Page:ASF17 v Commonwealth of Australia.pdf/16

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

investigation to be genuine or well-founded. The scheme of the Act accommodates eleventh-hour claims of that nature exclusively through the potential for the exercise of one or other of the personal non-compellable powers conferred on the Minister by s 48B or s 195A.

39 Conversely, where an alien detainee has the benefit of a protection finding, the power and duty to remove the detainee is affected by Australia’s non-refoulement obligations under s 197C, and whether there is a real prospect of removal of the detainee from Australia becoming practicable in the reasonably foreseeable future is then relevant to whether the detention of the alien under ss 189(1) and 196(1) of the Act is justified. That is, it would be punitive to detain an alien with the benefit of a protection finding if there were no real prospect of removal of the detainee from Australia becoming practicable in the reasonably foreseeable future to any country other than the country the subject of the protection finding.

40 Real world difficulties may well be encountered at the initial stage of identifying a country to which the detainee might permissibly be removed under s 198(1) or s 198(6). The difficulties may be especially grave and persistent in the case of an alien detainee who is stateless or whose removal to their country of origin is precluded by s 197C(3). Indeed, intractable difficulties of that nature were the root of the problem in NZYQ and before that were the root of the problem in Al-Kateb v Godwin. Difficulties of that nature have arisen in other cases before the Court. Difficulties of that nature are categorically not the problem in this case. There has been no difficulty identifying a country to which ASF17 might permissibly be removed under s 198(1) or s 198(6) consistently with s 197C of the Act. As an Iranian citizen, he might permissibly be removed to Iran.

41 Where a country has been identified to which a detainee might permissibly be removed under s 198(1) or s 198(6) consistently with s 197C of the Act, the