Issue (1): 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?
32 The only decision to consider the application of the constitutional limit as articulated in NZYQ is AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497. In that case, Kennett J concluded, with respect correctly, that nothing in NZYQ overruled the reasoning in Plaintiff M47 as to why the circumstances in that case were not outside any constitutional limitation that might be claimed to exist if the decision in Al-Kateb was revisited: at [62]. Further, as his Honour there explained, in Plaintiff M47 'the High Court was not prepared to hold that there was no real prospect of the plaintiff's removal in circumstances where the lack of any such prospect was a consequence of the plaintiff's own deliberate conduct': at [63].
33 However, Kennett J then went on to consider what his Honour described as the point of principle that emerged from the majority reasoning in Plaintiff M47. In that regard, his Honour said at [64]:
People in immigration detention may seek to delay or frustrate their removal from Australia for a variety of reasons and are not under any general obligation to cooperate in the process. The point of principle, as I understand it, is that an alien who has no legal right to remain in Australia is not to be permitted to engineer their own release into the community by frustrating the efforts of officers to carry out their duty under s 198 of the Act. Accordingly, assessment of whether there exists a real prospect of removing an unlawful non-citizen assumes that they will not act so as to frustrate that removal. There may well be a normative aspect to this assumption. How this principle is articulated as an aspect of constitutional law (rather than legislative intention) following NZYQ remains to be seen. However, as noted earlier, I am proceeding on the basis that Plaintiff M47 has not been overruled and is binding.
34 His Honour then found that the applicant in AZC20 was 'not caught by the principle that emerges from Plaintiff M47': at [65]. In reaching that conclusion, his Honour reasoned in the following way:
(1) the principle in Plaintiff M47 should be understood to apply 'only where an unlawful non-citizen embarks upon a deliberate strategy of preventing their removal from Australia' because, as an exception to the operation of a constitutional rule that protects individual liberty, it should be understood to operate narrowly: at [65(a)];
(2) the applicant did not seek to prevent his removal from Australia, rather he sought to prevent his removal to Iran: at [65(b)];
(3) the applicant's opposition to being removed to Iran had its basis in a strong belief that he would suffer persecution if he were to return to Iran: at [65(c)];
(4) by reason of the state of his mental health, the applicant was unable to change his approach to one of cooperation with his removal to Iran: at [65(d)]; and
(5) the position of the plaintiff in Plaintiff M47 was to be distinguished because of the absence of any suggestion that his failure to provide information was due to incapacity or mental illness and it was inferred in that case that it was within the power of the plaintiff to cooperate in his removal.
35 The applicant in the present case sought to gain assistance from the above reasoning, particularly the statement of the nature of the principle said to be established by Plaintiff M47. For the applicant, the reasoning of Kennett J was said to support the position that a person in immigration detention had no responsibility to cooperate in their removal, alternatively that they may refuse to cooperate provided that they did not do so as part of an effort to engineer their release into the community.
36 The Commonwealth submitted that to the extent that AZC20 relied upon circumstances other than the mental incapacity of the applicant to cooperate, it was plainly wrong.
37 Before dealing with those competing contentions, it is important to recognise that the decision in AZC20 must be distinguished from the present circumstances in two respects. First, the applicant in the present proceedings did not claim (at least at the time of the hearing) to be burdened with any mental health problems that meant that he was incapable of cooperating. In that regard, the applicant was cross-examined as to his ability to make decisions. Based upon the early part of his cross-examination and the course of his evidence in general, I find that the applicant has the capacity to instruct his lawyers in these proceedings and, despite his mental health being affected and his history of depressive illness, he has made a voluntary decision not to cooperate in meeting with Iranian authorities to facilitate his removal to Iran, a decision which he has the capacity to change but which he chooses not to change. In dealing with Issue (3), I consider separately below the applicant's evidence as to the reasons for making and maintaining that choice.
38 Second, a matter of somewhat less significance than the first, the applicant in the present case does not claim to have commenced proceedings to require officers to carry out their duty to remove him.
39 Further, as has been explained, the reasoning pathway of Kennett J in AZC20 depended materially upon the finding concerning the mental health problems of the applicant in that case. That is to say, a significant part of the foundation for the outcome was his Honour's finding that the applicant in AZC20 was not capable of cooperating. Therefore, it cannot be said that the circumstances in AZC20 are on all fours with the present case.
