Federal Court. Is one reason why there may be no real prospect of removal becoming practicable that the Migration Act 1958 (Cth) itself imposes a statutory preclusion on the removal of the applicant? If so, did s 198(11) have the effect that removal of the applicant was only permitted to a regional processing country?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In assessing whether there is a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future, is the focus on whether the applicant has been detained for a long time, or even longer than may have been reasonably necessary to effect his removal?
Question 2: Can the history of efforts to remove the applicant from Australia rationally inform the Court’s assessment of whether there is a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future?
Question 3: If a writ of habeas corpus issues, or an order in the nature of habeas corpus is made in these circumstances, will it require the release of the applicant forthwith?
Question 4: Is the starting point in assessing an application for habeas corpus that every person is entitled to be at liberty, unless some positive law authorises another to detain the person?
Question 5: Where an applicant seeks the specific relief of immediate liberation from such unlawful executive detention, is the appropriate form of proceeding by writ of habeas corpus?
Question 6: Although factual findings in other cases are not binding, and one should not reason from factual conclusions in one case to a factual conclusion in another, is one of the characteristics of our legal system that legal principles, including the organising principles for the application of statutory provisions, are developed through decided cases, and that “it is the insight of the common law that wisdom can be drawn from previous examinations of similar problems”?
Question 7: Can it be said that, what the respondents must show to demonstrate a real prospect of the removal of the applicant becoming practicable in the reasonably foreseeable future "can only be determined while keeping in mind that the underlying question is whether the detention is reasonably capable of being seen to be necessary for the purpose of removing the applicant from Australia"?
Question 8: Should the Court should proceed on the basis that the reasonably foreseeable future in this case can be said, in some abstract way, to extend to only a few months?
Question 9: Is the question whether “there are steps which are practically available to be taken which, if taken, can realistically be predicted to result in the removal of the detainee to that country in the reasonably foreseeable future”?
Question 10: Is the legal burden borne by a respondent to an application for habeas corpus always stable, irrespective of whether any applicable evidentiary onus has been discharged?
Question 11: If a habeas corpus applicant discharged his evidentiary burden by raising an issue as to whether he was fit to travel for a particular reason, did it "then fall to the respondents, in the discharge of their legal burden, to prove that the applicant was in no other way unfit to travel, by disproving every other possible medical condition that the applicant may conceivably have had"?
Question 12: As a matter of law, is the practicability of removing a habeas corpus applicant to a particular country affected by the fact that there has been no formal finding relating to whether the applicant is owed protection obligations in respect of that country?
Question 13: Is one reason why there may be no real prospect of removal becoming practicable that the Migration Act 1958 (Cth) itself imposes a statutory preclusion on the removal of the applicant?
Question 14: If the answer to Question 13 is 'yes', can s 197C(3) of the Migration Act 1958 (Cth) operate to prevent the removal of a person to a country where there is an extant protection finding in respect of that country, rendering removal not practicable?
Question 15: Can it be said that, because s 198(11) provides that s 198 does not apply where s 198AD applies, an unlawful non-citizen in detention will only be capable of meeting one of s 196(1)(a) or s 196(1)(aa) at any given time?
Question 16: If s 198AD applies to the applicant, does the High Court’s holding in NZYQ require that there be a real prospect of his removal to a regional processing country becoming practicable in the reasonably foreseeable future?
Question 17: Can it be said that "the power to make a determination under s 46A(2) can only be exercised personally, and that while the Minister was not required to deliver the notice personally, s 46A(2) required that notice be given on behalf of the Minister in some express way"?
Question 18: If the Minister lifts the bar under s 46A, a person then makes a protection application, and the Minister then revokes the lifting of the bar, does that revocation have retrospective effect so as to invalidate that visa application?
Question 19: In AZC20, the High Court held that the Full Court of the Federal Court did not have jurisdiction to determine an appeal from a single judge of the Federal Court, with the result that the orders of the Full Court no longer had any legal effect, and the orders of the single judge constituted the applicable exercise of judicial power in the matter. Is the Court nevertheless able to take account of the reasons of the Full Court as persuasive authority in considering whether it should depart from the decision of single judge in AZC20?
Question 20: If the answer to Question 13 is 'yes', did s 198(11) operate to prevent the removal of the applicant, rendering removal not practicable?
The FCA answered those questions as follows:
The remainder of this article is only available to Case Law and Platinum subscribers.
Read our Terms & Conditions and upgrade below:
Monthly Subscriptions
Annual Subscriptions
Where GST applies, the above amounts are inclusive of GST.
Content Types
Basic Content includes basic news, some media articles and selected announcements.
Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.
Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.
Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.
If you already have a Case Law or Platinum subscription, click on 'Login' below.