Gageler CJ
Gordon J
Steward J
Gleeson J
Jagot J
Beech-Jones J
11.
of removal imposed by those provisions that can arise through the operation of s 197C(3) of the Act.
36 Section 197C(3) of the Act operates to prevent s 198(1) and (6) from requiring or authorising involuntary removal of an alien to a country if the alien has made a valid application for a protection visa which has resulted in an extant "protection finding" in respect of that country. A "protection finding" includes a finding by the Minister administering the Act that the alien meets the criterion for the grant of a protection visa in s 36(2)(a) (as a person in respect of whom Australia has protection obligations because the person is a refugee) or s 36(2)(aa) (as a person in respect of whom Australia has complementary protection obligations because of substantial grounds for believing that there is a real risk that the person will suffer significant harm[1] as a necessary and foreseeable consequence of being removed from Australia to a receiving country) even if the alien has been refused or denied a protection visa.[2]
37 The operation of s 197C can be illustrated by reference to the circumstances of ASF17. Section 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.
38 Section 197C(1) combines with s 197C(2) to make clear that, in the absence of an extant protection finding in respect of a country which engages the operation of s 197C(3) of the Act, the power and duty to remove an alien detainee under s 198(1) or s 198(6) of the Act is not affected by any non-refoulement obligations Australia may or may be claimed to have in respect of that alien. The statutory consequence is 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 irrespective of whether that claim might be found on