40 Nevertheless, his Honour's reasoning as to what was said to be a principle that emerges from Plaintiff M47 was also foundational to the outcome. As such, a judge of this court should usually follow that part of the reasoning unless the judge is of the view that the reasoning is plainly wrong: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75]-[76] (French J); and BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 283 FCR 97 at [62] (Allsop CJ, Moshinsky and O'Callaghan JJ). The rationale for judicial comity means that his Honour's reasoning is not to be departed from without a strong conviction of error that can be demonstrated by reasoning and a persuasion that notwithstanding the importance of the underlying principles of certainty, stability and predictability it is proper for one judge to depart from an earlier decision: Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1 at [283]-[301] (Allsop P, Beazley and Basten JJA) (dealing with the principles in an appellate context).
41 With respect to his Honour, for the reasons which follow, I am unable to agree that the constitutional limit as expressed in NZYQ might be confined to an instance where an unlawful non-citizen embarks on a deliberate strategy of preventing removal from Australia. In my respectful view it is not possible to reason from Plaintiff M47 that there is some requirement or principle unexpressed in NZYQ to the effect that there is no real prospect of removal where the detainee does not cooperate in ways that could be said to fall short of what might be termed active frustration of the person's removal from Australia or part of a deliberate strategy of preventing removal from Australia.
42 In NZYQ, the High Court considered and rejected other formulations of the constitutional limit. If it had been intended that some particular significance would be given to the normative characterisation of the conduct of the detainee that might support a conclusion that there was no real prospect of removal then it would be expected that it would have found expression in the language of the limitation.
43 Nor can it be said that Plaintiff M47 was concerned with establishing any principle as to the extent of the constitutional limitation. In Plaintiff M47 all members of the Court determined that the issue as to whether there was a constitutional limitation of the kind contended for by the plaintiff in that case did not arise on the facts in that case. That is to say, the case is only authority for the negative proposition that the constitutional issue did not arise on the facts in that case. It is not authority for any affirmative proposition as to the nature or extent of the constitutional limitation. In particular, the reasoning in Plaintiff M47 did not engage with the way in which the reasoning in Lim (as affirmed in subsequent cases) provided the foundation for the constitutional limitation as determined in NZYQ. As explained below, it is only by reference to that reasoning in NZYQ that any conclusions at the level of principle may be drawn.
44 The High Court in NZYQ did not reason from Plaintiff M47 in expressing the constitutional limitation. Rather, the High Court reasoned from what followed directly from the principle as stated in Lim: see NZYQ at [55]. In NZYQ, the High Court referred to the principle as applied and formulated in Lim as one which required statutory power to detain in custody for the purpose of deporting or removing a person (if permission to remain in Australia is not granted) as only being constitutionally valid if the power was limited in its application to a period of time that is reasonably capable of being necessary to effect that purpose and reasonable capable of achieving that purpose: at [24]-[43].
45 Six members of the High Court, reasoning from the principle in Lim, determined as follows (at [44]-[45]):
… Applying that principle in circumstances where there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future, it cannot be said that, objectively determined, the 'purpose of the detention is to make the alien available for deportation' or 'to prevent the alien from entering Australia or the Australian community' pending the making of a decision as to whether or not they will be allowed entry.
Therein lies the reason why the constitutional holding in Al-Kateb, having been reopened, must be overruled. The Lim principle would be devoid of substance were it enough to justify detention, other than through the exercise of judicial power in the adjudgment and punishment of guilt, that the detention be designed to achieve an identified legislative objective that there is no real prospect of achieving in the reasonably foreseeable future.
(emphasis added)
46 This reasoning involves no resort to anything said in Plaintiff M47 which, of course, did not consider the terms in which any constitutional limit ought to be expressed. Further, the reference to what may be 'objectively determined' is significant. In the subsequent formulation of the constitutional principle there is no departure from this objective approach.
47 All members of the Court then joined in the following statement at [55]:
For the reasons already given, expressing the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia as coming to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future follows directly from the principle in Lim. This is the appropriate expression of the applicable constitutional limitation under a statutory scheme where there is an enforceable duty to remove an alien from Australia as soon as reasonably practicable.
