Protection criteria to be assessed as if removal could occur?

Federal Court (Full Court). Does the phrase 'being removed from Australia' in s 36(2)(aa) of the Migration Act 1958 (Cth) extend to voluntary or involuntary removal under s 198 or potentially under other provisions? If there is no prospect of an applicant being removed to their country voluntarily or involuntarily, is the decision-maker nevertheless obliged to consider s 36(2)(a) or (aa) as if removal could occur?

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

Question 1: Does the phrase 'being removed from Australia' in s 36(2)(aa) of the Migration Act 1958 (Cth) extend to voluntary or involuntary removal under s 198 or potentially under other provisions?

Question 2: Should the phrase 'being removed from Australia' in s 36(2)(aa) of the Migration Act 1958 (Cth) be interpreted in a way so that it would "be enough, for example, for a decision maker to simply assert that there will be no removal to the country where harm is feared, to consider the visa applicant's claim no further, and to reject it because absent the posited mode of return, no protection from the feared harm is required"?

Question 3: Can it be said that, in the absence of "the identification by the visa applicant of any particular link between the mode of removal and the feared harm, it may not be necessary for the Tribunal to identify the mode of removal"?

Question 4: Is the Tribunal required to speculate as to the "theoretical modes of removal and make findings as to the risk of harm that might follow from each"?

Question 5: If the answer to Question 4 is 'yes', can it nevertheless be said that, "where a particular mode of removal is identified by an applicant (for example, entry to a particular port) and linked to a particular risk of harm, then that claim falls to be considered in the same manner as any other factual premise that underlies a claim"?

Question 6: May there be "circumstances where the Tribunal finds that there is no real prospect of removal at all and it is far-fetched to assume to the contrary"?

Question 7: If the answer to Question 6 is 'yes', might such circumstances "provide an example of a case where the criteria ins 36(2)(aa) cannot be met and the visa applicant will have failed to make out a case for a protection visa", as "the applicant will have failed to persuade the Tribunal that there is a realistic scenario in which, on return, he or she will suffer harm"?

Question 8: If the answer to Question 7 is 'yes', may the prospect of indefinite detention nevertheless be relevant to the determination under s 36(2)(aa) in that, for instance, "it may well inform the question of the likelihood of any requested removal or other voluntary return in a particular case"?

Question 9: Does s 36(2)(aa) require the Tribunal to consider all hypothetical outcomes into the future?

The FCAFC answered those questions as follows:

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