High Court challenge could see up to 200 non-citizens released

The Albanese government will argue an Iranian man who has refused to co-operate with his deportation should continue to be held in immigration detention.

Constitutional law expert Anne Twomey. Picture: Tomasz Machnik

The Albanese government will argue an Iranian man who has refused to co-operate with efforts to deport him should continue to be held in immigration detention, in a landmark case that could lead to 200 non-citizens being released.

The legal challenge threatens to extend the findings in the NZYQ case that indefinite detention is unlawful to detainees who have sought to frustrate efforts to return them to their home country, exacerbating the migration crisis facing Labor.

The man at the centre of the case, known as ASF17, has been in detention for a decade and has resisted efforts to remove him, arguing he will face persecution in Iran for being bisexual, a Kurd and converting to Christianity.

Constitutional law expert Anne Twomey said the government’s bid to keep ASF17 behind bars would be aided by the court distinguishing in NZYQ that detainees who co-operated with authorities were in a separate category. The High Court has also previously found against a non-citizen who lied about their identity in an attempt to obstruct their deportation.

“The High Court previously held that the Constitution prevents the detention of an alien who you’re holding for the purposes of removing them, if there is no real prospect of removal becoming practicable in the reasonably foreseeable future,” she said.

“And what the High Court is dealing with in ASF17 is whether or not the detainee themselves, by refusing to co-operate, can dictate their own release. Because their refusal to co-operate means there’s no real prospect of their removal becoming practicable in the reasonably foreseeable future.

“So the real question here is just simply, when the detainee effectively holds the key to their detention in their hands, they can open the door of their detention by co-operating to allow themselves to be removed to the country of their citizenship.”

Australian Lawyers Alliance spokesman and barrister Greg Barns said the implications of ASF17 would extend only to detainees from a handful of countries that refuse to accept the involuntary return of their citizens, such as Iran, Russia and South Sudan. He said the case could trigger the release of 150 to 200 non-citizens in detention who are refusing deportation.

The ALA has strongly criticised emergency migration legislation the Albanese government introduced that would force non-citizens who had exhausted every option to remain to co-operate in their removal.

“Just because people have not been successful in being able to stay in Australia as a refugee – having done many of these cases myself – they still have fears about return,” Mr Barns said.

“And to keep them in detention is, again, a draconian measure.”

The hearing will commence at 10am on Wednesday.