to enter and remain in Iraq. Those active steps are being taken in circumstances where the Iraqi embassy appears to have begun its consideration on around 23 April 2024. That consideration involves liaising with the Iraqi Ministry of Foreign Affairs. While the cause of personal liberty calls for urgency, it is understandable that investigating the citizenship status of a person who left Iraq as a small child almost 40 years ago may take some time. In those circumstances, it would be premature for the Court to conclude that there is no real prospect of the Iraqi authorities recognising the applicant as a citizen. Unlike in some other cases to which the applicant referred, there has been no delay that would be sufficient to give rise to a factual inference that there is no real prospect of removal becoming practicable in the reasonably foreseeable future. 186 The applicant also made submissions concerning the prospects of the Iraqi authorities granting him citizenship. Given that there is a real prospect of the Iraqi embassy recognising the applicant as a person who already possesses Iraqi citizenship, it is not necessary to consider the prospects of the applicant obtaining Iraqi citizenship any further. 187 For these reasons, I find that there is a real prospect that the Iraqi authorities will determine that the applicant is a citizen of Iraq in the reasonably foreseeable future. I also find that, if that occurs, there is a likelihood that the removal of the applicant to Iraq would become practicable shortly thereafter. For these reasons, I conclude that there is a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future.

The lack of any protection assessment in respect of Iraq is not relevant 188 One of the bases on which the applicant submitted that there is no real prospect of removal of the applicant to Iraq was that Australia has not determined whether it owes the applicant protection obligations in respect of Iraq. This submission was made in written submissions that were filed, in accordance with the timetable set down by order of the Court, before the respondents filed their evidence in response. That evidence included the Pre-Removal Clearance Minute dated 15 May 2024 to which I referred earlier, in which the authors stated that they were satisfied that the applicant's removal to either Iraq or Iran did not raise concerns relating to Australia's non-refoulement obligations. Otherwise, it was not suggested that there is any subsisting protection finding in favour of the applicant. Consequently, s 197C of the Migration Act is not engaged. In these circumstances, s 198(1) creates a legally enforceable duty on officers of the Department to remove the applicant as soon as reasonably practicable. As a matter of law, the practicability of removing the applicant to Iraq is not affected by the fact that there has been no formal finding relating to whether the applicant is owed protection obligations by Iraq. The Pre-Removal Clearance that was conducted on 15 May 2024 has satisfied the relevant officers that no protection obligations are owed to the applicant.

Section 198AD applies to the applicant 189 Section 198AD was only raised as an issue by counsel for the applicant on the first day of the hearing, after evidence had closed. There is little evidence before the Court concerning factual issues that interact with the applicant's submissions on this topic. The main evidence that does engage with this topic was new evidence led by both sides concerning the lifting of the bar under s 46A of the Migration Act, for reasons that will become apparent. This occurred on the second day of the hearing after I gave leave to the parties to reopen their evidentiary cases. There was otherwise no application to adjourn the hearing, which proceeded until late on the second day at which time I reserved my decision, with counsel for the applicant urging expedition. 190 The applicant's counsel submitted in their written submissions dated 2 May 2024 that s 198(1) was engaged on 5 July 2023, which is not consistent with the applicant's position at the hearing that by force of ss 198(11) and 198AD(1), s 198(1) was never engaged. Counsel for the applicant explained the late stage at which s 198AD was raised on the basis that critical new evidence as to its application only came to light shortly before the hearing. That evidence was said to be a record of interview with the applicant, in which it was stated that there was no evidence as at 27 September 2019 that the Minister had lifted the s 46A bar. I note, however, that on the applicant's submission, s 46A is not relevant to the question whether s 198AD applies to him. The applicant's submission was that s 198AD applies because he is an unauthorised maritime arrival - a fact that was deposed to in the opening paragraph of the applicant's solicitor's second affidavit which was dated 2 May 2024. 191 The upshot of the applicant's change of position is that the Court has not had the benefit of considered written submissions on this issue in accordance with the structured timetable for the exchange of submissions that was set down by order of the Court. However, as I have mentioned, there was no application for an adjournment of the hearing.

Contextualising the significance of s 198AD 192 To understand the significance of s 198AD to this application, the starting point is to recall that the ultimate question, in consequence of NZYQ, is whether there is a real prospect of the removal of the applicant from Australia becoming reasonably practicable in the reasonably foreseeable future. One reason why there may be no real prospect of such removal becoming practicable is that the Migration Act itself imposes a statutory preclusion on the removal of the applicant. In ASF17 at [35]-[38], the joint judgment made this point in relation to s 197C(3), which can operate to prevent the removal of a person to a country where there is an extant protection finding in respect of that country. 193 A similar result can also flow from s 198AD. To see why, it is necessary to start with s 196(1), which provides - (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until: (a) he or she is removed from Australia under section 198 or 199; or (aa) an officer begins to deal with the non-citizen under subsection 198AD(3); or (b) he or she is deported under section 200; or (c) he or she is granted a visa. 194 In this way, s 196(1) specifies the duration of detention under s 189 by establishing four conditions that cause the obligation to detain under s 189 to end. The position under s 196(1) is that detention must continue until one of the specified conditions is met, subject to s 3A in light of the constitutional limitation recognised in NZYQ. These conditions include removal under s 198, as well as the fact of an officer beginning to deal with the non-citizen under s 198AD(3). 195 The present case was argued on the basis that the only paragraphs potentially relevant to the detention of the applicant were ss 196(1)(a)-(aa). These paragraphs deal with situations that are mutually exclusive. To see why, it is necessary to notice s 198(11) - (11) This section does not apply to an unauthorised maritime arrival to whom section 198AD applies. 196 Because s 198 does not apply where s 198AD applies, an unlawful non-citizen in detention will only be capable of meeting one of s 196(1)(a) or (aa) at any given time. 197 The basis upon which the respondents justified the lawfulness of the applicant's detention was that it was authorised by ss 189(1) and 196(1) of the Migration Act. As I have explained, whether the detention is in fact authorised by those provisions turns on whether there is a real prospect of removal of the applicant becoming practicable in the reasonably foreseeable future. Before s 198AD was raised at the hearing, the only countries in respect of which the respondents submitted the requisite real prospect existed were Iran and Iraq. 198 If s 198 applies to the applicant, there is no statutory preclusion on removal of the applicant to Iran or Iraq. If s 198AD applies to the applicant, however, s 198AD(2) imposes an obligation to take the applicant to a regional processing country. That section does not authorise the taking of the applicant anywhere else. By force of s 198(11), if s 198AD applies to the applicant then s 198 does not. And that means that the condition in s 196(1)(a) cannot be met - that is, the mandated duration of detention cannot reach its conclusion by the removal of the applicant under s 198. The effect is that if s 198AD applies, the detention of the applicant in this case can only end when s 196(1)(aa) is satisfied, and the applicant is in the process of being taken to a regional processing country. 199 For that reason, if s 198AD applies to the applicant, the High Court's holding in NZYQ requires that there be a real prospect of his removal to a regional processing country becoming practicable in the reasonably foreseeable future. Since neither Iran nor Iraq appears to be a regional processing country, it would then be irrelevant what the prospects of his removal to either of those countries would be: there would be a statutory preclusion on the removal of the applicant to either country. Thus, the lawfulness of the applicant's detention would turn, in factual terms, on the prospects of removal of the applicant to a regional processing country, with Nauru and Papua New Guinea the two potential countries mentioned at the hearing.

The points of dispute between the parties 200 I have already set out the parties' submissions on this topic. In brief, the applicant submitted that ss 196(1) and 198AD govern the duration of his detention, and that s 46A is irrelevant. The respondents submitted that s 46A is relevant, in that s 198AD(1) must be read in its context so as not to apply to an unauthorised maritime arrival for whom the bar has been lifted under s 46A. On this basis, the respondents submitted that s 198(11) does not prevent s 198 from applying to the applicant, and so the duration of his detention is governed by ss 196(1) and 198. 201 Several points of dispute arose from these two positions. 202 First, an issue arose as to whether the bar was in fact lifted by the Minister under s 46A(2), as is necessary on the respondents' case for s 198AD not to apply to the applicant. 203 Secondly, there was the question of the proper construction of s 198AD, and in particular whether s 198AD should be read as applying to an unauthorised maritime arrival in respect of whom the s 46A bar has been lifted. 204 Thirdly, and relatedly, an issue arose as to whether the revocation of a s 46A(2) determination affects the analysis in any way. This issue arose because it was common ground that any determination made by the Minister under s 46A(2) was revoked by the Minister with effect from 1 October 2017. 205 Fourthly, and this is a significant issue, a question arose as to whether I was bound to follow a decision of Rangiah J in AZC20 v Minister for Home Affairs [2021] FCA 1234 (AZC20 FCA) in circumstances that I will address in detail. These last three issues are, as will appear, interrelated.

