High Court to hear arguments in ASF17 migrant deportation case

The High Court will hear arguments on the ASF17 case on Wednesday morning. (ABC News)

Lawyers for an Iranian man refusing to cooperate with efforts to deport him will make their arguments before the High Court today, demanding his release into the community.

The case could have significant consequences for the nation’s immigration detention system, and follows last year’s landmark High Court ruling that indefinite detention for people who cannot be deported is unlawful.

ASF17 is a 37-year-old bisexual Iranian man, who arrived in Australia by boat more than a decade ago.

Since 2018, officials have been trying to deport him back to Iran – but he has refused to cooperate, arguing he will be persecuted because of his sexuality.

His lawyers insist Iran also would not accept him given the country’s practice of refusing to accept people forcibly deported, and that he cannot remain in detention on the basis he may change his mind and agree to deportation in the future.

ASF17’s lawyers are hoping to piggyback off the NZYQ judgment in November last year, and argue he has no reasonable prospect of deportation.

“The question in this particular case is what if the person themselves is preventing their own removal during that foreseeable future — so they hold the key to their own prison,” Professor Emerita Anne Twomey from the University of Sydney Law School said.

“Can you effectively force your release and your movement back into the Australian community by simply refusing to cooperate, thereby stymieing the ability of the government to deport you, and then still satisfying that test by saying ‘well there’s no reasonable prospect of you being deported’, and therefore, you should be released?”

Any ruling by the High Court could have significant implications on a broader number of people facing deportation.

On Monday, the Home Affairs Department revealed there were between 150 and 200 people currently in immigration detention also refusing to cooperate with efforts to deport them.

More than 4,400 others were currently on bridging visas “for the purpose of departure from Australia” – in other words, they were awaiting deportation.

The department said “there may be an issue” with around 1,200 from that group if they “do not voluntarily engage” with the deportation process.

Government arguing against the case but legislating to get ahead of loss

A spokesperson for the Immigration Minister Andrew Giles’ office said the government was arguing against “the release of individuals from immigration detention.”

“Our position remains that individuals who have no right to remain in Australia should be removed from Australia,” the spokesperson said.

“Australians should be assured that we will continue to work with our law enforcement and security agencies to take all necessary steps to ensure community safety.”

The spokesperson took aim at the Coalition for not having immediately backed legislation making it easier to deport people, which the Labor government unsuccessfully tried to rush into federal parliament before Easter.

At the time, the government said the ASF17 case was one of the driving factors for the laws.

“While the government is working to keep Australians safe, the Coalition are playing politics,” the spokesperson said.

The legislation is being scrutinised by a Senate committee, due to report back next month.

NZYQ redux?

Last year’s ruling in NZYQ took many by surprise – not just because it overturned two decades of legal precedent.

The High Court heard arguments from lawyers in that case, briefly adjourned and then issued its ruling in a single day.

It took a couple of weeks before the reasons for the judgment were published, fuelling fevered debate about the ruling among federal politicians in the intervening period.

“I would imagine that given the consequences of what happened last time, and the extraordinary political difficulties that arose as a consequence of not actually having the terms of the judgment, I think the court would think twice before allowing that to happen again,” Professor Twomey said.

“My suspicion is that the High Court will probably be a bit more reticent about taking that approach again, but I could be wrong.

“You never know — the High Court might double down on its approach and say ‘well look, you shouldn’t be holding people unlawfully in detention for any second longer and therefore we’ll put out a decision immediately’.”