Almost 200 detainees to stay locked up after court throws out test case which ... trends now
The High Court has ruled against a bisexual Iranian man who is refusing to be deported from Australia, in a landmark judgement which could have freed almost 200 more detainees.
The seven High Court justices delivered their verdict on Friday and dismissed the legal bid by the man, known as ASF17.
The man identifies as bisexual and refuses to return to Iran because he fears he will face the death penalty. Iran has a longstanding policy of not accepting involuntary returnees.
But the court found in a unanimous verdict that detention is lawful in scenarios where deportation is only hindered by a detainee who refuses to cooperate.
The judgement said the government would have been successful in deporting ASF17 'were the detainee to decide to cooperate in the undertaking of administrative processes necessary to facilitate their removal'.
The ruling is a major win for the government but pressure is now mounting for Labor to drop controversial 'Trump-style' immigration legislation.
The government had attempted to push far-reaching new migration laws though Parliament in March, but was blocked in the Senate by the Coalition, Greens and crossbenchers.
Under the proposed legislation, tourists from nations which do not accept forcibly returned citizens could be banned from travelling to Australia.
The Greens called a snap press conference on Friday morning to call on the government to drop this bill, noting it is 'even more unjustified' given the High Court result.
Human rights lawyers have described it as 'the pure definition of discrimination,' and 'Trumpian', while others have questioned whether Labor would have ever supported the Coalition if roles were reversed.
The Albanese government has dodged a second round of public outcry after the seven High Court justices delivered their verdict on Friday in the case of an Iranian detainee who is refusing to assist in his deportation. Pictured: Immigration Minister Andrew Giles
ASF17 launched his legal bid to be freed 'barely a week after' the controversial NZYQ decision, which saw 152 detainees - including murderers and rapists - released into the community.
The High Court ruled in November that it was unconstitutional to keep people locked up if there was no reasonable assumption that they could ever return home.
ASF17 told the High Court of 'being caught by his wife in bed with a man in Iran and of his wife having reported the incident to police who had attempted to arrest him'.
But Friday's judgement found ASF17 had not expressed his fears about being harmed in Iran due to his sexual orientation to immigration officials during his 2015 application to stay in the country.
The judgement also questioned his account of his bisexuality while still in Iran.
'The primary judge accepted that ASF17's present sexual orientation is bisexual and found that he has had recent sexual encounters with men while in immigration detention,' the judgement read.
'However, the primary judge did not accept the truthfulness of the account given by ASF17 of having been caught by his wife in bed with a man in Iran, did not accept that ASF17 was telling the truth about why he did not want to return to Iran.
'The primary judge found that ASF17 did not have a genuine subjective fear of harm in Iran and that the reason ASF17 was refusing to undertake voluntary actions to assist in his return to Iran was that he wanted to remain in Australia.'
Immigration Minister Andrew Giles celebrated the government win on Friday morning.
He said: 'The Government fought strongly to defend our position in the High Court in the matter of ASF17 v Commonwealth of Australia.
'We welcome today’s unanimous decision of the Court, which has found that individuals who are not cooperating with their own removal are able to remain in immigration detention until they are removed from Australia.
'Community safety continues to be our highest priority and we will continue to take all necessary steps to keep Australians as safe as possible.'
Tourists from at least five countries could be banned from travelling to Australia if Labor's tough proposed migration laws pass Parliament. The legislation was created ahead of the potential release of 170 more detainees
It comes on the back of the controversial NZYQ decision from November, which saw 154 detainees - including murderers and rapists - released into the community.
As of February 2024, the AFP had received at least 27 reports of crimes committed by
