Page:ASF17 v Commonwealth of Australia.pdf/40

Edelman J

(1) Sections 189(1) and 196(1) must be disapplied in cases of incapacity to assist in removal

107 In NZYQ, the disproportionate application of ss 189(1) and 196(1) of the Migration Act between the means of detention and the legitimate purpose of removal of classes of aliens from Australia arose from the refusal of any country to accept the removal of NZYQ. The same reasoning applies where a detained alien, for reasons of a medical or psychiatric nature, is unable to provide the necessary assistance to the Commonwealth for their removal to the only country where there is any real prospect of removal in the reasonably foreseeable future. The Solicitor-General of the Commonwealth thus appeared to accept, correctly, that ss 189(1) and 196(1) of the Migration Act must be disapplied from their application to situations involving removal of aliens who lack capacity.

108 Contrary to the submissions of ASF17, however, and subject to the circumstances discussed below concerning aliens who require protection in the country to which their removal is sought, the same conclusion cannot be reached in relation to aliens who are capable of consenting but refuse to be removed to a country that requires voluntary removal. The detention of that class of aliens is reasonably capable of being seen as necessary for their removal from Australia because there is a real prospect that aliens in that class (perhaps with counselling, advice and relocation assistance) will consent to be removed from Australia in the reasonably foreseeable future.

(2) Sections 189(1) and 196(1) must be disapplied in cases of a protection finding

109 In oral submissions in reply, senior counsel for ASF17 submitted that ASF17 was being detained in circumstances where the only country to which the Commonwealth sought to remove him was a country where he has a genuine and well-founded fear of persecution or execution. This submission can be expressed in terms of the second requirement as a claim that ss 189(1) and 196(1) of the Migration Act in authorising the detention of persons in the position of ASF17 are not reasonably capable of being seen as necessary for the purpose of removal of classes of aliens from Australia and therefore those provisions must be disapplied from such circumstances.

110 For the reasons explained above, ss 197C and 198(5A) of the Migration Act preclude a conclusion that ss 189(1) and 196(1) could have an illegitimate purpose of executive punishment by authorising the removal of an alien to a place where they have a well-founded fear of persecution. Section 197C prevents removal of a person to a place where they had, and have, a well-founded fear of