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Court rules detention can be justified when an individual is refusing to cooperate in their deportation.
Published On 10 May 2024
Australia’s High Court has dismissed a closely-watched bid by an Iranian asylum seeker demanding to be released from immigration detention because he feared being held indefinitely.
The man has been resisting deportation from Australia since 2018, arguing that he would be at risk because of his sexual orientation and religious beliefs.
Known only as ASF17, he took legal action after a ruling last November in favour of a detained Rohingya man that found detention with no reasonable prospect of release or deportation was illegal. The finding led to dozens of people being freed from immigration detention centres.
But on Friday, the High Court ruled unanimously that ASF17’s case was different, noting that his continued detention was the result of his decision not to cooperate in his deportation.
“ASF17 could be removed to Iran if he cooperated in the process of obtaining the requisite travel documents from Iranian authorities,” public broadcaster ABC reported the judges as saying. “He has decided not to cooperate. He has the capacity to change his mind. He chooses not to do so.”
They noted that the Australian government had assessed him not to be in need of protection.
The case was being closely followed by refugee advocacy groups and the government, with dozens more people likely to be freed if the court ruled in the Iranian’s favour.
Immigration Minister Andrew Giles welcomed the court’s decision, saying the government had “fought strongly” to defend its position in the case. Government lawyers had questioned the man’s claim to be at risk and argued that detention was justified when someone was not cooperating in their removal.
“We welcome today’s unanimous decision of the Court, which has found that individuals who are not cooperating with their own removal are able to remain in immigration detention until they are removed from Australia,” Giles said in a statement. “Community safety continues to be our highest priority, and we will continue to take all necessary steps to keep Australians as safe as possible.”
ASF17, who is now 37, arrived in Australia more than a decade ago on a small boat. He said he had fled Iran after his wife caught him having sex with a man.
Under Operation Sovereign Borders, people arriving by boat are detained in prison-like facilities, some of them offshore with no chance of ever being settled in Australia.
