s 198: what factors inform duty to remove?

Federal Court. In AJL20, the FCA held that, as the duty to remove a non-citizen from Australia under s 198 of the Migration Act 1958 (Cth) is not country specific, the attempts to remove a person should not be limited to their home country. What factors informed the answer to the question of whether the Minister discharged the duty to remove the Applicant as soon as reasonably practicable? Was AJL20 plainly wrong?

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

Question 1: Did the fact that the Applicant was stateless and had no travel documents inform whether the Commonwealth's duty to remove him as soon as reasonably practicable was discharged?

Question 2: Did the Applicant's refusal to give consent to be removed to any country inform whether the Commonwealth's duty to remove him as soon as reasonably practicable was discharged?

Question 3: It was common ground that the Applicant suffered from "various mental health conditions and his intellectual abilities are in the low range". It was argued by the Applicant's litigation representative that he lacked the mental capacity to give informed consent to removal. There was no evidence to indicate that, "if a guardian had been appointed during the alleged period of unlawful immigration detention, this may have produced a different outcome". Is it probably that "a guardian would have given consent to the applicant’s removal to either Iran or Iraq given his status as a Faili Kurd and the relevant findings of the IAA"? 

Question 5: Did the Applicant's "previous criminal record and conduct which underpinned the Minister’s latest decision to refuse him a Protection Visa" inform whether the Commonwealth's duty to remove him as soon as reasonably practicable was discharged?

Question 5: Is the fact that "there were some intervals during the relevant period when there was no direct activity to remove the applicant from Australia" determinative of whether the Commonwealth's duty to remove him as soon as reasonably practicable was discharged? Or is the question rather whether "such periods of inactivity were unreasonable in the applicant’s particular circumstances"?

Question 6: Even if, despite the "real practical difficulties presented by the COVID-19 pandemic in arranging for the applicant to be removed from Australia to any other country", it had been possible to remove the applicant to some other country during the relevant period, did the fact that removal "could only have been done if he had a security escort because of his criminal record and the requirements of the Aviation Transport Security Regulations 2005 (Cth)" inform whether the Commonwealth's duty to remove him as soon as reasonably practicable was discharged?

Question 7: Was AJL20 plainly wrong?

The FCA answered those questions as follows:

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