The legislation in more detail 206 The Migration Act has been amended frequently and extensively. References to authorities must be understood as being subject to the fact that often provisions that they consider have been subsequently amended or replaced. The relevance of the authorities, however, is the historic context for the provisions that are said to be applicable to the applicant in this proceeding. 207 I will identify below further provisions that are relevant to considering the applicant's submission that s 198AD of the Act requires that he be taken to a regional processing country, together with some legislative background. Much of this background was referred to by Rangiah J in AZC20 FCA, and by the Full Court on appeal in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52; 290 FCR 149 (AZC20 FCAFC). 208 In 2001, the Act was amended by a series of Acts that included the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth). That Act excised certain Australian territory from the migration zone, and introduced the defined term "offshore entry person", being a person who entered Australia at an excised offshore place and who became an unlawful non-citizen because of that entry. The amending Act also inserted s 46A under which an "offshore entry person" who was an unlawful non-citizen and within Australia was not capable of making a valid application for a visa unless the Minister determined otherwise under s 46A(2) in the exercise of a non-compellable personal power, having reached the view that it was in the public interest to do so. The Act was also amended in 2001 by the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth). Relevant for present purposes, this Act added s 198A, which conferred a discretionary power on an officer to take an "offshore entry person" from Australia to a country in respect of which the Minister had made a declaration under s 198A(3). A discretionary power of this type is subject to an implied qualification that it had to be exercised reasonably. It may well have been the case that it was not reasonable to remove an offshore entry person under s 198A in respect of whom the bar had been lifted and who had made a valid application for a protection visa. 209 In Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 (Offshore Processing Case), the High Court stated at [33] that one effect of the above provisions was that s 46A did not apply to a person taken to a declared country under s 198A, but that such a person could apply for only certain classes of visa. Relevantly, the Court stated at [34] that the insertion of ss 46A and 198A reflected a legislative intention to adhere to that understanding of Australia's obligations under the Refugees Convention and the Refugees Protocol that informed other provisions made by the Act. Another consequence was identified by the Court at [35] and [71], namely that the obligation under s 198(2)(a) of the Act to remove an unlawful non-citizen "as soon as reasonably practicable" should be read in light of other provisions of the Act with the result that it accommodated the making of inquiries so as to inform the possible exercise of personal power by the Minister to permit the making of a valid application for a visa under s 46A, or to grant a visa under s 195A. 210 In Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 (Malaysian Declaration Case), the High Court by majority held that a declaration by the Minister of Malaysia as a specified country was beyond power, because the criteria that were set out in s 198A(3) of the Act were jurisdictional matters the objective existence of which conditioned the exercise of the Minister's power to declare a specified country. Those jurisdictional matters included the existence of legal obligations owed by the specified country in relation to protection of refugees and against non-refoulement, and to provide to persons who have been given refugee status rights of the kind mentioned in the Refugees Convention. It was held that the arrangement with Malaysia did not oblige Malaysia to provide any of those rights, and that otherwise on the basis of the agreed facts three of the criteria in s 198A(3) could not be met. 211 In 2012, and following the decision in the Malaysian Declaration Case, the Act was amended by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth), which commenced on 18 August 2012 and before the applicant's arrival in Australian territory. The 2012 amending Act repealed s 198A, and inserted in its place subdiv B of Div 8 of Pt 2 of the Act that was headed "Regional processing" in terms that substantially remain. Within that subdivision were ss 198AB and 198AD which provided for the designation of a regional processing country and, subject to exceptions, for the mandatory removal of "an offshore entry person" to a regional processing country "as soon as reasonably practicable". Of significance, having regard to the Malaysian Declaration Case, is that by s 198AB(2) the only condition on the exercise of the Minister's power to designate a country as a regional processing country is that the Minister thinks that it is in the national interest, which is the subject of some elaboration in ss 198AB(3) and (4). Subdivision B contains no reference to what is to happen to an unauthorised maritime arrival (to use the current term) upon being taken to a regional processing country, and gives no express content to the processing of refugee claims that is contemplated. There is a statement of legislative purpose in s 198AA of the Act, which provides - 198AA Reason for Subdivision This Subdivision is enacted because the Parliament considers that: (a) people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and (b) unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and (c) it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and (d) the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country. 212 The 2012 amending Act also added s 198(11), which in its original form provided that s 198 did not apply to an offshore entry person to whom s 198AD applied. 213 In 2013, the Act was relevantly amended by the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth). The defined term "offshore entry person" in ss 46A, 198(11), 198AA, 198AD, and other places in the Act, was substituted with "unauthorised maritime arrival", which was the subject of a new definition that was inserted as s 5AA of the Act. 214 The constitutional validity of subdiv B of Div 8 of Pt 2 of the Act was challenged in Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28. The Court upheld the validity of the legislation. In doing so, it observed at [32] that neither ss 198AB and 198AD, nor subdiv B as a whole, made any provision for the determination of the refugee status of unauthorised maritime arrivals in regional processing countries, and that at most the references to the removal of unauthorised maritime arrivals to a regional processing country may imply that their refugee status is to be determined in that country. That said, in Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [100] Bell J, who was in the majority but who wrote separately, stated that the object of subdiv B to deter irregular migration to Australia was pursued by the removal of unauthorised maritime arrivals to a regional processing country "for the determination of their protection claims". It might be said that Bell J's statement is supported by the text of s 198AB(3)(a)(ii), which requires the Minister in considering the national interest for the purpose of designating a country as a regional processing country to have regard to whether or not the country "will make an assessment, or permit an assessment to be made, of whether or not a person taken to the country under that section is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol". Additionally, s 198AHA makes reference to action and payments by the Commonwealth in relation to "the regional processing functions" of a country, which is a defined term under s 198AHA(5) that takes its colour from s 198AB(3)(a)(ii). Bell J's statement is also supported by the extrinsic material surrounding the 2012 amendments, where the Revised Explanatory Memorandum at p 2 referred to the Bill amending the Act to - • replace the existing framework in the Migration Act for taking offshore entry persons to another country for assessment of their claims to be refugees as defined by the 1951 Convention Relating to the Status of Refugees ('Refugees Convention') as amended by the 1967 Protocol Relating to the Status of Refugees ('Refugees Protocol'); and … 215 In 2014, the Act was amended by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). Among the many amendments effected by that Act was the introduction of a "fast track assessment process" by Pt 1 of Sch 4. The main features of the legislation relating to the fast track assessment process were described by Gageler, Keane and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [6]-[38]. Central to the operation of those provisions is the defined term "fast track applicant" that was inserted in s 5(1) of the Act, being - (a) a person: (i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and (ii) to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and (iii) who has made a valid application for a protection visa in accordance with the determination; or (b) a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b). 216 It should be noted that there are three conditions in this definition that are relevant to the applicant in this proceeding: (1) that the person is an unauthorised maritime arrival who entered Australia on or after 13 August 2012 but before 1 January 2014; (2) that the person has not been taken to a regional processing country; and (3) the Minister has given notice to the person under s 46A(2). The condition that the person has not been taken to an offshore processing country provides some textual support in the legislation for the statement at p 9 of the Explanatory Memorandum to the Bill that "onshore protection processing" included the fast track assessment process. 217 With that background, I will now refer to the provisions that are in issue in relation to the applicant, and I will include with those references some findings in relation to some of the contested issues of fact. I will refer to the relevant provisions in their current form on the basis that small differences in earlier versions are not material. 218 The applicant arrived in Australia on 22 September 2012 and is an "unauthorised maritime arrival", as that term is defined by s 5AA of the Act. These facts were deposed to by the applicant's solicitor in her affidavit of 2 May 2024, and are the subject of representations by the applicant in his application for a SHEV dated 22 March 2016. Having regard to the totality of the evidence, there is no reason to doubt the applicant's status as an "unauthorised maritime arrival", and it is an essential premise of much of what has occurred. 219 As an "unlawful non-citizen", upon arrival in Australian territory the applicant was liable to be detained under s 189 of the Act. In addition, as an "unauthorised maritime arrival", and before that an "offshore entry person", the applicant was liable to be removed to a regional processing country pursuant to s 198AD of the Act to which I have already referred and which provides, inter alia - 198AD Taking unauthorised maritime arrivals to a regional processing country (1) Subject to sections 198AE, 198AF and 198AG, this section applies to an unauthorised maritime arrival who is detained under section 189. Note: For when this section applies to a transitory person, see section 198AH. (2) An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country. … 220 The circumstances in which the obligation under s 198AD(2) does not apply should be noted. By the terms of s 198AD(1), the section applies to an unauthorised maritime arrival who is detained. It follows that the section would not apply while an unauthorised maritime arrival holds a bridging visa, which the applicant did for a period of time, and in particular at the time the Minister decided to lift the bar pursuant to s 46A(2). Further, the application of the section is subject to ss 198AE, 198AF, and 198AG. Turning first to s 198AE, at all relevant times the Minister has had the power under s 198AE of the Act to determine that s 198AD does not apply to the applicant - 198AE Ministerial determination that section 198AD does not apply (1) If the Minister thinks that it is in the public interest to do so, the Minister may, in writing, determine that section 198AD does not apply to an unauthorised maritime arrival. Note: For specification by class, see the Acts Interpretation Act 1901. (1A) The Minister may, in writing, vary or revoke a determination made under subsection (1) if the Minister thinks that it is in the public interest to do so. (2) The power under subsection (1) or (1A) may only be exercised by the Minister personally. (3) The rules of natural justice do not apply to an exercise of the power under subsection (1) or (1A). … 221 There is no evidence that the Minister has exercised the power under s 198AE(1) in relation to the applicant. 222 Section 198AF provides that s 198AD does not apply to an unauthorised maritime arrival if there is no regional processing country. While there is no evidence before the Court that there is any extant instrument made under s 198AB(1) designating any country as a regional processing country or the terms of any arrangements with any such country, I was informed by counsel that it is not in dispute that there is a regional processing country (T26:30-35). I take this to mean it was common ground that the exception in s 198AF does not apply. 223 Section 198AG provides that s 198AD does not apply to an unauthorised maritime arrival if the regional processing country, or each regional processing country (if there is more than one such country), has advised an officer, in writing, that the country will not accept the unauthorised maritime arrival. There is no evidence before the Court of any proposal to take the applicant to a regional processing country, and therefore no evidence that any country has refused to accept the applicant. 224 Section 198AH makes specific provision for the qualified application of s 198AD to transitory persons. It is unnecessary to go into the detail of the section other than to note it is another specific provision that excludes or modifies the application of s 198AD, and to note that its operation was considered in Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; 261 CLR 582. 225 Upon the applicant being taken into detention after his arrival in September 2012, the Minister had a non-compellable power, acting personally, to grant the applicant a visa pursuant to s 195A of the Act. On 5 December 2012, the Minister granted the applicant a Bridging Visa E (Subclass 050), and the applicant was released from detention. Upon the applicant being released from detention, he was no longer liable to be taken to a regional processing country because s 198AD(1) provided that the section applies to an unauthorised maritime arrival who is detained and, by implication, not to an unauthorised maritime arrival who is at liberty as the holder of a visa. 226 I referred to s 46A of the Act earlier. As an unauthorised maritime arrival, the applicant was precluded from applying for a visa by s 46A, unless the Minister acting personally determined to lift the bar pursuant to s 46A(2) - 46A Visa applications by unauthorised maritime arrivals (1) An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who: (a) is in Australia; and (b) either: (i) is an unlawful non-citizen; or (ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph. Note: Temporary protection visas are provided for by subsection 35A(3). (1A) [Not reproduced.] (2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination. (2A) A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period. (2B) The period specified in a determination may be different for different classes of unauthorised maritime arrivals. (2C) The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so. (3) The power under subsection (2) or (2C) may only be exercised by the Minister personally. … 227 Counsel for the applicant disputed that there was cogent evidence that the bar was lifted in the applicant's case. However, I am comfortably satisfied by clear and cogent evidence that the bar was lifted on 13 August 2015, following which the applicant was notified by a letter from an officer of the Department dated 25 January 2016 that the Minister had exercised the power under s 46A(2) to lift the bar, and by which the applicant was invited to lodge an application for a protection visa. 228 The Minister's determination itself was not in evidence. Senior counsel for the respondents informed the Court that, in the day since the applicant had raised this issue, any such determination had not been located. Nevertheless, it is clear that the Minister made the requisite determination. In the evidence adduced on behalf of the applicant was a document titled "Consolidated Client View', which is a document of the Department of Home Affairs that sets out various items of information about the applicant. That document relevantly states in a column headed "Notes" - The s46A(2) bar lift determination made on MS15-020485 was revoked by the Minister on 1/10/17. Delegates should consider whether a separate s46A(2) bar lift for BVE050 remains in place before deciding to grant a BVE. 229 Counsel for the applicant submitted that the number "MS15-020485" was important as it enabled the revocation decision to be tied to the applicant. 230 The revocation determination itself took the form of an instrument signed by the Minister, which relevantly stated that the Minister revoked - … with effect from the start of 1 October 2017, the determinations made under section 46A(2) identified in Schedule 1 to this instrument by reference to the Ministerial submissions through which they were referred to me for signature. 231 Schedule 1 then set out a table comprising two columns: one headed "Ministerial Submission Number", and another headed "Date of Determination(s)". In one row of that table, the number "MS15-020485" appeared, with a corresponding date of "13 August 2015". 232 The revocation instrument therefore supports the following findings. First, that potential determinations under s 46A(2) had been put before the Minister for his signature in the form of various ministerial submissions. Secondly, the entry in the table upon which the applicant relied to show that the s 46A(2) determination in his favour had been revoked identified "MS15-020485" as the ministerial submission that contained the draft s 46A(2) determination that was put before the Minister for his signature. Thirdly, the fact that the Minister referred to "determinations made" supports a finding that the Minister signed each of the ministerial submissions identified in the table. The result is that the revocation instrument is sufficiently clear evidence that the Minister personally signed a determination to lift the s 46A bar in favour of the applicant on 13 August 2015. This evidence is supported by the letter from the Department to the applicant of 25 January 2016, which contained a representation that the Minister had decided to lift the bar. Finally, there was an evidentiary admission of the applicant by his solicitor in her affidavit of 2 May 2024 that the "statutory bar on the [a]pplicant, as an unauthorised maritime arrival, making a valid application for a visa in Australia was lifted … on 13 August 2015". 233 Counsel for the applicant submitted that the power to make a determination under s 46A(2) can only be exercised personally, and that while the Minister was not required to deliver the notice personally, s 46A(2) required that notice be given on behalf of the Minister in some express way. Counsel for the applicant gave an example of sufficient notice as being a letter from a departmental officer that stated, "I write on behalf of the Minister". While I accept that the power under s 46A(2) to make a determination may only be exercised personally as s 46A(3) provides, I am not persuaded by the balance of the applicant's submissions. Once it is accepted that notice of the Minister's personal determination can be given by a departmental officer acting as the Minister's agent, I am unable to see any reason in the provision itself, or in more pragmatic considerations, why in order to give effective notice departmental officers should have to identify expressly that they are acting on behalf of the Minister in the way submitted by counsel for the applicant. 234 On or about 19 September 2017, the Minister determined to revoke a number of determinations to lift the bar with effect from 1 October 2017. The Minister signed a written statement to Parliament required by s 46A(4) which stated the reasons for the revocation. I do not set the reasons out, and nothing turns on them. Further, in the time available no submissions were addressed to whether the Minister's statement to Parliament was admissible having regard to s 16 of the Parliamentary Privileges Act 1987 (Cth). To put the revocation in a temporal context, by 1 October 2017 the applicant had lodged his application for a SHEV, but the application had yet to be determined by the delegate. Following the revocation, the applicant's application was refused on 19 October 2017, following which there occurred the reviews by the Immigration Assessment Authority and judicial review, to which I referred earlier, which terminated with the dismissal on 24 May 2023 of the applicant's application to the Circuit Court seeking judicial review of the Authority's third decision. 235 Counsel for the applicant submitted that the effect of the Minister's revocation of the determination to lift the bar rendered invalid the applicant's visa application, which by that time he had already made. I do not accept this submission. At the time the applicant made his application for a SHEV, s 46A did not apply because the Minister had lifted the bar. The making of a valid application in these circumstances gave rise to a series of rights and obligations, including that the Minister was required under s 65 of the Act to make a binary decision whether to grant or refuse the application. Because the applicant was a fast track applicant, he was also entitled to the benefit of the review procedures under Pt 7AA of the Act. It would require clear and direct language in s 46A(2C) for these rights to be swept away by a decision of the Minister to revoke the lifting of the bar with retrospective effect so as to invalidate a valid visa application. No such language is present. The applicant's application for a SHEV was valid when made, and it remained valid. 236 The next provisions that are relevant are s 198(1), which requires removal of an unlawful non-citizen on request, and s 198(6), under which an officer is required to remove an unlawful non-citizen who is a detainee and in respect of whom a valid application for a visa has been finally determined by being refused - 198 Removal from Australia of unlawful non-citizens Removal on request (1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed. Removal of unlawful non-citizens in other circumstances … (6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if: (a) the non-citizen is a detainee; and (b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and (c) one of the following applies: (i) the grant of the visa has been refused and the application has been finally determined; (ii) the visa cannot be granted; and (d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone. 237 Counsel for the applicant submitted that s 198 did not apply, because its operation was excluded by s 198(11) which I set out earlier at [195]. Section 198(11) was referred to in Plaintiff M96A/2016 at [14], with the Court confirming at [16] that s 198 will not apply to an "unauthorised maritime arrival" to whom s 198AD applies. This directs attention to whether the applicant is currently an unauthorised maritime arrival who is detained under s 189, within the meaning of s 198AD(1) as properly construed. On that question, there are conflicting views. 238 In AZC20 FCA, which I will consider in more detail below, Rangiah J held that s 198AD(1) applied to an applicant in similar circumstances to the present case. AZC20 FCA was reversed by the Full Court on appeal, and the orders of Rangiah J were set aside: AZC20 FCAFC (Jagot, Mortimer and Abraham JJ). On appeal to the High Court, the two appeals comprised in the matter were allowed, and the Full Court's orders were set aside, with the High Court by majority holding, for reasons that I will identify, that there was no justiciable matter before the Full Court: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 411 ALR 615 (AZC20 HCA).

