A recent High Court decision critical of persons claiming to be refugees who attempt to manipulate the system for their own ends may be an initial signal to a change in attitude to the way in which our legal system will deal with migration cases in the future.
The ASF17case revolves around an Iranian individual who, under the pseudonym ASF17 refused to cooperate in departing Australia when required to do so.
ASF17 first arrived in Australia in 2013. He sought protection by applying for a Safe Haven Enterprise Visa which was eventually refused. As a result, proceedings were commenced to remove him from Australia as is required under the Migration Act. ASF17 repeatedly told Departmental offices that he would not return voluntarily to Iran. His refusal coupled with the fact that there was no other country to which he might be removed, in conjunction with Iran’s policy against issuing travel documents for involuntary returnees, created a legal deadlock with the potential for indefinite detention.
Based on the outcome of a separate High Court matter (NZYQ), relating to the constitutional limits of continuing detention decided in 2023, ASF17 applied to the court within a week of that decision, essentially seeking orders that his ongoing detention was not legally valid. In this application he claimed that he feared returning to Iran because of his fear of being harmed on the basis of his bisexuality. This claim had not previously been mentioned. The thinking was that if the ongoing detention was declared invalid, ASF17 would need to be released into the community where he would remain indefinitely for so long as he continued to refuse to voluntarily return to Iran.
The High Court decided that the continuing detention of ASF17 did not exceed constitutional powers. The removal of an alien detainee from Australia is a non-punitive act which the court held is reasonably capable of being achieved within the foreseeable future if the detainee decided to cooperate in the undertaking of administrative processes necessary to facilitate that removal. This situation was different from NZYQ in which the court decided that there was no chance of removal in the foreseeable future and ongoing detention could be characterized as being ‘punitive’ because of that. Conversely, ASF17 has the capacity to change his mind and has chosen not to do so.
The two court cases provide invaluable guidance to the types of issues which will need to be addressed if persons in detention seek to be released on punitive grounds. Clearly, cases involving applicants who have some ability to influence their own fate will start from a less than ideal position.
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