 The respondents argued that the provisions required that unlawful non-citizens be detained until their removal, and that the purpose of removal, on which the detention was founded, did not cease to exist just because it was not practicable in the foreseeable future to carry out that purpose. They made what was referred to as "the 'never say never' proposition", that although securing a person's removal or deportation from Australia may be difficult, and "often it takes years of diplomatic negotiation before a country is prepared to accept someone ... it is very hard to imagine a case where the purpose of removal or deportation is one that can never occur." Although the respondents did not challenge the finding of fact in the Federal Court that there was no real possibility of Al-Kateb's removal in the foreseeable future, they argued that the test applied to reach that decision "fails to take into account ... the difficulties and the fact that things can change."