48 The above formulation with its focus upon what is 'practicable' rather than the reasons why the alien as a detainee is not cooperating is inconsistent with the notion that the constitutional limit is exceeded unless the failure to cooperate can be shown to be part of a deliberate strategy of preventing removal from Australia. Later in their reasons, in dealing with the application of the constitutional limitation to the circumstances of the case, the High Court stated (at [61]):
The notions of the practicability and the foreseeability of removal embedded in the expression of the constitutional limitation accommodate 'the real world difficulties that attach to such removal'. The real world context also entails that proof of a real prospect must involve more than demonstration of a mere un-foreclosed possibility.
(footnote omitted)
49 The quoted reference to 'real world difficulties' is from WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 at [59] (French J). Significantly, the quote is from the following full sentence in WAIS:
In my opinion, absent the applicant's own reservations and conditions on his removal from Australia, he has not demonstrated that there would not be a real likelihood of his removal from Australia in the reasonably foreseeable future, assessed in the light of the real world difficulties that attach to such removal.
50 Therefore, it appears that the real world difficulties to which the High Court is making reference do not include the detainee's own reservations about being removed to a particular place.
51 Incidentally, as further explained below, it is not necessary or appropriate to consider the extent to which other aspects of the reasoning in WAIS (and cases which considered that reasoning) may assist. WAIS was a case decided at a time when the prevailing view was that, as a matter of statutory construction, there was an implied limitation on the detention power in terms which bore some similarities to the formulation of the constitutional limitation as expressed in NZYQ. However, its source in statutory construction meant that it had a different rationale. The decision in WAIS also concerned a claim that there had been a request for voluntary removal under s 198(1) of the Migration Act that had not been acted upon by officers of the Department. For both those reasons, its relevance to determining the issue posed by the present case must be viewed with circumspection.
52 Finally, as is apparent from the reasons given in NZYQ at [58] for rejecting a different formulation of the constitutional limitation, the High Court was concerned to ensure that the formulation of the constitutional limitation did not 'uncouple the limitation from its underlying constitutional justification'. That justification was to be found in the objectively determined purpose that was being carried into effect by the ongoing detention. In constitutional terms, the detention of an alien does not lose the objectively determined purpose of removing the alien from Australia if the alien is choosing not to cooperate in achieving that purpose. In such circumstances, removal of the person remains 'practicable' in the foreseeable future.
53 Respectfully, the principle that was found by Kennett J to emerge from Plaintiff M47 is not a principle that is supported by the reasoning in NZYQ as the justification for the constitutional limitation on detention. That limitation is concerned with the objective purpose served by the ongoing detention. Where ongoing detention is to arrange removal from Australia as soon as practicable, that lawful purpose is served for so long as there is a practicable way that the person may be removed, even if it requires cooperation from the detainee for it to be achieved. Practicability focuses upon whether something is able to be done. Where a person lacks the capacity to cooperate then removal is no longer practicable. However, the practicability of removal is not altered by the subjective state of mind of the person being detained. Nor is it altered by an unwillingness on the part of the detainee to do that which is able to be done.
54 Further, in referring to Plaintiff M47 in the footnoted passage quoted above, the High Court did not use language that suggested that any significance was being given to the subjective reasons of the detainee for not cooperating, particularly whether or not the detainee might be said to have been acting in order to frustrate their removal or engineer their own release. Rather, the description was put in objective terms to describe the consequence of conduct of the detainee 'having contributed to the frustration of the pursuit of lines of inquiry'. The word 'frustration' was used to describe the consequence of the detainee's conduct not the reason for it. As explained below, regard to the relevant passages in Plaintiff M47 (as footnoted in NZYQ) confirms that conclusion.
55 The cited passages from the reasons of Kiefel CJ, Keane, Nettle and Edelman JJ in Plaintiff M47 (at [30]-[33]) are as follows:
In the Department's dealings with the plaintiff, he has adopted a posture that involves, at best, non-cooperation and, at worst, deliberate obfuscation and falsehood. No good reason has been advanced for the adoption of this posture. For an unlawful non-citizen seeking entry into Australia, matters relating to his identity cannot sensibly be thought to be private matters of legitimate concern only to him. Further, it was not suggested that the plaintiff's inconsistent accounts of his personal background and his refusal to cooperate with the authorities are due to any medical condition or mental illness on his part. The possibility that the inconsistencies in the plaintiff's accounts of his origins might be explicable by difficulties of that kind was explicitly raised with senior counsel for the plaintiff before the special case was referred to the Full Court, and no suggestion to that effect has subsequently been made on the plaintiff's behalf.