AZC20 at first instance 239 In AZC20 FCA, the applicant sought a writ of mandamus to compel his removal to a regional processing country, namely Nauru, submitting that the duty to take to a regional processing country in s 198AD(2) of the Act applied to him. As with the applicant in the present proceeding, AZC20 was an unauthorised maritime arrival. The Minister had lifted the bar pursuant to s 46A(2) of the Act to allow AZC20 to apply for a protection visa. The effect of lifting the bar was that AZC20 became a "fast track applicant", as defined by s 5(1) of the Act. Following a lengthy process involving a delegate's decision, three reviews by the Immigration Assessment Authority, and judicial review, AZC20 was unsuccessful in obtaining a visa. The central issue in the application for mandamus was whether s 198AD applied to AZC20. 240 Rangiah J relevantly held that s 198AD(1) applied to AZC20, rejecting a submission made on behalf of the Commonwealth parties that the statutory scheme impliedly excluded the application of s 198AD to an unauthorised maritime arrival who is a "fast track applicant" for a protection visa. His Honour held that it was reasonably practicable to take AZC20 to Nauru, and made an order in the nature of mandamus requiring the Secretary of the Department of Home Affairs to perform the duty under s 198AD(2). 241 Rangiah J held at [58] that the plain language of s 198AD(1) indicated that s 198AD applied to AZC20. In addressing the submissions of the Commonwealth parties, his Honour looked to the place of s 198AD(2) within the structure and history of amendments to the Act. 242 At [86] Rangiah J described as compelling the submission advanced on behalf of AZC20 that an unauthorised maritime arrival becomes a fast track applicant only by the Minister making a determination under s 198AE, stating that it accorded with the plain language of ss 198AD(1) and (2) which require an unauthorised maritime arrival to be taken to a regional processing country, subject to the specified exceptions. At [88] his Honour referred to the symmetry between the conditions necessary to engage the exercise of the Minister's personal powers under s 46A(2) and s 198AE, describing them as cognate provisions. His Honour held at [95] that the legislative scheme intended that the Minister would ordinarily exercise the power under s 46A(2) to allow an unauthorised maritime arrival to apply for a visa in Australia together with the power under s 198AE to allow the person to remain in Australia, as a consequence of which the person would become a fast track applicant. His Honour stated at [95] that it seemed improbable that the Minister could lift the bar under s 46A(2), but then refuse to exercise the power under s 198AE because the consequence would be that the person would be taken from Australia and the fast track process would be frustrated, and that the intention was that where an unauthorised maritime arrival was permitted to apply for a visa in Australia, the person would be permitted to remain in Australia while the application was processed. 243 Rangiah J stated at [90]-[91] that there were several unattractive features of the construction advanced on behalf of the respondents, which involved an implied exception to s 198AD. In summary, those unattractive features were: (1) the construction was inconsistent with the plain words of s 198AD(1); (2) the construction was inconsistent with the existence of the express exceptions to the application of s 198AD; and (3) the construction was inconsistent with Note 2 to s 198AD(2A). His Honour stated that if the application of s 198AD to a particular category of unauthorised maritime arrivals was intended to be excluded automatically, it seemed probable that an express exception to that effect would have been included instead of leaving it to implication. His Honour rejected the suggestion that there would be anomalies unless there was an implied exception to s 198AD, holding at [95] that the scheme intends that the Minister would ordinarily exercise the power under s 46A(2) to lift the bar together with the power under s 198AE to allow the person to remain in Australia with the result that the obligation in s 198AD would not apply. 244 For these reasons, Rangiah J concluded that the obligation to take an unauthorised maritime arrival to a regional processing country applied to AZC20, and his Honour made orders in the nature of mandamus compelling the Secretary of the Department of Home Affairs to perform that obligation. 245 There were some other observations made by Rangiah J along the way. At [75], his Honour noted that one benefit that accrued to unauthorised maritime arrivals by reason of their removal to a regional processing country was that they would not necessarily be kept in detention in that country. This is, of course, fact-dependent, because there have been other cases where detention in a regional processing country has been part of the factual matrix: see, for example, DWN042 v Republic of Nauru [2017] HCA 56; 350 ALR 582, and Plaintiff M68/2015 to which I referred earlier. In addition, at [83] Rangiah J referred to a submission by the respondents that it was not "reasonably practicable" to take an unauthorised maritime arrival to a regional processing country when the bar has been lifted and the person's visa application is the subject of the fast track process and other legal proceedings. His Honour held that this was an issue that was not necessary to resolve.

