29.
of removing the alien in the reasonably foreseeable future. In other words, the removal of the alien would be practicable (capable of being put into practice) only by a legal fiction which deems that they will "cooperate".
89 A further difficulty is the contortion of the concept of cooperation in this legal fiction. As the Solicitor-General of the Commonwealth rightly accepted, a conclusion that "cooperation" is required does not use the concept of "cooperate" in its common meaning of "to work or act together or jointly",[1] a meaning which implies reasonableness on the part of both parties. Rather, what appears to have been meant by "cooperate" is "subjugate": "to bring under complete control".[2]
The decision of Plaintiff M47/2018 v Minister for Home Affairs
90 The primary judge rationalised the legal fiction as a qualification to the reasoning of six members of this Court in NZYQ by reliance upon the decision of this Court in Plaintiff M47/2018 v Minister for Home Affairs ("Plaintiff M47/2018"),[3] a decision which was said to establish "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".[4] That proposition was not the subject of any argument in Plaintiff M47/2018. It was not part of the reasoning in the decision. Its correctness was not even assumed.[5] The decision in Plaintiff M47/2018 establishes only that a plaintiff who engages in deliberate obfuscation cannot be said to have no real prospect of being removed from Australia in the reasonably foreseeable future.
91 In Plaintiff M47/2018 the plaintiff had arrived in Australia on a Norwegian passport which he destroyed. He had previously identified himself to authorities in Denmark, the Netherlands, Iceland, Singapore and Germany by the use of various different names and various different dates of birth. He used another name again with Australian immigration authorities and provided various different versions of
- ↑ The Macquarie Dictionary, 3rd (Federation) ed (2001), vol 1 at 426, "cooperate", sense 1.
- ↑ The Macquarie Dictionary, 3rd (Federation) ed (2001), vol 2 at 1871, "subjugate", sense 1.
- ↑ (2019) 265 CLR 285.
- ↑ ASF17 v The Commonwealth [2024] FCA 7 at [60].
- ↑ See Felton v Mulligan (1971) 124 CLR 367 at 413; CSR Ltd v Eddy (2005) 226 CLR 1 at 11 [13]; Spence v Queensland (2019) 268 CLR 355 at 486–487 [294]; Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 at 346 [28].
