Australia’s highest court will hear a case to determine the freedom of up to 200 people locked in immigration detention who the government says are refusing to cooperate with moves to deport them.
At the centre of the case is a bisexual Iranian man, given the court pseudonym ASF17, who the government has determined is not owed protection but who regardless fears persecution if he is returned to his birth country.
Following a failed Federal Court bid to be released, ASF17 is arguing before the High Court he should be freed along with 152 others who were let out of immigration detention following a separate, landmark High Court judgment that ruled indefinite detention was punitive and therefore unlawful.
But the government argues his continuing detention is not punitive, as his failure to cooperate with authorities is preventing efforts to remove him from the country.
Immigration Minister Andrew Giles says the government’s deportation laws and its safeguards are “entirely appropriate”.Credit: Alex Ellinghausen
“Such detention cannot properly be characterised as punitive because the alien could bring it to an end at any time,” court documents submitted by the government and published by the High Court say.
“That is true even if the alien’s non-co-operation is the result of a genuine subjective fear of harm in the place to which the alien is to be taken.”
Home Affairs officials told a Senate committee on Monday between 150 and 200 people in detention were refusing to cooperate with the government’s efforts to deport them.
Immigration Minister Andrew Giles has introduced controversial legislation to parliament that threatens people with jail time if they resist their deportation. The proposed law will act as a backstop if the government loses the case.
The freedom of multiple other Iranian men who have been released from detention recently also rests on this current challenge, as the government alleges they have also refused to cooperate with moves to deport them.
One of them is Ned Kelly Emeralds, whose legal team at the Human Rights Law Centre is seeking to join the current proceeding, given the potential effects the case will have on his ongoing freedom.
The centre’s acting legal director Sanmati Verma told a press conference outside the court this morning her client had been detained for over 10 years before his November release.
“If a person cannot be removed from Australia, indefinite detention is not the answer,” she said.