AZC20 in the Full Court 246 The Minister and the Secretary appealed to the Full Court. However, two important events occurred before the appeal was heard. Shortly after the orders of Rangiah J were made, the Minister made a determination under s 198AE(1) of the Act that s 198AD did not apply to AZC20. In addition, Nauru communicated to the Commonwealth that it would not accept AZC20, which engaged the exception in s 198AG. The Full Court held that it should nonetheless decide whether the orders of Rangiah J were in error because there were other cases where the issue was likely to arise, and a decision of the Full Court would remove any uncertainty, thereby making it in the interests of the administration of justice for the Full Court to decide the question. In due course, the High Court by majority held that the two events referred to, along with the fact that there was no live dispute as to costs in the Full Court, had the result that there was no justiciable controversy before the Full Court in relation to the application of s 198AD to AZC20, and that the Full Court had therefore been in error in entertaining the appeal and making orders. What follows is a summary of the Full Court's reasons for allowing the appeal. 247 The Full Court held that Rangiah J erred in his construction of s 198AD, stating that it does not apply to a person who has been the subject of a decision under s 46A to lift the bar. The Court commenced its consideration by referring to the well-known passages concerning the reconciliation of conflicting statutory provisions, harmonious goals, and coherence in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ), and to their application by the Court in Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 at [42]. Applying these principles, the Full Court held that there was a construction that yielded a harmonious operation of ss 46A, 198, 198AD, and Pt 7AA. 248 The Court's path of reasoning made reference to the legislative history which I outlined earlier. Of particular note is that the Court made the point that the fast track process introduced as Pt 7AA by the 2014 amendments contemplated that, for whatever reason, there was a cohort of unauthorised maritime arrivals who had not been taken to a regional processing country and who were amenable to an exercise of power by the Minister to lift the bar under s 46A(2), and that the processing and review of their visa applications would take place onshore in accordance with the provisions of the Act. The Court also made the important point that the introduction of Pt 7AA, while being consistent with an onshore process of consideration and review, did not relevantly change the situation prior to its introduction, where the Minister might lift the bar for an unauthorised maritime arrival who might otherwise be liable to removal to a regional processing country under s 198AD(2) if the other conditions attaching to that obligation were engaged, including that it was reasonably practicable to do so. After referring to the situation both before and after the commencement of Pt 7AA on 18 April 2015, the Court held - 68 In either case, in our opinion, the intention of the legislative scheme is that those individuals who are permitted, by an exercise of Ministerial power under s 46A(2), to apply for a visa, are thereafter not intended to be subjected to being taken to a regional processing centre under s 198AD. The reason is the same in each situation: such individuals have been given access to an onshore, domestic process to have their claims for protection heard and determined. The purpose of taking them to a regional processing centre no longer exists. Their claims will be processed in Australia, under Australian domestic legislation; the Minister has made a conscious and deliberate decision to that effect. Thus, once the s 46A(2) power was exercised, it was no longer "reasonably practicable" for a person such as the respondent to be removed to a regional processing country. 69 Once any visa application has been finally determined, as that phrase is defined in ss 5(9) and 5(9A) of the Act, a person in the respondent's position would be exposed to removal under s 198(6) of the Act, read now with s 197C of the Act. That duty would again remain subject to removal being "reasonably practicable": for example, depending on whether there is an outstanding judicial review application. 249 It may be noted that the textual "hook" to which the Full Court referred at [68] was that it would no longer be "reasonably practicable" to remove a person who had been given access to onshore domestic processing to have the person's claims to refugee status heard and determined offshore, alluding to the obligation in s 198AD(2) to take an unauthorised maritime arrival to a regional processing country "as soon as reasonably practicable".

AZC20 in the High Court 250 As I have mentioned, the High Court set aside the Full Court's orders on the grounds that the orders of Rangiah J were of no continuing effect with the result that there was no justiciable controversy and therefore no jurisdiction to make the orders on appeal: AZC20 HCA at [36]-[37], [49], [54], [59] (Kiefel CJ, Gordon and Steward JJ) and [61] (Edelman J).

Resolution 251 Upon counsel for the applicant submitting that s 198AD applies to the applicant, with the consequence that s 198 was excluded by s 198(11), counsel for the respondents joined issue on the submissions, and the hearing proceeded. No application was made on behalf of any of the parties to reserve the question for consideration by a Full Court under s 25(6) of the Federal Court of Australia Act, a course similar to one identified by Kiefel CJ, Gordon and Steward JJ in AZC20 HCA at [49]. The fact that the point had not been foreshadowed by the applicant in the written material, and the overarching obligation under s 37M of the Act, may have contributed to this course in circumstances where counsel for the applicant pressed for a speedy decision. As a result, I am in the position where I must resolve the question myself.

The status of the Full Court's decision in AZC20 252 Upon the High Court setting aside the orders of the Full Court in AZC20 FCAFC, the Court ordered in their place that the applications for leave to appeal to the Full Court be refused, and that the appeals to the Full Court otherwise be dismissed. This had the result that the orders of the Full Court no longer had any legal effect, and the orders of Rangiah J constituted the applicable exercise of judicial power in the matter. 253 Where a judgment of a court is reversed on appeal, any statements of principle in the reasons for judgment cease to be binding. That is because the reasons of the court whose orders are reversed do not form part of the ratio decidendi for the determination of the matter. In Re Sutherland; French Caledonia Travel Service Pty Ltd (in liq) [2003] NSWSC 1008; 59 NSWLR 361 at [59] Campbell J stated that "a first instance decision altered on appeal can be of no higher precedent status than a dissenting judgment on appeal", citing Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 410 (Aickin J). There is some irony in the fact that Aickin J dissented in that case, which was noted by Basten JA in Sparks v Hobson [2018] NSWCA 29; 361 ALR 115 at [37]. In Sparks v Hobson at [35]-[40], Basten JA treated the principle as extending to decisions of intermediate appellate courts that were reversed by the High Court, as did White JA in Dean v Pope [2022] NSWCA 260; 110 NSWLR 398 at [263], and the Victorian Court of Appeal in Director of Public Prosecutions (Vic) v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300; 41 VR 81 at [121] (Maxwell P, Weinberg JA and Ferguson AJA). More directly, in this Court the Full Court applied the principle in BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 201; 301 FCR 229 at [103]-[105] to hold that the reasons of the majority of the Full Court in BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91; 285 FCR 43, whose orders were set aside by the High Court, were not binding. However, the Full Court in BIF23 considered the reasons of the majority in BDS20 to be persuasive to the extent of being compelling, and followed them. See also Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432 at [507] (White, Gleeson and Wheelahan JJ). 254 The reasons of the Full Court in AZC20 FCAFC are not binding upon me. That is because the reasons do not support the exercise of any judicial power, and in that sense, are akin to reasons in a dissenting judgment, at least where they are not inconsistent with anything said by the majority. However, as with BIF23, the reasons of the Full Court are capable of being persuasive. But unlike the position of the Full Court in BIF23, there is a further principle discussed below, which is that I should follow the decision of Rangiah J unless I form the view that it is plainly wrong. The result is that I regard myself as being able to take account of the reasons of the Full Court as persuasive authority in considering whether I should depart from the decision of Rangiah J.

