CONSTITUTIONAL LAW -- application for writ of habeas corpus - consideration of the constitutional and statutory limit on executive detention established in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 - where the applicant is in immigration detention - where the applicant has requested removal from Australia - where the case was initially argued on the basis that s 198(1) of the Migration Act 1958 (Cth) applied to the applicant, thereby requiring his removal from Australia - where Iran and Iraq were identified as countries to which the applicant could be removed - whether there is a real prospect of the removal of the applicant to Iran or Iraq becoming practicable in the reasonably foreseeable future - where the respondents conceded that the applicant had discharged an evidentiary burden to put the lawfulness of his detention in issue - where the respondents bore the legal onus to prove that the detention of the applicant was authorised by law - there is no real prospect of the removal of the applicant to Iran becoming practicable in the reasonably foreseeable future - there is a real prospect of the removal of the applicant to Iraq becoming practicable in the reasonably foreseeable future.
MIGRATION -- construction of ss 198 and 198AD of the Migration Act - where s 198(11) provides that s 198 does not apply in circumstances where s 198AD applies - where s 198AD(2) requires persons to whom it applies to be taken to a regional processing country as soon as reasonably practicable - whether s 198AD applies to an unauthorised maritime arrival in whose favour the Minister has made a determination under s 46A(2) - decision of Rangiah J in AZC20 v Minister for Home Affairs [2021] FCA 1234 considered - decision of the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52; 290 FCR 149 considered - where the High Court overruled the judgment of the Full Court on the basis that it lacked jurisdiction - Rangiah J's decision is to be followed unless it is plainly wrong - Rangiah J's decision is not plainly wrong - s 198AD applies to the applicant - there was no evidence concerning the prospects of taking the applicant to a regional processing country, as is required by s 198AD(2) - the respondents' legal onus to justify the detention of the applicant is not discharged - order that the applicant be released from detention made.
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