Page:ASF17 v Commonwealth of Australia.pdf/11

Gageler CJ Gordon J Steward J Gleeson J Jagot J Beech-Jones J

argument that for ASF17 to point to a theoretical possibility of removal to an unidentified third country cannot assist him in circumstances where the Commonwealth has accepted the legal burden of establishing that there is a real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future and where the only country to which the Commonwealth has sought to establish that there is a real prospect of removing him is Iran.

The primary judge's process of reasoning

24 Reasoning to the conclusion that the continuing detention of ASF17 did not exceed the constitutional limitation identified in NZYQ, the primary judge adopted and acted upon the view that "in determining whether there is a real prospect of removal becoming practicable in the reasonably foreseeable future there is to be regard to all actions that might be taken with the cooperation of the person being detained, save only for instances where the person is incapable of cooperating". His Honour explained that view to encompass regard to all actions as might be taken with the cooperation of the detainee "irrespective of whether the detainee is refusing to undertake those actions in respect of removal to a particular place because of a genuine subjective fear of harm if removed to that place".

25 The primary judge distinguished AZC20 as a case in which the detainee was incapable of cooperating due to mental health problems, specifically disagreeing with the view expressed by Kennett J in that case to the effect that regard is to be had to actions that might be taken but are not being taken due to the non-cooperation of the detainee only where the detainee has embarked on "a deliberate strategy of preventing their removal from Australia".

26 ASF17 challenged the primary judge's process of reasoning on two principal grounds. The first and broadest of those grounds was to the effect that, as a detainee has no statutory duty to cooperate in their own removal from Australia, non-cooperation on the part of a detainee in the undertaking of an