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April 17, 2024
An Iranian man whose High Court challenge could trigger the release of more immigration detainees is arguing war-torn Gaza could be a safer deportation destination than his home country.
Federal Government lawyers are arguing the man could return to Iran — but is simply choosing not to.
The High Court is on Wednesday hearing the case of a 37-year-old detainee who is refusing to cooperate with authorities amid fears he could be executed due to his sexuality if he returns to Iran.
The court adjourned just before 2pm Perth time with no judgment handed down.
The case sprung from the 2023 bombshell High Court ruling that found it was unlawful to indefinitely detain people with no prospect of deportation.
The ruling prompted the release of about 150 immigration detainees — including convicted murderers, rapists and drug traffickers — and ignited a political scandal for the Government.
The Iranian man — referred to as ASF17 — wants it expanded to cover those who refuse to co-operate with authorities on their deportation.
The outcome could result in the release of between 150 and 200 detainees who are in similar situations.
“The flow-on consequences if the Government would not win its case would be very profound for the system of mandatory detention in Australia,” shadow home affairs minister James Paterson said.
Authorities have continuously attempted to deport the man to Iran every six months since 2018, when his asylum seeker visa was refused.
The man, who is bisexual, fears his sexuality puts him at risk of the death penalty in Iran.
“Take me back to where you picked me up in the high seas, even take me to Gaza,” the asylum seeker said during a Federal Court cross-examination, his lawyers recalled on Wednesday.
“I have a better chance there of not being killed than if you take me to Iran.”
However, Australia has not offered other options, forcing him to remain in detention indefinitely, which the man’s lawyer, Lisa De Ferrari, called punitive.
Solicitor-General Stephen Donaghue said authorities had investigated the possibility of deportation to a third country, but there were no options without significant ramifications.
“If we did start removing people to countries where they don’t have right of residency or long term stay, that would both start creating diplomatic tensions and lead to risk of refoulement,” he told the court on Wednesday.
He warned that if the justices upheld his appeal, it could “turn the federal circuit court into a refugee tribunal”.
The Federal Government last month tried to ram through emergency laws to pre-empt the case, before the Coalition and the Greens joined forces to stall their passage and refer the legislation to an inquiry.
The legislation would allow the Government to impose a prison sentence of between one and five years on asylum seekers who refuse to co-operate with their deportation.
Under the Bill’s most contentious provision, the immigration minister would be able to deny visa applications from countries whose governments do not accept involuntary deportations, such as Iran, South Sudan and Zimbabwe.
The power to blacklist entire countries has sparked fear among migrant communities and triggered a backlash from Labor’s youth wing and grassroots pro-refugee group, which described it as a “huge over-reach”.
Speaking ahead of Wednesday’s hearing, Home Affairs Minister Clare O’Neil said the government had argued the man should remain in detention and the Commonwealth should retain its power to detain people in these circumstances.
“We are prepared for every eventuality in terms of what decision is made ... but please understand at the moment we are empowered to keep that person in detention and he is in detention because of our decisions,” she told Sunrise.