Because the plaintiff has contributed to the frustration of lines of enquiry as to his identity and nationality, what might be established about his identity and nationality if he were to assist the Department in its enquiries cannot be known. It certainly cannot be inferred that genuine assistance from the plaintiff would not be helpful. As the Algerian Embassy stated, information as to the plaintiff's true name and place and date of birth, the true names and dates of birth of his parents, and details of his residences, if any, in Algeria, would be valuable in making progress to establish the plaintiff's identity and nationality.
Such information has not been forthcoming from the plaintiff, and the Court has been given no good reason to regard the plaintiff as incapable of giving a factual and verifiable account of those matters should he choose to do so. Indeed, the plaintiff seeks to take advantage of difficulties to which he has contributed to contend that enquiries as to his identity and country of origin have no prospect of success.
In this regard, the plaintiff submitted that his own statements that he has no knowledge as to his parentage or family are manifestly unreliable, going so far as to argue that without independently verifiable material capable of substantiating his identity, there is no real possibility, prospect or likelihood of the defendants identifying any country to which he could be returned, and no real possibility, prospect or likelihood of any new information coming to light. This is not an attractive argument.
(emphasis added, footnote omitted)
56 The reference in the first quoted paragraph ([30]) to a lack of any good reason for the posture of the plaintiff must be understood in the context of the subsequent reference to the lack of any medical condition or medical illness as the reason for his failure to cooperate. Significantly, the reference is then followed by the unqualified characterisation of the plaintiff's conduct as having contributed to the frustration of lines of inquiry (without reference to the reasons for his conduct). Finally, and most significantly, there is the emphasised passage in the third quoted paragraph ([32]) to the Court having been given 'no good reason' to regard the plaintiff as 'incapable' of giving an account 'should he choose to do so'. The terminology is significant and appears to be chosen to reflect the focus upon mental capacity. Its focus upon whether there was good reason for being incapable of cooperating rather than simply upon whether there was good reason for the plaintiff's failure to cooperate stands against any conclusion that there was implicit recognition of a principle of the kind described by Kennett J in AZC20.
57 Therefore, it was the deliberateness of the plaintiff's conduct that meant that the Court in Plaintiff M47 could not infer (as it was invited to do) that there was no real likelihood or prospect of removal in the reasonably foreseeable future and therefore no foundation for the application to reopen the constitutional holding in Al-Kateb. In particular, in Plaintiff M47 it was the lack of any evidence to show that the plaintiff was unable to provide the information (whether by reason of his medical condition or otherwise) that meant that the inference could not be drawn. It follows, in my respectful view, that the further principle identified by Kennett J in AZC20 is not supported by the reasoning as quoted above.
58 Regard to the separately cited passage from the reasons of Bell, Gageler and Gordon JJ in Plaintiff M47 (at [47]) reveals a similar approach. It was in the following terms:
The procedural history, the questions of law reserved for the opinion of the Full Court and the facts are set out in the joint reasons of Kiefel CJ, Keane, Nettle and Edelman JJ and need not be repeated. As their Honours observe, the possibility of the existence of a medical explanation for the inconsistent accounts given by the plaintiff of his history was raised with his senior counsel before the special case was referred to the Full Court. There is nothing in the special case to suggest that the plaintiff suffers from a psychiatric or other medical condition which would affect his capacity to give a coherent, factual account of his background including the reasons for giving inconsistent accounts in the past. We agree with their Honours' reasons for the conclusion that the plaintiff has deliberately failed to assist the defendants in their attempts to establish his true identity.
(footnote omitted)
59 Their Honours reasoned further that it was within the power of the plaintiff to cooperate and in the absence of his cooperation it cannot be known whether his identity can be established 'nor can the Court essay any conclusion as to the prospect or likelihood of his removal from Australia'.
60 Therefore, properly understood, the reasoning in Plaintiff M47 is to the effect that unless there is an inability to cooperate (for medical reasons or a lack of knowledge), in the absence of cooperation as to matters relating to removal it cannot be concluded that there is no real prospect of the person's removal from Australia becoming practicable in the reasonably foreseeable future.
