High Court. In determining whether removal to a country is practicable in the reasonably foreseeable future, can the steps practically available to be taken "be expected frequently to include administrative processes directed to removal which require the cooperation of the detainee and in which the detainee has the capacity to cooperate"?
Some of the questions to the High Court (HCA) were as follows:
Question 1: Will intervention in Court proceedings ordinarily not be permitted to a party who may only suffer an "indirect or contingent affection of [their] legal interests following from the extra-curial operation of the principles enunciated in the decision of the Court"?
Question 2: Can it be said that, for the removal of an alien from Australia under s 198(1) or s 198(6) of the Act to be Migration Act 1958 (Cth) to practicable, "there must first and foremost be identified a country to which that alien might be removed, and removal of that alien to that country must be permissible under the Act"?
Question 3: Can it be said that, s 197C(3) of the Act "would operate to prevent involuntary removal of ASF17 to Iran if: ASF17 had raised a claim to fear harm in Iran in his original application for a SHEV, which resulted in a finding under s 36(2)(a) or s 36(2)(aa); or the bar imposed by s 48A against ASF17 making a further application for a protection visa were to be lifted in the exercise of the personal non-compellable power conferred on the Minister by s 48B and a further application by him raising a claim to fear harm in Iran by reason of his sexual orientation were made resulting in a finding under s 36(2)(a) or s 36(2)(aa); or the Minister were to make such a finding in the course of considering the exercise of the personal non-compellable power conferred on the Minister by s 195A"?
Question 4: Can it be said that "a claim on the part of a detainee facing removal to fear harm in a country to which the detainee might be removed is insufficient to preclude removal to that country", even if a court finds that claim to be genuine or well-founded?
Question 5: Would it "be punitive to detain an alien with the benefit of a protection finding if there were no real prospect of removal of the detainee from Australia becoming practicable in the reasonably foreseeable future to any country other than the country the subject of the protection finding"?
Question 6: In determining whether removal to a country is practicable in the reasonably foreseeable future, can the steps practically available to be taken "be expected frequently to include administrative processes directed to removal which require the cooperation of the detainee and in which the detainee has the capacity to cooperate"?
The HCA answered those questions as follows: