Breach of s 198 remedied by mandamus, not habeas corpus?

High Court. Was the Executive's desire to comply with Australia's non-refoulement obligations an improper justification not to remove the unlawful non-citizen Respondent from Australia, by virtue of s 197C of the Migration Act 1958 (Cth)? If the Minister fails to remove a person from Australia under s 198 as soon as reasonably practicable, is the appropriate remedy an order mandating compliance by the Executive with the duty imposed by s 198, as opposed to the release of the non-citizen?

Some of the questions to the High Court (FCA) were as follows:

Question 1: Was the Executive's desire to comply with Australia's non-refoulement obligations an improper justification not to remove the unlawful non-citizen Respondent from Australia, by virtue of s 197C of the Migration Act 1958 (Cth)?

Question 2: If the Minister fails to remove a person from Australia under s 198 as soon as reasonably practicable, is the appropriate remedy an order mandating compliance by the Executive with the duty imposed by s 198, as opposed to the release of the non-citizen?

Question 3: Can it be said that the Migration Act 1958 (Cth) "provides no middle ground between being a lawful non-citizen (entitled to remain in Australia in accordance with any applicable visa requirements) and being an unlawful non-citizen, who may, usually must, be detained and who (assuming there is no pending consideration of a valid visa application) must be removed from Australia as soon as reasonably practicable"?

Question 4: Is an unlawful non-citizen kept in immigration detention under s 189, as opposed to s 196, for the period specified in s 196?

Question 5: Can it be said that "[a]liens, not being members of the community that constitutes the body politic of Australia, have no right to enter or remain in Australia unless such right is expressly granted"?

Question 6: Can it be said that, "if [a] statute, properly construed, can be seen to conform to constitutional limitations upon legislative competence without any need to read it down to save its validity, then it is valid in all its applications, and no further constitutional issue arises" and that the question then is "whether the executive action in question was authorised by the statute, with that question to be resolved by reference to the statute as a matter of administrative law"?

Question 7: Was s 196(3) of the Migration Act 1958 (Cth) invalid?

Question 8: In answering Question 7, can it be said that s 196 "precludes a court from ordering the release of persons who are lawfully detained"?

Question 9: If the answer to Question 3 is "yes", is that answer qualified in that the requisite knowledge or suspicion must continue to exist throughout the period of detention?

The HCA answered those questions as follows:

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