Page:ASF17 v Commonwealth of Australia.pdf/23

Edelman J

well-founded fear of persecution (used in these reasons to mean persecution for reasons of race, nationality, membership of a particular social group including one based on sexuality, or political opinion). The Migration Act scheme recognises that an alien might have such a genuine and well-founded fear and, where a protection finding has been made, prevents removal of the alien without their consent to the place where protection is required.

61 The application of the general provisions of ss 189(1) and 196(1) of the Migration Act would require detention pending removal from Australia of those aliens who are not granted a visa, even when the only real prospect of their removal in the reasonably foreseeable future is to the country which is the subject of a protection finding. That application of those general provisions cannot be reasonably capable of being seen as necessary for the legitimate purpose of removal of such aliens from Australia where the only real prospect of removal requires the alien's consent to be returned to a country where they have been found to have a well-founded fear of persecution. An approach which would treat ss 189(1) and 196(1) as requiring the continuing detention of aliens until they consent to be removed to a place where they have been found to require protection would require overruling Lim.

62 On the other hand, contrary to the submissions of ASF17 and AZC20 but subject to any issues arising from significant gaps in the Migration Act scheme, ss 189(1) and 196(1) will generally be reasonably capable of being seen as necessary for the purpose of removal from Australia of aliens who might refuse, without any incapacity (including psychiatric illness) or protection finding under the Migration Act, to provide necessary assistance in the removal process. In such circumstances the means of detention are proportionate to the end of removal of certain classes of aliens from Australia because, perhaps with advice, counselling and relocation assistance, there is a real prospect that such persons might consent to removal in the reasonably foreseeable future.

63 There has never been any suggestion that ASF17 lacks capacity in any way, unlike AZC20. Further, a delegate of the Minister found (in a decision that was not quashed on judicial review to the Federal Circuit Court of Australia or on further appeal to the Federal Court of Australia ) that ASF17 did not have a well-founded fear of persecution. Although the delegate was found not to have properly