The High Court has ruled against a detainee who was petitioning to remain in Australia in a landmark judgement.
The Albanese government has dodged a second round of public outcry after the seven High Court justices delivered their verdict on Friday in the case of an Iranian detainee who is refusing to assist in his deportation.
The man, known as ASF17, identifies as bisexual and refuses to return to Iran because he fears he will face the death penalty. Iran has a longstanding policy of not accepting involuntary returnees.
There was a unanimous verdict that detention is lawful in scenarios where deportation is only hindered by a detainee who refuses to cooperate.
The judgement noted the government would have been successful in deporting ASF17 ‘were the detainee to decide to cooperate in the undertaking of administrative processes necessary to facilitate their removal’.
Amid concerns about the wide reaching implications of the judgement, Labor had attempted to push far-reaching new migration laws though Parliament in March, but was blocked in the Senate by the Coalition, Greens and crossbenchers.
Under the proposed legislation, tourists from nations which do not accept forcibly returned citizens could be banned from travelling to Australia.
Tourists from at least five countries could be banned from travelling to Australia if Labor’s tough proposed migration laws pass Parliament. The legislation was created ahead of the potential release of 170 more detainees
It comes on the back of the controversial NZYQ decision from November, which saw 154 detainees – including murderers and rapists – released into the community.
As of February 2024, the AFP had received at least 27 reports of crimes committed by some of those released detainees.
In late April, 73-year-old Ninette Simons was beaten until she was unconscious at Girrawheen in Perth’s north. Released detainee Majid Jamshidi Doukoshkan was charged over the incident.
Jamshidi Doukoshkan and two other attackers allegedly beat 73-year-old Ninette Simons (above) unconscious at Girrawheen in Perth’s north on April 16
Who is ASF17?
ASF17 has been fighting deportation efforts since late 2018 after he arrived by boat more than a decade ago.
ASF17’s lawyers had argued the government detained him in a ‘punitive’ manner and that the onus was on the Commonwealth to ‘show a real prospect of removal from Australia becoming practicable in the reasonably foreseeable future’.
His counsel Lisa De Ferrari SC, told the High Court her client had repeatedly asked federal officials to try to find another country to take him in.
She cited testimony from ASF17 where he said: ‘Even take me back to where you picked me up in the high seas,’ and: ‘Even take me to Gaza … I’d have a better chance there of not being killed [than if I was sent to Iran.]’
But the Commonwealth argued that is a moot point because Iran is the only possible country he can be deported to.
It claims his ongoing detention is a legally allowable consequence of his refusal to cooperate with efforts to send him back to Iran.
Iran also has a policy of refusing to accept people who are forcibly returned.
The government’s lawyers argue this matter is entirely separate from the NZYQ matter, in which detainees had no possible way of returning to their home country.
In this case – and for the 170 detainees in a similar position – the only barrier to their deportation is their own unwillingness to assist, they said.
Recently released immigration detainee Majid Jamshidi Doukoshkan (above), who is accused of bashing an elderly woman in her own home, has been in and out of court this year
Immigration detention laws cause headache for government
As part of the government’s efforts to stop detainees being released, they proposed introducing a jail sentence of up to five years for failed asylum seekers who refuse to cooperate with their deportation.
There was also a clause which would allow the government to ban any and all visitors from designated countries which do not facilitate unwilling deportations.
That could result in citizens of Iran, Iraq, Zimbabwe, Russia and South Sudan being banned from travelling to Australia altogether, even for a holiday – although some exceptions would apply.
But the Coalition teamed up with the Greens to block Labor’s bill from passing the Senate swiftly.
Instead, it was referred to a formal Senate inquiry, which delivered its findings on Tuesday.
While the committee recommended the bill pass the Senate, the Coalition have made several amendments in order to shield from ‘potential unintended consequences’.
Immigration Minister Andrew Giles is keen to avoid another NZYQ High Court fiasco
It comes on the back of the controversial NZYQ decision from November, which saw 154 detainees released into the community
These amendments include a requirement that the minister inform parliament if they are going to exercise the power to issue a removal pathway direction to a person.
The Greens want the bill rejected in full, arguing it is ‘divisive and cruel’.
Human rights lawyers have described it as ‘the pure definition of discrimination,’ and ‘Trumpian’, while others have questioned whether Labor would have ever supported the Coalition if roles were reversed.
The proposal caused a diplomatic headache for the government.
A spokesperson for the Russian Embassy in Canberra told Daily Mail Australia the inclusion of Russia in this proposed legislation ‘is quite far-fetched’.
‘We are struggling to remember a single occasion where the Australian Government expressed concerns about the removal of a Russian national not having a valid reason to remain or asked us for cooperation with such removal,’ the spokesperson fumed.
The Russian embassy was not approached or briefed by the Australian government about the legislation or its potential effects, the spokesman added.
When contacted by Daily Mail Australia, the Iraqi embassy in Canberra appeared caught off-guard, asking for information about the proposal.
Embattled Immigration Minister Andrew Giles said of the proposal: ‘What we’re doing with this piece of legislation, this important piece of legislation, is to fill a very significant loophole.
‘[It is] a loophole that a small cohort of people who have no basis upon which to remain in Australia who are refusing to co-operate with efforts to effect their removal.
‘Importantly… these people are not refugees.’
Human rights lawyers have described the Albanese government’s proposed legislation as ‘the pure definition of discrimination,’ and ‘Trumpian’, while others have questioned whether Labor would have ever supported the Coalition if roles were reversed
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