Wed Mar 20

The government is fighting a new High Court case on immigration detainees. What’s it about and what’s at stake?

Written by Anne Twomey, Professor emerita, University of Sydney

The government will be on tenterhooks again next month when the High Court of Australia hears another case that could lead to the release of a further cohort of people currently in immigration detention.

Given the ongoing political fallout of the previous controversial ^[1] High Court case, the outcome of this one will be closely watched.

So why is this new case so significant, and how does it differ from the last one?

What is the case about?

The case is called ASF17 v Commonwealth. It concerns an Iranian citizen ^[3] who has been held in immigration detention for ten years. He failed in his application for a protection visa and is therefore subject to an obligation that he be deported as soon as reasonably practicable.

However, he has hindered his deportation (or “frustrated” it, in legal terms) by refusing to meet with Iranian officials to secure the travel documents needed for his return to Iran.

He says he has good reason not to want to be returned to Iran because he is bisexual, has converted to Christianity, is Kurdish and has opposed the mistreatment of women by the Iranian government.

He says he fears for his life if he is removed to Iran, but he is prepared to cooperate in his removal to any country other than Iran.

The Commonwealth has accepted there is no prospect of his removal to any country other than Iran. It has also accepted that he cannot be removed to Iran without his cooperation, as Iran does not accept involuntary removals.

So does this mean he’ll be released in accordance with the High Court’s previous NZYQ case ^[4]?

How is this different from the previous case?

You might remember the NZYQ case from late last year. In it, the court found a stateless Rohingya refugee, who couldn’t secure a visa because of previous criminal convictions, couldn’t be held ^[5] in indefinite detention. This was because there was “no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future”.

The decision overturned a 2004 precedent and triggered the release of at least 149 other detainees ^[6] in similar situations.

A man in a suit stands and speaks in the house of representatives

Immigration Minister Andrew Giles has been under pressure from the opposition in question time. Lukas Coch/AAP

The Commonwealth has argued ASF17’s case falls into a different category, because whether there is a practical prospect of removal must be assessed on the basis that the detainee is cooperating.

When the case was first heard in the Federal Court, the Commonwealth argued that when assessing whether there is a practical prospect of deporting a detainee, delays caused by the detainee not cooperating shouldn’t be taken into account. This is regardless of whatever may be the reasons for his or her non-cooperation.

Justice Colvin, in the Federal Court, accepted ^[7] the Commonwealth’s argument. He pointed out that the reasons for refusal to cooperate, including fear of persecution on return to Iran, were matters separately dealt with during his application for a protection visa.

Once the detainee had reached the end of his appeals on this point, he was being held solely for the purpose of removal from Australia, so the reasons for his concerns could not be revisited.

Justice Colvin concluded that the assessment of whether there was a real prospect of his removal becoming practicable in the reasonably foreseeable future then had to be made on the basis of the detainee’s cooperation in taking relevant steps towards deportation. This was the case even if the detainee refused to act.

The appeal to the High Court

ASF17 then appealed to the Full Federal Court, and the Commonwealth government successfully sought the removal of this case directly into the High Court. This is because the lower courts have not been acting consistently on this point.

For example, in AZC20 v Secretary, Department of Home Affairs (No 2)^[9], an Iranian detainee who had never been convicted of a crime and had been held in detention for ten years was ordered to be released, despite the fact he was refusing to cooperate with his removal to Iran (although he was prepared to cooperate with his removal to any other country). The Commonwealth therefore wants the High Court to resolve the uncertainty and give a clear decision.

Previously, in its NZYQ judgment ^[10], the High Court distinguished that case from cases in which the detainee seeks to frustrate attempts to deport them.

The grey, concrete exterior of the High Court of Australia.

The High Court will hear the latest case on April 17. Mick Tsikas/AAP

This justifies the Commonwealth’s approach of treating detainees who have frustrated their deportation as being in a different category. It still, however, leaves it open to the High Court to decide whether they should be released or remain in detention.

In the past ^[11], the High Court has not been sympathetic to those who have sought to thwart their deportation by telling falsehoods about their identity, noting that the courts are disinclined to allow a party to take advantage of his or her own wrongful conduct.

But whether honest non-cooperation, as opposed to falsehoods, would be treated the same way remains to be seen.

How many detainees will be affected?

The decision in this case is likely to affect a wider cohort of people in immigration detention who cannot be deported because they have refused to cooperate. Some countries ^[12], such as Iran, do not accept the involuntary return of their citizens, which means detainees can prevent their deportation to these countries by refusing to cooperate.

According to The Guardian ^[13], a leaked government document estimated that about 170 people currently in detention could be affected, although the minister has refused to discuss numbers or the details of the case while it is before the courts.

If the High Court were to decide that a person could prevent their deportation by refusing to cooperate and could use this to cause their release into the community, it would give detainees a great incentive to refuse cooperation in deportation matters.

The Commonwealth has strong arguments on its side, but as always it is a matter for the High Court ultimately to decide.