Gageler CJ
Gordon J
Edelman J
Steward J
Gleeson J
Jagot J
Beech-Jones J
22.
of fact to the level of satisfaction appropriate in a civil proceeding where individual liberty is in issue, the prospective and probabilistic nature of the fact in issue (that is, the fact of a real prospect of the plaintiff's removal from Australia becoming practicable in the reasonably foreseeable future) would have the potential to be confused were the standard of proof to be "on the balance of probabilities".[1]
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".[2] The real world context also entails that proof of a real prospect must involve more than demonstration of a mere un-foreclosed possibility.
The special case recorded the agreement of the parties as to the fact that the plaintiff had complied with requests for information made by officers of the Department and had otherwise assisted the Department with its inquiries. This was not a case of a person in immigration detention having contributed to the frustration of the pursuit of lines of inquiry by officers of the Department attempting to bring about the person's removal.[3] Nor was it a case where officers of the Department remained in the process of pursuing lines of inquiry based on circumstances peculiar to the person in detention.[4]
The special case further recorded the agreement of the parties as to two important facts as at 30 May 2023 (being the date when the original form of the special case was agreed). One was that the plaintiff could not then be removed from Australia. The other was that there was then no real prospect of the plaintiff being removed from Australia in the reasonably foreseeable future.
- ↑ See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282-283. Contra Sami v Minister for Home Affairs [2022] FCA 1513 at [157].
- ↑ WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 at [59].
- ↑ Compare Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285. See at 297 [30]–[33], 301–302 [47].
- ↑ Compare Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322. See at 334–335 [4], 368 [135].
