An Iranian man says he fears harm if sent home. The government says it’s not enough
The government says it is legal to keep someone locked in immigration detention if they resist deportation to a country where they fear persecution, in its submission to a pivotal High Court challenge.
In a sequel to last year’s landmark High Court decision that outlawed indefinite detention, the government will argue it isn’t against the Constitution to hold people if they refuse to co-operate with moves to deport them. The outcome of the case could bring the release of dozens more detainees into the community.
Home Affairs Minister Clare O’Neil has foreshadowed years of legal upheaval following the High Court’s NZYQ decision.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 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.”
It follows a week in which Labor suffered a humiliating defeat after the Senate blocked the passage of legislation that included a measure to ensure people who do not co-operate with moves to deport them face criminal punishment.
November’s NZYQ ruling over the case of a stateless Rohingya man triggered the release of 152 people, including people who had served sentences for murder and rape, found a person could be held in detention only if their deportation was reasonably foreseeable. Otherwise, it was a form of punishment.
In the current case, given the pseudonym ASF17 and scheduled to be heard on April 17, the government argues it is legal to keep someone in detention if the only thing preventing their removal is a lack of co-operation.
Documents lodged on behalf of ASF17, a bisexual Iranian man, say his fear of persecution if returned to Iran is enough to warrant his release.
“The Commonwealth accepts that sexual intercourse between males is illegal in Iran and can attract the death penalty,” his lawyers’ submission says.
The government argues someone’s fear of harm is relevant only if it meets the standards set by Australia’s existing laws relating to its obligations not to return people to countries where they face danger, not merely their subjective view of what will happen.
Its submission quotes from the Federal Court judge who described ASF17 as “prepared to concoct and adhere for a considerable period to a false version of events for the purpose of assisting his claim to protection”.
Home Affairs Minister Clare O’Neil foreshadowed earlier this month that Australia was facing years of legal upheaval over immigration detention as a result of NZYQ, under which people who had served sentences for murder, rape and people smuggling were among those who had been released into the community under strict conditions.
On Tuesday, Immigration Minister Andrew Giles introduced a bill into parliament that had three main effects: threatening jail time for people who don’t co-operate with moves to deport them; revisiting protection claims against people who have fled perilous countries; and banning entire nationalities from travelling to Australia if their government doesn’t accept the involuntary return of citizens.
The Coalition, the Greens and other members of the crossbench teamed up defer the bill to a lengthy Senate inquiry to prevent the government from ramming it through parliament in less than two days.
The bill would help deport people affected by the approaching High Court challenge. Earlier this week, O’Neil refused to comment on a link between the legislation and an upcoming case, before saying: “I think the ASF17 case does show that it is important that we have these powers. [But] it’s not the only reason why we’re doing this.”
Labor backbenchers have also raised fears of overreach by banning entire nationalities from travelling to Australia. One MP who declined to be named said: “Don’t stop families seeing each other over Christmas because they’re from a country run by a delinquent fringe regime.”
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