Gageler CJ
Gordon J
Steward J
Gleeson J
Jagot J
Beech-Jones J
6.
found by his wife in bed with another man and the alleged consequences of that event".[1]
21 In the result, ASF17 advanced no basis for doubting the primary judge's summation that ASF17 "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".[2]
22 Following on from that summation and bearing centrally on whether there is a real prospect of removal to Iran becoming practicable in the reasonably foreseeable future, the primary judge found that, if ASF17 cooperated by writing a letter to Iranian authorities and by providing such other information as may be requested by Iranian authorities, the Commonwealth would be able to obtain travel documents for him to travel to Iran.[3] ASF17 has not challenged that finding. His counsel sought to argue on the appeal that the Commonwealth had not established that he could have been removed to Iran even if he had travel documents. But that argument was not open to him on the appeal given the basis upon which issues of fact had been joined before the primary judge. As the primary judge correctly recorded, ASF17 accepted before the primary judge "that the evidence adduced by the Commonwealth establishes that, with his cooperation, he could be removed to Iran".[4]
23 Finally, the primary judge found that there is no country other than Iran to which it may be possible to effect ASF17's removal.[5] Despite that finding not being challenged in ASF17's grounds of appeal, his counsel argued on the appeal that the evidence before the primary judge was insufficient to support such a global conclusion. The thrust of the argument was to the effect that adherence by officers of the Department to the third country removal policy had so "straitjacketed" investigation of whether there is a country other than Iran to which ASF17 might be removed as to make impossible a conclusion that there is no such country. The Solicitor-General of the Commonwealth correctly noted in response to the
