Person cannot be removed until protection claims assessed in procedurally fair way

At [46] of SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 the Court recited the basic principle:

The Federal Court concluded in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (‘SZQRB’) at 544-546 [200] and 546 [204] that the power of removal in s 198 could not be exercised whilst a person in detention had made claims for protection (including by way of non-refoulement) until those claims had been assessed by a process which accorded an applicant procedural fairness and which addressed the correct questions according to Australian law.

This principle arises from Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319.  The assessment of non-refoulement claims is the second step of the two-step process of the Minister deciding (step one) whether to exercise certain non-compellable powers (step two) such as lifting the bar (s 48A) or granting a visa (s 195A).  Procedural fairness is required in the exercise of step two: M61.

The consequence is that detention of a person who has made non-refoulement claims, but such claims are not being considered, or being considered without procedural fairness, may be unlawful: see SZSSJ [86].