Minister welcomes high court decision on detainees

Hundreds of migrants will remain behind bars after Australia’s highest court decided against extending a landmark ruling in a move that has been welcomed by the minister.

An Iranian man, known as ASF17, failed in his bid for freedom after taking his case to the high court.

The immigration detainee argued an earlier high court decision – known as NZYQ – that ruled it was illegal to detain someone indefinitely if there was no real prospect of deportation should be extended to people who deliberately frustrate the federal government’s efforts.

It ruled in the NZYQ case that indefinite detention imposed by the government constituted punishment that could only be imposed by the courts.

The High Court previously ruled indefinite detention with no prospect of deportation is unlawful. (Lukas Coch/AAP PHOTOS)

ASF17’s consistent refusal to co-operate with his deportation to Iran and failure to identify a third country where he would have a right to residency or long-term stay created an impasse as Tehran does not accept involuntary returnees.

But it was possible he could be deported to Iran if he co-operated, which meant the previous NZYQ ruling did not apply if there was a reasonable prospect of him being removed, six high court justices determined.

“The short point is that … continuing detention for a non-punitive purpose that is occurring because of a voluntary decision of the detainee cannot be characterised as penal or punitive,” the six wrote in their reasonings published on Friday.

The Commonwealth “fought strongly” to defend the man’s detention, Immigration Minister Andrew Giles said.

“We welcome today’s unanimous decision of the court, which has found that individuals who are not co-operating with their own removal are able to remain in immigration detention until they are removed from Australia,” he said in a statement.

“Community safety continues to be our highest priority and we will continue to take all necessary steps to keep Australians as safe as possible.”

The federal government needed to have the capacity to deport people who had no right to stay in Australia, Prime Minister Anthony Albanese said.

“These are not people who have been found to be refugees,” he told reporters in Canberra ahead of the decision being handed down.

“They’ve exhausted their legal processes, they’ve been found not to have any right to stay here, they shouldn’t be just allowed to self nominate in staying here.”

The high court’s decision is seen as a win for Prime Minister Anthony Albanese. (Richard Wainwright/AAP PHOTOS)

The landmark high court ruling in November led to the release of more than 150 immigration detainees.

Australian authorities have attempted to deport the Iranian man to the conservative nation every six months since 2018, when his asylum-seeker visa was refused.

As a bi-sexual man, ASF17 could face the death penalty upon return.

But he was not found to be a refugee and had run out of legal appeals.

ASF17 first sought asylum in Australia by boat in 2013 and has been in detention for a decade.

The federal government had argued he should remain in detention and the Commonwealth should retain its power to detain people in similar circumstances as they had the power to bring their detention to an end.