61 When it comes to the scope of the constitutional limitation, there is a further difficulty with any approach that involves a consideration of the merits or reasonableness of the reasons why a person who has been detained under the provisions of the Migration Act might seek to justify their failure to cooperate in their removal from Australia. The Act has detailed provisions as to the circumstances in which permission may be granted by means of a visa for a person to be able to remain in Australia. They include the circumstances in which a person may be allowed to seek protection in accordance with Australia's international obligations. A person who wishes to seek that permission may do so and, whilst those lawful applications (and any review processes) are pending the person may not be removed without their agreement. Once the pursuit of those possibilities has been concluded, as it has with the present applicant, then the only purpose of detention is to arrange removal - not to revisit claims that have been the subject of applications for permission to remain in Australia.
62 A constitutional limit upon detention is based upon the purpose of removal not being able to be carried into effect with the consequence that the lawful justification for detention comes to an end. If that limit operated in a manner that would allow a person to advance reasons why they should not be removed from Australia (or should not be removed to a particular place) then it would effect a purpose beyond that which justifies the limitation. It would allow the detained person to invoke matters which bear upon whether permission may be given for a person to remain in Australia as matters which bear upon whether the constitutional limit on lawful detention has been exceeded at a time when the purpose of detention (and therefore the purpose by which the constitutional lawfulness of the detention was to be adjudged) was to arrange removal of the person from Australia.
63 As to the applicant's protection claims, the position of the Commonwealth was that in circumstances where those claims had been heard and determined and refused, it was irrelevant to adduce evidence to seek to prove a protection claim on the merits. For reasons I have given, that submission must be accepted.
64 For those reasons, in determining whether there is a real prospect of a detainee's removal from Australia becoming practicable in the reasonably foreseeable future, there is to be regard to all 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.
65 It follows that the Commonwealth's submission that, in circumstances where there is no evidence that the applicant might be removed to another country, evaluation of the reality of the prospects of his removal from Australia in the foreseeable future depends upon assessing the prospects of his removal to Iran taking account of his ability or capacity to cooperate (even though he has demonstrated an unwillingness to cooperate), should be accepted.
66 For completeness, I note that the submissions for the Commonwealth placed reliance upon decisions in this Court that preceded the High Court's decision in NZYQ. Most were decided before the High Court's decision in Al-Kateb. In Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54, the Full Court (Black CJ, Sundberg and Weinberg JJ) found that on the proper construction of s 196(1) of the Migration Act the power to detain was subject to an implied limitation 'to circumstances where there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future': at [136]. Having reached that conclusion, their Honours added at [137]:
…we do not intend our observations to give any support to a contention that a person who has made a request in writing under s 198(1), might by their own act in frustrating the process of removal, make their continued detention unlawful. For the purposes of the implied limitation, if such a person were, for example, to refuse to sign a consent required by a country otherwise prepared to take him, that person would not (ordinarily at least) be held in circumstances where there was no reasonable likelihood of his removal.
67 Reliance was also placed upon reasoning in SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 295; (2003) 133 FCR 532, which concerned the application of the Full Court's reasoning in Al Masri to a person who claimed that the lawfulness of his detention had come to an end. The primary judge had found that the unwillingness of the person to return to Iraq without an assurance that he would no longer be at risk of persecution in that country constituted a material lack of cooperation so as to disentitle him to release in accordance with Al Masri. On appeal, there was no challenge to the legal proposition that a lack of cooperation would mean that the person was not within the implied limitation on the power to detain. Rather, it was claimed that on the facts as found by the primary judge, the person's attitude did not relevantly cause or contribute to the inability of the respondent to remove him to Iraq: at [15]. That contention was not upheld.
68 Reference has already been made to the decision of French J in WAIS. In that case, in finding that the power to detain had not been exceed on the facts, his Honour reasoned at [58]-[61] as follows:
The term 'as soon as reasonably practicable' in s 198 is an evaluative term which is to be assessed by reference to all the circumstances of the case. What is reasonable is to be determined, inter alia, by reference to the practical difficulties that may lie in the way of making arrangements for removal which involve the cooperation of other countries whether in respect of the particular applicant or generally in relation to the class of applicants of which he is a part. Provided arrangements are being sought generically or specifically by reference to the applicant with reasonable expedition it is difficult to see how delays beyond the control of the Minister and his officers can be taken into account in determining what period for removal falls outside the scope of the term 'as soon as reasonably practicable' in s 198.
