An Iranian asylum seeker will remain in immigration detention after the High Court dismissed his appeal for release.
Federal authorities have tried to deport the man, known as ‘ASF17’, since 2018. ASF17 refused to cooperate with these efforts, arguing he would face persecution in his home country of Iran because he’s bisexual and a Christian.
The ASF17 case followed a ruling in the High Court last year that found indefinite detention of immigration detainees was unlawful. The court found ASF17 was not covered by this ruling.
Here’s why.
Background
ASF17 arrived in Australia in 2013 at the age of 27. He came without a visa, so was defined by Australian immigration law as an “unlawful non-citizen”.
He applied for asylum and was briefly granted a bridging visa — a document that allows a person to lawfully stay in Australia while their immigration status is determined. When that visa lapsed, he entered immigration detention, where he’s been ever since.
ASF17 then applied for a type of protection visa to stay in Australia. He said he had converted to Christianity, which is forbidden in Iran.
This visa application was rejected, and a series of appeals failed. This meant immigration officers were required to “remove [him] from Australia as soon as reasonably practicable”.
However, ASF17 refused to comply with deportation orders. He argued his religious beliefs and identity as a Kurd, an ethnic minority in Iran, would lead to persecution.
Because ASF17 would not return to Iran, did not have a valid Australian visa, and did not suggest a third country he could be removed to, his case was at an “impasse”.
Legal case
Last year, the High Court ruled that the indefinite detention of an immigration detainee, ‘NZYQ’, was unlawful. It led to the release of about 150 detainees who had “no reasonable prospect” of being deported.
ASF17 then launched a new appeal on the grounds that his detention was also unlawful. He argued he could not return to Iran because he would face persecution over his bisexuality. Men in Iran face the death penalty for same-sex relationships.
The court found he had not mentioned this in any previous applications.
Decision
The court ultimately found the NZYQ decision did not apply in ASF17’s case.
While the previous case related to non-citizens who could not be deported, it found ASF17 was an Iranian citizen refusing to cooperate with immigration orders to leave the country.
Therefore, it ruled his continued detention was not illegal.
The majority of judges ruled: “He has decided not to cooperate. He can change his mind. He chooses not to do so.”
The High Court did not accept the Iranian asylum seeker’s argument that he had a “genuine subjective fear of harm in Iran”. It agreed with a lower court that ruled he’d refused to cooperate because “he wanted to remain in Australia,” not because he faces persecution elsewhere.
No other country has been identified as suitable for ASF17’s deportation other than Iran. However, he has repeatedly said he would agree to be sent to any country other than Iran.
Government response
Immigration Minister Andrew Giles welcomed the Government’s win in this case.
In a statement, he said the court “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”.
Opposition
Shadow Home Affairs Minister James Paterson said the High Court made a “sensible” decision to not release ASF17 from immigration detention.
“It would have sent the message to a would-be citizen of Australia that all you have to do is fail to cooperate and you’ll get to stay,” Paterson said.
