This was published 5 months ago
The unwanted: High Court to determine the fate of another 127 in limbo
By David Crowe
Australian authorities are holding at least 127 asylum seekers in detention despite being unable to return them to their home countries as the government prepares for a High Court hearing on whether it must release people it cannot deport.
The detainees from Iran, Iraq and Sudan are at the heart of a new test for the government in its attempts to defend the detention regime after months of political pressure over the release of convicted criminals last year.
Immigration Minister Andrew Giles dismissed questions about the number of people who could be released if the government lost the next case in the High Court.Credit: Alex Ellinghausen
Official figures show the detainees make up a key cohort among 872 people in immigration detention because of the challenge of removing them from Australia against their will.
In the next test case, an Iranian asylum seeker known as ASF17 is seeking his release from detention because he fears for his life if he is sent back to Iran, which will not accept citizens who are forced to return.
The man is one of 69 people from Iran in detention, along with 34 from Sudan and 24 from Iraq, according to the latest figures from the Department of Home Affairs.
Immigration Minister Andrew Giles dismissed questions on Monday about the number who could be released if the government lost the next case in the High Court, which changed its thinking on migration and detention law in a major decision last November.
Giles insisted, however, that the government would seek to keep people in detention if they could not be removed from Australia, repeating comments he made to this masthead on Sunday.
“We are doing everything possible to keep the community safe,” he told parliament.
In the decision last November, the High Court ruled that the government had to release a Rohingya refugee known as NZYQ because there was no real prospect of his removal to Myanmar in the reasonably foreseeable future. The government wanted to deport him because he had been convicted of child rape in Australia.
In a key difference from the November case, the Iranian applicant does not appear to have a criminal conviction and the argument hinges on whether there is any possibility of deporting him to Iran.
Coalition immigration spokesman Dan Tehan demanded an answer from Giles on the number of people in similar circumstances who were no longer going into detention after serving time for criminal offences.
“How many foreign criminals will finish a custodial sentence and be released into the community instead of going into immigration detention?” he asked.
Tehan claimed the government might have to release another 100 to 150 detainees but did not cite his source.
Giles did not reveal the number and instead challenged Tehan to take up an invitation from the government to attend a legal briefing on the High Court ruling.
“What this question shows is exactly why the shadow minister is uninterested in the legal briefing – because he prefers fear to facts,” he said.
While there is no public data on the number of foreign citizens who are being released from jail each month, and might in theory be detained so they can be deported, the official figures show there are 824 men and 48 women in immigration detention.
Of the 872 people, 777 have a criminal history. This figure is not broken down by nationality.
The government is due to lodge its submission on ASF17 at the end of this month before the case goes to a hearing in the High Court next month, with lawyers for the Iranian man arguing he is bisexual and would be persecuted if returned to Iran.
“The appellant is not volunteering to assist the Commonwealth with removal to Iran,” his legal team, led by Lisa De Ferrari, SC, said in a submission to the High Court.
“However, he has never objected, nor indicated an unwillingness to assist the Commonwealth, to being removed from Australia to any other place in the world. In fact, he has positively asked for it.
“Nonetheless, the Commonwealth has not attempted to remove the appellant to any other place in the world than Iran.”
Because each case has unique factors, it is not possible to know how many of the other Iranians in detention might also be released if ASF17 is freed, just as it is not possible to forecast how the case might determine the fate of those from Iraq or Sudan.
Sudan and Iraq are both riven by civil strife, making deportation challenging.
Human Rights Law Centre acting legal director Sanmati Verma said the High Court had made it clear in the NZYQ case that the government could not lock people in detention forever.
“Whatever the reason that a person cannot be removed from Australia – whether it is because they are stateless, owed protection obligations, or because there are practical barriers preventing their removal – the government must accept that indefinite detention is not the answer,” she said.
“People in this situation have endured years upon years of detention because they fear returning to the country they have fled.
“No legal strategy from the government will suddenly convince people to voluntarily return to danger.
“Instead of subjecting people to lifelong punishment based solely on their visa status, the government should be allowing people to get on with their lives in the community.”
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