… It is appropriate to have regard to the practical difficulties in the way of making removal arrangements in deciding what is 'the reasonably foreseeable future' on the Al Masri criteria. In my opinion, absent the applicant's own reservations and conditions on his removal from Australia, he has not demonstrated that there would not be a real likelihood of his removal from Australia in the reasonably foreseeable future, assessed in the light of the real world difficulties that attach to such removal.
… I do not accept the submission made by counsel for the applicant that the fact that the applicant withholds his consent to being removed to some specific country or makes that consent conditional does not have a bearing on the question of what is "as soon as reasonably practicable" under s 198(1) or (6). I would go so far as to say the written request for removal contemplated by s 198(1) which is so conditioned is not a request of the kind contemplated by that section. In particular, it is not open to the applicant to argue that he can condition or limit his request for removal by excluding the possibility of removal to the country from which he had fled. The statutory scheme contains no such implication even on the Al Masri approach. The lawfulness of his continuing detention cannot be defined by reference to issues relating to whether he has a well-founded fear of persecution if returned to Iraq, that having already been the subject of the administrative and judicial review process that extended from the end of 1999 until September 2001.
There is nothing in the terms of s 198(1) to suggest that a detainee's request to be removed from Australia may be expressed to be subject to conditions including conditions which exclude removal to specified countries and yet still attract the duty to remove him which is created by that section. In particular there is no implication that the applicant requesting removal may reasonably withhold his consent to be removed to a particular country where that consent would be necessary to effect that removal. A detainee cannot, in effect, create a circumstance which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or cooperation to a particular avenue for removal and specifically to removal to the country from which he came. No issue as to the reasonableness of his withholding of consent thus arising, there is no requirement for any further evidence to be considered on that issue as was foreshadowed by counsel for the applicant.
(original emphasis)
69 Reliance was also placed upon the reasoning of Abraham J in DMH20 v Minister for Home Affairs [2022] FCA 1054 (upheld on appeal in DMH20 v Minister for Home Affairs [2023] FCAFC 31; (2023) 296 FCR 256) in which an application was made for a declaration that it was not reasonably practicable to remove the applicant from Australia in the reasonably foreseeable future for the purpose of founding an application that would seek to challenge the correctness of Al-Kateb before the High Court. In declining to grant the declaration, Abraham J found at [75]:
The applicant does not have a legal entitlement to remain in Australia, and has exhausted his legal avenues to do so. He nonetheless chooses to frustrate the operation of the Migration Act because he does not wish to return to Malta. That is a position of non-cooperation. This is not a case, like Al-Kateb, in which the applicant is stateless. This is not a case where the applicant's refusal to sign the travel documents to facilitate his return to Malta proceeds from an accepted well-founded fear of persecution or real risk of significant harm. Although the applicant does rely on what he says are his fears of harm if he is removed to Malta, his protection application was not established, and the appeals were dismissed. This application is not an opportunity for the applicant to reopen those claims. In this context, the applicant's continued failure to cooperate is a choice.
70 Notwithstanding their consideration of the significance of a lack of cooperation in removal (and the reasons for that lack of cooperation), I am not persuaded that the above authorities are of assistance in resolving the present application. There is force in the submission for the applicant that the decision in NZYQ stands upon its own footing, concerned as it is with a constitutional limit upon power, not a view as to the proper construction of provisions of the Migration Act authorising detention. Although there are similarities in the formulation of the test in these previous authorities, there are differences. Most importantly, the Full Court's formulation in Al Masri invites a factual inquiry as to whether there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future. It is concerned with an assessment of future likelihoods or probabilities as to whether removal will happen, an approach that was expressly rejected as a formulation of the test for constitutional validity in NZYQ. Similarly, the declaration that was sought in DMH20 was that 'it will not become reasonably practicable to remove the applicant, and there is no real likelihood or prospect of removal of the applicant, from Australia in the reasonably foreseeable future' (at [1]). Instead, the reasoning in NZYQ focusses upon real world prospects of what might become practicable in the reasonably foreseeable future. The High Court did not reinvigorate past authorities of this Court as capturing the correct approach. The reasoning on NZYQ stands on its own foundation of reasoning. Accordingly, I have not had regard to the earlier authorities in reaching my conclusions as to Issue (1).
71 Given the conclusions I have reached as to Issue (1), it follows that it is not necessary to deal with Issues (2) and (3). However, as they give rise to matters requiring factual findings that depend upon assessment of the credit of the applicant that may be relevant if the matter goes further, I will address them.