Government wins High Court deportation challenge
By Olivia Ireland and Angus Thompson
The government has successfully fended off a major legal challenge that would have released 200 more immigration detainees into the community.
The High Court has dismissed the claim by the bisexual Iranian man given the pseudonym ASF17, who launched a bid for release from immigration detention earlier this year, claiming he is being unlawfully held.
This was regarded as a legal sequel to last year’s landmark High Court ruling outlawing indefinite detention, which has so far seen 153 detainees freed.
The appeal attempts to resolve whether someone who refuses to cooperate with moves to deport them to their country of origin can continue to be detained, if their own actions are preventing the government from removing them in the near future.
The High Court in Canberra.Credit: Alex Ellinghausen
The Commonwealth successfully argued the Iranian man’s ongoing detention is legal because the detainee could “bring it to an end at any time” by agreeing to meet Iranian authorities for the necessary paperwork to return to Iran.
But his barrister, Lisa De Ferrari, SC, told the court last month the government had never tried to resettle him anywhere else and that her client did not oppose being removed to a country other than Iran.
“Even take me to Gaza,” De Ferrari quoted her client as saying in evidence aired in a previous Federal Court hearing. “I have a better chance there of not being killed than if I go back to Iran.”
His legal team said his fear of persecution as a bisexual if returned to Iran was enough to warrant his release.
But the government argued someone’s fear of harm is relevant only if it meets the standards set by Australia’s existing obligations not to return people to countries where they face danger, not merely their subjective view of what will happen.
As a backstop, Giles has introduced controversial legislation to parliament that threatens people with jail time if they resist deportation, enables him to revisit protection findings, and black bans entire nationalities if their countries don’t accept the involuntary return of citizens.
However, that bill is yet to pass parliament after the Senate deferred it to an inquiry, which led the Coalition to propose 17 amendments ahead of negotiations between the government and opposition.
Cut through the noise of federal politics with news, views and expert analysis. Subscribers can sign up to our weekly Inside Politics newsletter.