TRANSCRIPT
The High Court has dismissed the claims of a 37 year old Iranian man who says he is being unlawfully detained and is refusing deportation back to Iran.
The man, known to the courts and the public as ASF17, is bisexual, Christian and Faili Kurd and says he cannot return to Iran.
Additionally, the government is unable to deport the man due to a longstanding policy in Iran whereby the country will not accept involuntary deportations into the country.
Now the High Court has found that his refusal to cooperate with deportation orders means the government has the right to continue his detention.
Immigration Minister Andrew Giles says the ruling is a win for the government.
"Now, today, the High Court has handed down a unanimous decision, in which all members of the court had decided that a non-citizen who has no right to stay in this country and who is not cooperating with their removal can remain in immigration detention until such time as we remove them. The government welcomes this decision of the court, because we've always held this view."
The ruling comes three weeks after lawyers for ASF17 argued that his detention was in breach of the constitution as there was no foreseeable way it would end.
He says if he returns to Iran he faces persecution for his religious identity, his sexuality and for speaking out against the government in support of women's rights.
His lawyers argued that in order for it to end, one of three things would have to happen: Australian Government policy would have to change, Iranian government policy would have to change, or ASF17 would have to change his mind.
They argued that the chance of any of that happening are almost zero, therefore the chance of his deportation happening is low.
Therefore lawyers argued that the detention was considered punitive, which is against the constitution.
Greens immigration spokesperson David Shoebridge says the decision is inhumane.
"This High Court decision is a real blow for those of us who are hoping for a more humane system for dealing with people who seek asylum continue to have a genuine fear of persecution and are held indefinitely in immigration detention. It's a tough day for the individuals and the family involved. but it's also a tough day for a sense of decency in our immigration detention and asylum determination system. "
The finding determines that indefinite immigration detention is lawful if a non-citizen's lack of cooperation has frustrated efforts to deport them.
The judges ruled that the man, ASF17, could be removed to Iran if he cooperated and therefore states that his detention is of his own volition.
Human rights lawyer and Executive Director of Refugee Legal David Manne [[man]] says the ruling raises concerns about who is considered to be in genuine danger if they are deported.
"The real concern remains that the people in that situation, the fundamental reality is that for many of those people - and it could well be, the predictions have been between 150 and 200 people who remain indefinitely detained in Australia in those circumstances - the fundamental concern remains about the ongoing deprivation of liberty to them, but also for some of those people, real concerns around whether or not they have genuine fears of being persecuted in their home country which remain to be reassessed. "
This case was an extension of the NZYQ case last year, which found a cohort of people were not being detained for the purpose of deportation, because there was no foreseeable prospect of deportation.
The government faced a wave of criticism from the opposition following the outcome of the NZYQ case, which saw around 150 detainees released into the community.
The new ruling follows a parliamentary committee's recommendations earlier this week [[08/05]] that the government pass its controversial bill threatening non-citizens with prison if they don't cooperate with their deportation.
Despite overwhelming evidence and hundreds of submissions against the deportation bill, Anthony Albanese is urging the senate to push ahead with it.
"Well, my message to the Senate is get on with it. My message is that my government has had to deal with decisions of the court."
The bill contains mandatory minimum sentences of one year in prison for non-citizens who refuse to comply with a ministerial direction to facilitate their own deportation.
It also invokes powers to blacklist whole countries from new visa applications if they refuse to accept involuntary removals, as in the case of Iran.
Mr Manne says the deportation bill is dangerous and cruel.
"It is so fundamentally flawed that it just cannot be fixed and should be totally rejected by the Senate, I mean that's the first point. But in light of this ruling, which is clearly related to the deportation bill, directly related, it adds to the case for abandoning this bill."
Immigration Minister Andrew Giles says the government will be putting forward the proposed bill.
"It puts in place what the High Court has really talked about today, an obligation on an individual who has no right to remain in this country to cooperate with their removal. That is a hole that Mr. Dutton and his team should be working with us to close. It's a gap that has remained open for too long. It's a commonsense solution to a real problem. "
But David Shoebridge also says the ruling undermines the Labor government's proposed legislation.
"With the High Court now permitting the Albanese government to continue to hold people in indefinite detention, subject to some limitations. There is now no basis at all for labor to press ahead with their crawl additional powers to criminalise people like this, and to create these new godlike powers for the Immigration Minister."
Federal Greens leader Adam Bandt agrees there is now no reason for Labor to proceed with the bill.
"Labor's Bill breached basic principles of human decency and would have put people at risk of persecution and death. Now there is no need, clearly for to proceed. There never was Labor should not, should not proceed with it."
David Manne says the deportation bill should be withdrawn.
"It is fundamentally at odds with our very obligations and duties to protect people from future harm, and seeking asylum is a right, not a crime."
