First habeas corpus case relying on NZYQ

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

Question 1: Was it "a matter for serious concern that it took two years for the Minister to decide to permit the applicant to make a visa application, longer for a primary decision to be made on that application and longer still for review processes to be completed, while he languished in detention"?

Question 2: Is the standard of proof born by a respondent to a habeas corpus application the civil standard (the balance of probabilities), even though the degree of persuasion that must be achieved reflects the seriousness of the issues involved?

Question 3: Is s 3A(1) of the Migration Act 1958 (Cth) "to be understood as an interpretation provision stating (albeit not definitively) the intention of the Parliament as to what operation provisions of the Act are to have in the event that, read according to their terms, they exceed legislative power"?

Question 4: Do the terms 'Real prospect' and 'reasonably foreseeable future' "express evaluative notions (although they are components of a legal test for validity and thus raise questions which have a single correct answer ...)"?

Question 5: Can it be said that, "where the relevant lines are to be drawn in future cases may be fact-sensitive and may depend on experience drawn from earlier cases"?

Question 6: Did the efforts to remove NZYQ from Australia, as the hearing date approached, appear to have become quite intensive?

Question 7: Has the decision of the Full Court of the Federal Court in Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009; 192 ALR 609 been revived, in its result if not its reasoning, by the High Court's decision in NZYQ?

Question 8: Can it be said that, "while s 198 of the Act authorises removal of a detainee to any place that will receive them, relevant principles of international law mean that Australia will normally look, in the first instance, to the detainee’s country of nationality if they have one"?

Question 9: In circumstances where the respondents did not contend that there was any likelihood of the applicant being able to be removed to any other country other to his country of nationality (Iran), is it necessary for the Court only to consider whether there exists a real prospect of removing the applicant to Iran in the reasonably foreseeable future?

Question 10: Do ss 198(1), (2), (2A), (2B), (5), (6), (7), (8) and (9) of the Migration Act 1958 (Cth) refer to removing an unlawful non-citizen in general terms, not removal to any particular country or place, although the countries to which a person can lawfully be removed may be affected by s 197C(3) of the Act?

Question 11: Can it be said that, although the past is often a useful guide to the future, the issue in a habeas corpus application is not the adequacy of officers’ attempts to remove a non-citizen?

Question 12: May assiduous and energetic attempts to remove a non-citizen help a claim for habeas corpus if they have not succeeded?

Question 13: Can it be said that, "when the event that is in issue cannot occur without a change in circumstances, and there is nothing to indicate when (or even whether) that change might occur, it can readily be concluded that there is not a real prospect of the event occurring in the reasonably foreseeable future"?

Question 14: Has NZYQ overruled Plaintiff M47?

Question 15: Is an alien who has no legal right to remain in Australia "permitted to engineer their own release into the community by frustrating the efforts of officers to carry out their duty under s 198 of the Act"?

Question 16: If the answer to Question 15 is 'yes', should that principle "be understood to apply only where an unlawful non-citizen embarks on a deliberate strategy of preventing their removal from Australia"?

Question 17: If the answer to Question 15 is 'yes', should a non-citizen who seeks to prevent his/her return to the country where they fear harm, but does not seek to prevent his/her removal from Australia to some other place, be seen as engineering their own release into the community by frustrating the efforts of officers to carry out their duty under s 198 of the Act?

Question 18: Does the Applicant's mental health problems over a lengthy period mean that it is not realistically within his power to change his approach to one of cooperation with removal to Iran?

Question 19: Does s 197C(3)(c)(i) indicate that a “protection finding” is a "finding made, not just in the course of the process leading to (for example) the grant or refusal of a visa, but as part of the reasoning process of the decision maker"?

Question 20: Is the relevant “finding” within s 197(3)(c) a conclusion reached by the person who makes the “decision”, "either as part of the basis for the decision, as a reason why disqualifying factors (such as those set out in s 36(2C)) need to be addressed, or for the purpose of making a record in order to comply with s 36A"?

Question 21: Does s 197C(3)(c)(i) also indicates an intention that “protection findings” are relevant "only if contained in the most recent, and legally operative, decision made by or on behalf of the Minister"?

Question 22: On the assumption that the applicant’s lack of a travel document to Iran could be overcome, is there "a real prospect that arrangements could be made which would result in removal of the applicant to Iran being assessed as “reasonably practicable”, and thus authorised (if reasonable practicability does give rise to a legal limit on the power), within the reasonably foreseeable future"?

Question 23: If the Court finds that the applicant's detention is unlawful, can it be said that the claim for mandamus requiring the applicant’s removal prima facie "cannot succeed in circumstances where the applicant is not detained (and therefore no duty arises under s 198)"?

The FCA answered those questions as follows: