Gageler CJ
Gordon J
Steward J
Gleeson J
Jagot J
Beech-Jones J
8.
administrative process necessary to facilitate their removal from Australia is to be regarded as an objective fact which can suffice to negate the existence of a real prospect of removal becoming practicable in the reasonably foreseeable future no matter what the reason for the non-cooperation.
27 The second ground of challenge to the primary judge's process of reasoning was in the alternative to, and was narrower than, the first ground. Drawing on language used in Plaintiff M47/2018 v Minister for Home Affairs,[1] this ground was ultimately formulated in terms that non-cooperation can operate to negate a real prospect of removal becoming practicable in the reasonably foreseeable future if the detainee has a "good reason" for not cooperating. It was argued for ASF17 that a genuine subjective fear of harm can amount to a "good reason", as can any other reason which does not involve the detainee acting deliberately to frustrate removal.
28 AZC20 advanced a variation of the second of those grounds. AZC20 emphasised that the question whether there is a real prospect of removal becoming practicable in the reasonably foreseeable future was said in NZYQ to be one of constitutional fact.[2] In forming the evaluative judgment necessary to decide that question, AZC20 argued, non-cooperation on the part of the detainee may be a relevant factor but cannot be determinative. It was said that non-cooperation covers a spectrum of conduct. The relevance of the reason a detainee may have for not cooperating in doing something which would facilitate their removal to the prospect of removal becoming practicable in the reasonably foreseeable future, according to AZC20, is that the quality of the reason for the detainee being uncooperative in the past and in the present is probative of the likelihood or unlikelihood of the detainee remaining uncooperative in the reasonably foreseeable future. A "good reason" for non-cooperation, according to AZC20, translates to a reason sufficient to justify the conclusion of fact that the detainee is likely to continue to have that reason and so to continue to be uncooperative into the reasonably foreseeable future.
29 The Solicitor-General of the Commonwealth rejected the notion that the evaluative judgment necessary to decide the question of constitutional fact can be formed without regard to the constitutional principle from which the question
