2.
Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).
Question 4: If so, are those provisions beyond the legislative power of the Commonwealth insofar as they currently apply to the plaintiff?
Answer: Yes.
Question 5: What, if any, relief should be granted to the plaintiff?
Answer: The following orders should be made:
- It is declared that, by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future:
- the plaintiff's detention was unlawful as at 30 May 2023; and
- the plaintiff's continued detention is unlawful and has been since 30 May 2023.
- A writ of habeas corpus issue requiring the defendants to release the plaintiff forthwith.
- It is declared that, by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future:
Question 6: Who should pay the costs of the further amended special case?
Answer: The defendants.
Representation
C L Lenehan SC and F I Gordon KC with J S Stellios and T M Wood for the plaintiff (instructed by Allens)
S P Donaghue KC, Solicitor-General of the Commonwealth, and P D Herzfeld SC with Z C Heger and A M Hammond for the defendants (instructed by Australian Government Solicitor)
P M Knowles SC with M F Caristo for the Australian Human Rights Commission, appearing as amicus curiae (instructed by Australian Human Rights Commission)
