Federal Court. "In determining whether there is a real prospect of a detainee's removal from Australia becoming practicable in the reasonably foreseeable future, should there be regard to voluntary actions that may be undertaken by the detained person to assist in their removal irrespective of whether the detainee is refusing to undertake those actions in respect of removal to a particular place because of a genuine subjective fear of harm if removed to that place"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In the context of determining whether there is real prospect of removing an alien from Australia becoming practicable in the reasonably foreseeable future, is the ongoing detention of the alien lawful where "the person in immigration detention contributes to the frustration of the pursuit of lines of inquiry by officers of the Department attempting to bring about the person's removal"?
Question 2: In the context of determining whether there is real prospect of removing an alien from Australia becoming practicable in the reasonably foreseeable future, is the ongoing detention of the alien lawful where "officers are in the process of pursuing lines of inquiry to arrange the person's removal"?
Question 3: If the answer to Question 1 is 'yes', would an exception exist where the the detainee is refusing to cooperate because of a genuine subjective fear of harm if removed to that place?
Question 4: In proving that removal is practicable in the reasonably foreseeable future, is the Minister required to satisfy the balance of probabilities?
The FCA answered those questions as follows: