Labor plans new defence in court clash over immigration detainees

The federal government will move to block the release of more immigration detainees by mounting a new defence in the High Court against asylum seekers who refuse to co-operate with Australian authorities, arguing they cannot use the approach to obtain their release.

The claim will intensify the political row over the detention regime as the Coalition accuses the government of losing control of the nation’s borders after it released 151 detainees following a High Court ruling last year that recast migration law.

Immigration Minister Andrew Giles.Credit: Alex Ellinghausen

Immigration Minister Andrew Giles has dismissed a key claim from the asylum seeker at the heart of a looming test case for the entire regime by arguing that those who do not co-operate must remain in detention.

The argument is central to a High Court hearing next month on whether an Iranian asylum seeker known as ASF17, who is refusing to co-operate because he fears being harmed in Iran if he is returned, should be released from detention in accordance with last year’s ruling.

Lawyers for the Iranian man took his case to the High Court after losing in the Federal Court, lodging their submissions on March 8. The federal government is expected to lodge its submission within weeks, before a crucial hearing in April that could set a precedent for many other detainees.

Giles countered the claim for release by saying the priority was to remove people from Australia if they had no right to stay.

“Individuals who do not co-operate with their removal should remain in immigration detention,” he said. “We successfully defended this position in the Federal Court and will vigorously defend this in the High Court.”

Federal parliament resumes on Monday, with the Coalition accusing Labor of “shocking incompetence” in releasing sex offenders and murderers after the High Court decision last November relating to a man known as NZYQ.

The Coalition has also seized on reports from a government briefing to the media last Friday to claim that Labor is trying to “lower expectations” about border control in anticipation of further High Court decisions to release more detainees.

Coalition home affairs spokesman James Paterson said the government should apply to the courts to use its new preventative detention powers, agreed by parliament late last year, to take some of the convicted criminals out of the community.

“Right now those people are out there in the community, and they are reoffending against the community,” Paterson told the ABC’s Insiders program on Sunday.

“Eighteen of them have breached state or federal law and face charges. Ten of them have breached their visa conditions. But unfortunately, every one of those 10 is going to walk free because Andrew Giles completely stuffed up issuing their visas.”

The government is facing parallel legal tasks because it is trying to defend the existing detention regime against new cases such as that of ASF17 while also going through the cases of the 151 people already released to consider who could be detained again under the preventative detention powers.

One of the 151 cases is said to involve 35,000 documents. The government has 46 lawyers going through the cases to decide which ones have the strongest chances of success. The crucial argument in court would be that the individual must be detained for the safety of the community.

Home Affairs Minister Clare O’Neil acknowledged on Friday that the High Court decision on NZYQ had overturned years of migration law and could be followed by other cases that forced the release of detainees.

“The High Court, through a series of major decisions, has drawn new boundaries around the powers of the executive and the parliament,” she said.

“And there continues to be uncertainty about exactly where those boundaries will ultimately be drawn when it comes to key aspects of migration law.”

In the case of NZYQ, a Rohingya refugee the government wanted to remove from Australia because he had been convicted of raping a 10-year-old boy, the court ruled there was no real prospect of his removal in the reasonably foreseeable future, and he should therefore be released.

In the case of ASF17, the Iranian asylum seeker was refused a refugee visa in 2017 but Iran does not accept people returning to the country against their will, so the man has remained in detention. He has not been in detention because of a criminal offence.

As a result, the High Court decision on ASF17 could cover a new cohort of detainees including those who refuse to co-operate with authorities, making this a central issue in his case.

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