The weight to be given to the first instance decision in AZC20 255 I will now briefly address the authorities concerning the circumstances in which a single judge of this Court might depart from the reasons of another single judge. 256 In La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 (La Macchia) at 204, in a passage which has been cited favourably on a number of occasions, Burchett J cited Halsbury's Laws of England, 4th ed, vol 26, at [580] for the proposition that "a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong". Burchett J stated that the word "usually" indicated that the approach required is a flexible one, and the authorities illustrated that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle. 257 In Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75] French J referred to the reasons of Burchett J in La Macchia, and his Honour's reference to judicial comity, and added - 76 The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is 'clearly wrong' is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction. Indeed, where a serious doubt arises on the part of one judge, about the correctness of the law as stated by another, in a matter of importance, it may be desirable for a case to be stated to the Full Court for early resolution of the question in contention. 258 As to Full Court authority on this question, in BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; 162 FCR 234, Greenwood J, in reasons with which Sundberg J generally agreed, stated - 83 The circumstances in which a judge in the exercise of the Court's original jurisdiction might find a decision of a single judge of the Court to be "plainly wrong" should be approached with real and deliberative caution and would generally involve that class of case where for one reason or another there is transparent error such as the consideration of an incorrect statutory instrument in the resolution of the controversy; consideration of a provision of a statute in a form not enacted at the relevant date of the events or a failure to consider a provision of an Act relevant to the disposition of the cause, thus causing the analysis to fall into error; a failure to apply having regard to the issues raised by the controversy, a binding decision of a Full Court of this Court or the High Court; a failure to apply a decision of a Full Court of this Court, an intermediate Court of Appeal of another jurisdiction or an authority of the High Court expressing a clear persuasive emphasis of opinion in favour of a particular conclusion (particularly concerning legislation of the Commonwealth Parliament); or some other circumstance that has caused a dispositive adjudication of the controversy to miscarry. 84 That minds might differ on a question is not a foundation for a conclusion that a decision supported by exposed reasons for judgment after full argument, is plainly wrong. 85 The difficulty however lies in preserving that degree of important flexibility necessary to enable a judge to do justice between the parties to a controversy inherent in a dispositive adjudication of that controversy when a judge is persuaded that an earlier authority is wrong (apart from illustrations of the kind above) balanced with the importance of consistency and certainty in the administration of the law. The question is always a matter of careful judgment. 86 The circumstances which might properly lead to a departure from an earlier authority will necessarily vary according to the content of the case and the issues and therefore no prescriptive rules ought to be formulated. However, the point of equilibrium in that balance might be reached by recognising the required emphasis necessary in concluding that an earlier authority is "plainly wrong" or "clearly wrong". In cases where a party advised and represented by experienced senior counsel properly discharging the duty owed to the Court urges upon the Court the merits of the reasoning of the authority in the resolution of the immediate case, it would be difficult to conclude that the authority is "plainly wrong" notwithstanding that a judge might reach an entirely different view of the proper construction of the provision against the background of the facts found and thus conclude that the early authority is wrongly decided. There is a distinction between concluding a decision is wrongly decided and a conclusion that an earlier authority is "plainly wrong" and thus ought not to be applied and followed. 259 In BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; 283 FCR 97, Allsop CJ, Moshinsky and O'Callaghan JJ stated at [62] that the practice that a judge should usually follow a decision of another judge of the same court unless the judge is of the view that it is plainly wrong had been expressed in different ways on different occasions. The Court found it unnecessary to express a view on the different formulations, and stated that it was undesirable to adopt any rigid formulation. The Court held that it was sufficient to refer to the passage from the reasons of Burchett J in La Macchia at 204 to which I referred earlier. 260 Subsequently, in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181, Allsop CJ, in reasons on this topic with which Kerr and Mortimer JJ at [104] agreed, considered in some depth the principles underpinning the practice that the Full Court will follow one of its own previous decisions unless convinced that it was plainly wrong. In summary, and relevant to Full Courts, Allsop CJ made the following points, citing, inter alia, Gett v Tabet [2009] NSWCA 76; 109 NSWLR 1 at [283] - (a) "plainly wrong" does not just mean "obviously wrong", but bespeaks the quality of the error or the level of conviction of the error that must be perceived; (b) there was a need to balance the risk of perpetuation of error in too rigid a stance in reconsideration of earlier decisions and the importance of the stable operation of the doctrine of precedent and the predictability of the law; and (c) however, in relation to Full Courts, judicial focus should remain on the wider institutional values of consistency and predictability described in the authorities, and on the need for decisions to be re-visited sparingly and with great care in considering whether, in order to advance the equally important value of ensuring the law is correctly pronounced and applied, it may be necessary to depart from a previous decision. 261 In relation to single judges, Allsop CJ stated that the question of consistency in decision-making that should weigh on the minds of judges was a different question - 21 … The question of consistency that should weigh on the attitude of a single judge to an earlier first instance single judge decision is a different question. It is not founded on the respective positions of intermediate courts of appeal in an integrated national judiciary, but upon comity. That said, as the expression of principle by French J in Hicks reveals, the matter can be expressed in very similar terms. Comity in this context has often been expressed in similar language to plainly wrong. In Huddersfield Police Authority v Watson [1947] KB 842 at 848, Lord Goddard referred to the modern practice and modern view of the subject that a judge at first instance following a decision of another judge at first instance from comity, not obligation, unless convinced that the decision was wrong. The modern expression of the matter in this Court is to similar effect: Hicks [2003] FCA 757 at [75]-[76] and La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204. 262 The desire for comity has a particular relevance to the construction of Commonwealth statutes, where consistency of interpretation is a well-recognised objective: see Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485. That is of particular importance in circumstances where the Full Court has had occasion to remind the executive that considered decisions of a court declaring the meaning of a statute are not to be ignored: Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16; 158 FCR 325 at [3]-[7] (Allsop J, Stone J agreeing at [1], Edmonds J agreeing at [48]).

Discussion 263 A useful starting point is an observation concerning an important assumption underlying the Migration Act made by the Court in the Offshore Processing Case at [27] - … read as a whole, the Migration Act contains an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol. … the Migration Act proceeds, in important respects, from the assumption that Australia has protection obligations to individuals. Consistent with that assumption, the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia's international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason. 264 A similar observation was made by Gummow, Hayne, Crennan and Bell JJ in the Malaysian Declaration Case at [98], namely that the legislative intention evident from the Act as a whole was that "its provisions are intended to facilitate Australia's compliance with the obligations undertaken in the Refugees Convention and the Refugees Protocol". 265 The different approaches of the Full Court and of Rangiah J in AZC20 were that Rangiah J's approach was faithful to the literal text of the legislation, rejecting submissions to construe s 198AD as containing an implied exception in the case of an unauthorised maritime arrival for whom the bar had been lifted under s 46A(2) and who was therefore a fast track applicant. On the other hand, the Full Court's approach was patently one involving a construction designed to achieve the legislative purpose, and harmony, which had regard to the scheme of the Act so far as it related to unauthorised maritime arrivals. There is authority to support both approaches. 266 In rejecting the implied exclusion to the application of s 198AD to AZC20, Rangiah J cited at [55] the following passage from HFM043 v Republic of Nauru [2018] HCA 37; 359 ALR 176 at [24] (Kiefel CJ, Gageler and Nettle JJ) - The task of construction of a statute is of the words which the legislature has enacted. Any modified meaning must be consistent with the language in fact used by the legislature. Words may be implied to explain the meaning of its text. The constructional task remains throughout to expound the meaning of the statutory text, not to remedy gaps disclosed in it or repair it. 267 Within the above passage were footnoted references to Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 at [39] (French CJ, Crennan and Bell JJ), and Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 (Cooper Brookes) at 310-11 (Stephen J). Commencing with Cooper Brookes, at 310 Stephen J stated - … if literal meaning is to be departed from, it must be clear beyond question both that literal meaning does not give effect to the intention of the legislature and that some departure from literal meaning will fulfil that intent. Statute law, the direct product of the legislature, is perhaps the least appropriate field of all in which to indulge in judicial law-making. The corner of that field occupied by closely drafted statutes of high complexity should be particularly uninviting to the judicial law-maker. It provides the very antithesis of those occasional legislative measures which lay down only general principles and invite the courts to supply the details. It can never be enough to justify judicial intervention that what has been enacted may seem to a court to lead to an irrational result. … 268 From this conventional starting point, Stephen J looked to the history of amendments to the legislation under consideration, and declined to adopt a literal construction, stating at 310-11 - However a close examination of that sub-section against the background of its legislative history and that of its neighbouring sections has satisfied me that the intent of its framers, which it reflected when it was originally enacted, has been stultified by amendments to other provisions, which for some reason have passed by s. 80c(3). That sub-section now stands as an anachronism; the failure to amend it to accord with those provisions upon which it operates and have themselves long since been amended, ensures that to give it its literal application will, in the words of Fry L.J ., be to construe "the Act in order to defeat its object rather than with a view to carry its object into effect"; Curtis v Stovin. His Lordship, in common with Lord Esher M.R. and Bowen L.J., refused to adopt a literal interpretation which would have led to the result "that the plain intention of the legislation has entirely failed by reason of a slight inexactitude in the language of the section". Just as in Curtis v Stovin it was possible for the Court both to recognize the nature of the draftsman's error and to identify it as error (per Lord Esher M.R.), so here it is possible to trace the process by which s. 80c(3) has become the anachronism which it now is. (Footnotes omitted.) 269 In Taylor, the Court addressed what was argued to be an anomaly in provisions of the Civil Liability Act 2002 (NSW) concerning the assessment of damages in dependants' claims. The majority (French CJ, Crennan and Bell JJ) declined to read the text of the provision in the way argued by the appellant, in effect rejecting a submission by the appellant that the text was not consistent with some legislative purpose that was outside the statute. In coming to that conclusion, the majority stated - 38 The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature". (Footnotes omitted.) 270 The majority then referred to Lord Diplock's three conditions for reading words into an Act identified in Wentworth Securities Ltd v Jones [1980] AC 74 at 105, which were reformulated by Lord Nicholls in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 at 592 in the following terms - A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see per Lord Diplock in Jones v Wrotham Park Settled Estates [1980] A.C. 74, 105-106. 271 French CJ, Crennan and Bell JJ then stated - However, it is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that "the modified construction is reasonably open having regard to the statutory scheme" because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, "[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances". (Footnotes omitted.) 272 In my respectful view, in favour of the construction preferred by Rangiah J are three features: (1) the construction is clearly open on the text; (2) the presence of express exceptions to s 198AD militates against implying further exceptions; and (3) the presence of the Minister's power under s 198AE to determine that s 198AD does not apply to a particular unauthorised maritime arrival is an obvious way in which inconvenient outcomes might be avoided. 273 There are, however, some features of Rangiah J's reasons with which respectfully I do not agree. The first is that there is no need for the power to lift the bar under s 46A(2) to be exercised in conjunction with a determination under s 198AE. The present case affords an illustration. At the time the bar in respect of the applicant was lifted, the applicant held a bridging visa, and for that reason alone he was not liable to be taken to a regional processing country. Further, on the authority of the Offshore Processing Case at [35] and [71], if it were material I would construe the obligation under s 198AD(2) to take an unauthorised maritime arrival to a regional processing country "as soon as reasonably practicable" in light of other relevant provisions of the Act, and as accommodating at least the consideration and any review of a protection visa application once made. The effect of those occurrences would be that s 198AD(2), in its application to a particular unauthorised maritime arrival at a particular time, would not authorise taking the person to a regional processing country. On this analysis, the question in issue narrows to what is the situation after all onshore visa application processes have been exhausted. Does the unauthorised maritime arrival remain subject to s 198AD, or does s 198 apply, despite s 198(11)? 274 This brings me to the reasoning of the Full Court. In Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; 255 CLR 179, the High Court was called upon to reconcile the operation of s 85 of the Act, which at the relevant time empowered the Minister in unqualified terms to limit the number of visas that may be granted in a specified financial year, and the obligation in s 65A, as then in force, to make a binary decision on an application for a protection visa within a specified time. The Court reconciled the conflict by giving primacy to the obligation under s 65A so that it was not subject to any direction given under s 85, which was construed as not extending to protection visas. In reaching their conclusion, Crennan, Bell, Gageler and Keane JJ stated at [25] - … "Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible", in the manner indicated in Project Blue Sky Inc v Australian Broadcasting Authority, "by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions". The numerous amendments that have been made to the Act form part of its legislative history and bear legitimately on its construction. They are to be construed as part of the Act, so as to be read together "as a combined statement of the will of the legislature". The timing of amendments might assist in determining the "hierarchy" of apparently conflicting provisions of the Act as amended, but notions of "implied repeal" have no place. (Footnotes omitted.) 275 To similar effect are the statements of the Court in Plaintiff S4/2014 at [42], which added that "[c]onstruction should favour coherence in the law", before referring at [43] to the Anthony Hordern principle: Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1. 276 I stated earlier that the textual "hook" supporting the Full Court's reasons was the phrase "as soon as reasonably practicable" appearing in s 198AD(2). It is arguable in my view that this phrase is concerned with the timing of removal to a regional processing country, and not the utility of the removal. A further difficulty in my view is that there is a difference between whether s 198AD applies to a person, and whether the obligation under s 198AD(2) is engaged. Whether something is reasonably practicable is fact-dependent. It is also a circumstance that may change from time to time, and the absence of reasonable practicability at a particular point in time does not lead to the result that s 198AD does not apply. To take an example, a transfer to a regional processing country might be reasonably practicable if no intention or procedural decision to consider raising the bar under s 46A(2) exists. And if an unauthorised maritime arrival in whose favour the bar is lifted fails to take up the opportunity to apply for a visa, it is not obvious that the mere lifting of the bar makes transfer to a regional processing country not reasonably practicable. 277 What follows is within the realm of the hypothetical, but consider a case in which a regional processing country accommodated applications for protection visas under local laws, notwithstanding prior refusal of an application under Australian law - providing, in other words, a "second bite at the cherry". Further, consider a case in which the local laws of a regional processing country accommodated an application by a person who had failed to take up the opportunity to apply for a protection visa in Australia while the bar remained lifted. In those circumstances, why should transfer to the regional processing country be regarded as not reasonably practicable? 278 In this case, however, there is no evidence as to a whole range of matters, including the identity of the regional processing country or the utility of transferring the applicant to the regional processing country. Nevertheless, these examples can still shed light on the practical operation of s 198AD(2), and so on the construction that should or must be preferred in order to ensure that s 198AD(2) works in harmony with other provisions of the Act. The point is that, while the Act provides for a bifurcated scheme of onshore and offshore processing, it is not clear that it would in all cases undermine that statutory scheme for s 198AD to apply to an unauthorised maritime arrival in whose favour the bar has been lifted. And, in light of what I have said about when the taking of a person under s 198AD(2) would be "reasonably practicable", it may be that s 198AD(2) itself operates to prevent inconvenient results from arising. This militates against the view that it is necessary to construe s 198AD(1) as subject to an implied exception in order to give a harmonious operation to the Act. 279 More fundamentally in my view, there is a difference between the application of s 198AD to a person, and the existence of the obligation to transfer. As I have sought to explain, the obligation to transfer an unauthorised maritime arrival may change from time to time depending upon what is reasonably practicable. But the application of s 198AD is governed by the text of s 198AD(1). The exclusion of s 198 in s 198(11) is directed to the application of s 198AD, and not to whether at any particular point in time transfer is reasonably practicable. It does not follow from the fact that, at some point in time, transfer is not reasonably practicable that s 198AD(1) does not apply to a person at that time. To the extent that the Full Court is to be understood as holding that it is never reasonably practicable to take a person to a regional processing country once the bar has been lifted under s 46A(2), it is arguable that this conclusion does not grapple with the full range of possible circumstances that could arise for consideration. I am therefore not persuaded by the reasoning of the Full Court that the decision of Rangiah J was plainly wrong. 280 The question then is whether s 198AD(1) is itself the subject of an implied limitation that the section does not apply to an unauthorised maritime arrival in respect of whom the bar has been lifted, or who has made a valid application for a protection visa. The existence of those alternatives immediately raises a problem, namely that the terms of the implied exception are not clear. Applying the principles referred to by the majority in Taylor, I am not persuaded that where the text of s 198(11) and s 198AD(1) is clear, where the terms of the implied exception are not clear, where there are express exceptions to the application of s 198AD, and where one of those exceptions is the capacity of the Minister to determine that s 198AD does not apply, that a further exception should be implied in addition to those expressly stated. On this issue, and having given the Full Court's reasons appropriate weight, I am not persuaded that the conclusion of Rangiah J in AZC20 FCA, namely that there is no implied exception, is plainly wrong. As a consequence, I should follow AZC20 FCA.

There is no real prospect of the removal of the applicant to a regional processing country becoming practicable in the reasonably foreseeable future 281 The respondents have not discharged their onus of showing, to a standard sufficient to support the making of a finding of fact to the level of satisfaction appropriate to a civil proceeding where individual liberty is in issue, that there exists a real prospect of removal of the applicant to a regional processing country becoming practicable in the reasonably foreseeable future. The evidence on that topic is scant to non-existent. The reasons for that may be readily inferred: until last week, both the applicant and the respondents proceeded on an assumption that s 198 is applicable to the applicant. There is no evidence as to why the executive did not consider itself bound by the decision of Rangiah J in AZC20 FCA. That issue need not be explored. 282 The constitutional limitation identified in NZYQ calls for an assessment in the present of the prospects of the removal of a person from Australia becoming practicable in the reasonably foreseeable future. The High Court in NZYQ at [72] recognised that facts may change, such that a person who has been released by force of a writ of habeas corpus may be re-detained if there arises again a real prospect of the removal of the person becoming practicable in the reasonably foreseeable future. The current position is that there is no evidence of the identity of one or more regional processing countries, and no evidence of any endeavours to transfer the applicant to one of those countries, or what prospects any such endeavours might have. On this evidence I do not have an affirmative state of satisfaction that there exists a real prospect of the transfer of the applicant under s 198AD becoming practicable in the reasonably foreseeable future, such that the continuing detention of the applicant is within the constitutionally permitted period of executive detention identified in NZYQ.

Conclusion 283 An order of the Court that the applicant be released from detention forthwith should be made. 284 I will hear the parties on costs and any other orders. I certify that the preceding two hundred and eighty-four (284) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.

III Evidence Act 1995(Cth)ss 136, 140

Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001(Cth)

Migration Amendment (Excision from Migration Zone) Act 2001(Cth)

Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013(Cth)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014(Cth)

Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012(Cth)

Under the Federal Court Rules 2011(Cth)

Migration Act 1958(Cth)ss 3A, 5(1), 5AA, 46A, 46A(2), 46A(2C), 46A(3), 46A(4), 65A, 85, 189(1), 195A, 196(1), 197C, 198, 198(1), 198(6), 198(11), 198A, 198AA, 198AB, 198AD, 198AD(1), 198AD(2), 198AD(2A), 198AD(3), 198AE, 198AF, 198AG, 198AH, 198AHA

Judiciary Act 1903(Cth)ss 39B(1A), 78B

Cases cited: Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 ASF17 v Commonwealth [2024] HCA 19 Australian Communist Party v Commonwealth (1951) 83 CLR 1 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 AZC20 v Minister for Home Affairs [2021] FCA 1234 AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 411 ALR 615 BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91; 285 FCR 43 BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 201; 301 FCR 229 BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; 162 FCR 234 BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; 283 FCR 97 Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98; 288 FCR 657 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 CKL21 v Minister for Home Affairs [2022] FCAFC 70; 293 FCR 634 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 Dean v Pope [2022] NSWCA 260; 110 NSWLR 398 Director of Public Prosecutions (Vic) v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300; 41 VR 81 DWN042 v Republic of Nauru [2017] HCA 56; 350 ALR 582 Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16; 158 FCR 325 Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 Gett v Tabet [2009] NSWCA 76; 109 NSWLR 1 Hahn v Conley (1971) 126 CLR 276 HFM043 v Republic of Nauru [2018] HCA 37; 359 ALR 176 Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 Howe v Zuchowski [2024] VSCA 56 La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52; 290 FCR 149 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 Perazzoli v BankSA, a division of Westpac Banking Corporation Ltd [2017] FCAFC 204 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; 261 CLR 582 Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; 255 CLR 179 Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Purkess v Crittenden (1965) 114 CLR 164 Re Sutherland; French Caledonia Travel Service Pty Ltd (in liq) [2003] NSWSC 1008; 59 NSWLR 361 Sami v Minister for Home Affairs [2022] FCA 1513 Save the Children Australia v Minister for Home Affairs [2023] FCA 1343 Sparks v Hobson [2018] NSWCA 29; 361 ALR 115 Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 Teubner v Humble (1963) 108 CLR 491 Blatch v Archer (1774) 1 Cowp 64; 98 ER 969 Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 Scott v Copenhagen Reinsurance Co (UK) Ltd [2003] 2 All ER (Comm) 190 Wentworth Securities Ltd v Jones [1980] AC 74 Halsbury's Laws of England, 4th ed, vol 26, at [580]

WHEELAHAN J: 1 This is an application for a writ of habeas corpus directing the first respondent, the Secretary of the Department of Home Affairs, to release the applicant from immigration detention. 2 The applicant is a Faili Kurd of Shia Muslim faith. To explain the genesis of his application, it is enough to map the broad contours of the applicant's life and legal status in Australia. The applicant was born in Iraq, but grew up in Iran after being deported there as a young child. In 2012, the applicant travelled to Australia by boat. Upon his arrival, he was taken into immigration detention. For a time, the applicant was at liberty in the Australian community as the holder of a bridging visa. That visa was cancelled, however, in 2016, and the applicant's application for a protection visa was later refused. Aside from some time on remand, the applicant has remained in immigration detention ever since. The applicant has made a series of challenges to the refusal of his protection visa application, but now seeks to be removed from Australia. The Department has not yet succeeded in arranging the removal of the applicant from Australia. For that reason, he remains in immigration detention. 3 The applicant submits that his continuing detention is not authorised by ss 189(1) and 196(1) of the Migration Act 1958 (Cth). He bases that submission on the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005, which held that the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia comes to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future. The High Court held that, where this constitutionally permissible period would otherwise be exceeded, s 3A of the Migration Act requires that ss 189(1) and 196(1) not apply so as not to authorise the continuing detention of the alien. 4 The exclusive foundation on which the applicant seeks a writ of habeas corpus is the submission that there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future, meaning there is no positive legal authority for his continuing detention. 5 The applicant has invoked the jurisdiction of this Court to resolve a justiciable controversy concerning his right to personal liberty, which arises under a law made by the Commonwealth Parliament and, indeed, under the Constitution itself. This Court therefore possesses jurisdiction under s 39B(1A) of the Judiciary Act 1903 (Cth). Its jurisdiction having been regularly invoked, the Court is clothed with the power to direct the issue of a writ of habeas corpus. Further, under s 23 of the Federal Court of Australia Act 1976 (Cth), it has power to make an order in the nature of habeas corpus, that is, an order of its own force without the procedural step that a writ issue: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 at [2] (Allsop CJ), [75] (Besanko J) and [188]-[248] (Mortimer J).

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