A potentially law-changing High Court case will be heard this week. Here’s what we know

A potentially law-changing High Court case will be heard this week. Here’s what we know
  • PublishedApril 15, 2024

The political brawling over immigration detention has reached levels not seen for the best part of a decade, and it’s all because of a High Court ruling late last year that up-ended two decades of policy and led to the release of almost 150 people into the community.

This week another case makes its way to the High Court, and it could have significant consequences for scores more still behind bars.

The case has been brought by a man known by the pseudonym ASF17, and he will cause even more headaches for the Albanese government if the High Court rules in his favour.

Who is ASF17?

ASF17 is a 37-year-old bisexual man who arrived in Australia by boat in July 2013.

He was put in immigration detention, released, and then detained again before applying for a visa to remain in Australia.

That was rejected, and ASF17 unsuccessfully appealed against the decision through the courts twice.

Since August 2018, officials from Home Affairs and the Australian Border Force (ABF) have been trying to deport him back to Iran, but he has been refusing to cooperate.

ASF17 insists that if he is sent back to Iran, he will face persecution because of his sexuality – something he argues was never taken into account in his original applications for a visa to remain in Australia.

How does the NZYQ ruling play into this case?

Last year’s High Court ruling on the case of a Rohingya man who was a convicted child sex offender looms large over this case — and it has effectively laid the foundations for ASF17’s claim to be heard.

The man, known as NZYQ, was unable to be deported back to Myanmar because he is a member of a persecuted minority, and no other country would accept him — despite the Australian government’s approaches to at least six different nations.

In November, the High Court ruled indefinite detention for someone with no reasonable prospect of deportation was unlawful.

It led to the release of 149 people, including hardened criminals, because the government said they faced a similar situation to NZYQ.

What’s at play in ASF17’s case is whether a refusal to cooperate with deportation would prevent triggering that NZYQ rule – whether an individual’s frustrating of the process means they can avoid ongoing detention.

What is ASF17’s case?

There are a couple of parts to ASF17’s case, as these types of court cases generally have a few similar arguments running in parallel to each other to broaden the chances of success.

At its heart is ASF17’s claim that he fears what will happen to him if he’s deported back to Iran – that his sexuality puts him at risk of harm.

And his lawyers note that the Commonwealth has accepted sexual intercourse between men is illegal in Iran and punishable by death.

In addition to that, ASF17 is arguing he has “never objected, nor indicated an unwillingness to assist the Commonwealth, to being removed from Australia to any other place in the world”.

“In fact, he has positively asked for it,” court documents show.

In other words, ASF17’s lawyers are saying Australia could try to deport him anywhere else in the world, and he may well go.

Beyond that, his lawyers insist Iran wouldn’t accept him anyway given the country’s practice of refusing to accept “involuntary returnees” — something described as a “roadblock”.

Then there’s the issue as to whether ASF17 will always refuse to be deported.

His lawyers argue the Commonwealth can’t keep him in detention simply because he might change his mind and work with authorities in the future.

They suggest this is a hypothetical, and cannot and should not be used as a reason to suggest there’s a prospect for his deportation.

What is the Commonwealth arguing in response?

First up, the Commonwealth has homed in on ASF17’s claim that he’ll be persecuted on the grounds of his sexuality if he is deported to Iran.

It’s arguing that the reason his sexuality was never taken into account when he applied for a visa in the first place is because he didn’t raise it.

The Commonwealth says that at various stages through this process he’s changed his tune — jumping between claims that he is stateless, then that he fears persecution on the grounds he has converted to Christianity and because he is a Kurd, and that he only mentioned his sexuality once his visa was denied.

It’s also rejected his suggestion that he’d be prepared to consider being sent to any country other than Iran, labelling it as an “irrelevant distraction” because he can legally only be deported to Iran.

Latching on to that point, the Commonwealth claims that if another country did exist, that would be a reason to keep him in detention because it would be a “real prospect” of deportation.

The Commonwealth says ASF17’s case is very different to that of NZYQ.

In that case, if NZYQ’s detention had continued when it was no longer authorised, it would have become a punishment.

And that would have been illegal because under the constitution only the courts can impose “punitive” detention.

But the government argues the current case falls short of that measure.

“The decision of a non-citizen who could and would be removed from Australia, but for their refusal to cooperate, cannot properly be characterised as punitive,” its submission to the court states.

It also suggests ASF17’s “attitude may change over time” and he may cooperate in future.

It is unsurprising the Commonwealth isn’t conceding any ground here. It knows a decision in ASF17’s favour will result in the release of even more people from immigration detention, and will potentially inspire others to refuse to cooperate with authorities.

Has the government tried to pre-empt the case?


Before Easter, the Albanese government unsuccessfully tried to rush legislation into parliament which would make it easier to deport people.

It would have compelled people to cooperate with the process or risk jail terms of between one and five years.

The laws would also give the immigration minister sweeping powers to designate countries refusing to accept deportations as uncooperative, which would result in visa applications being refused — an effective travel ban.

While not mentioning them by name, it was a clear reference to countries such as Iran, which refuses to accept people forcibly deported.

Home Affairs Minister Clare O’Neil said the ASF17 case was one driver of the legislation, but not the sole reason for it being rushed into parliament.

However, the bill stalled and now will not be dealt with until after the ASF17 hearing.

The case was supposed to be heard in a full-bench appeal in the Federal Court but was moved to the High Court at the request of the federal attorney-general in February.

Andrew Giles at a press conference with Clare O'Neil
The government says the ASF17 case is one of the reasons the government tried to rush law changes through parliament before Easter.( ABC News: Matt Roberts )

Why did it take so long to overturn the legality of indefinite detention?

Since the Al-Kateb case in 2004, which found indefinite detention for asylum seekers who could not be deported was lawful, there were efforts to overcome the ruling.

The problem was finding the right case.

One attempt involved a man who refused to cooperate with authorities by giving inconsistent information about his identity.

The man had been in detention for nine years, after originating from Africa and coming to Australia via Norway.

It was a chaotic hearing in which lawyer Ron Merkel tried to pause the case mid-hearing to allow his client time to cooperate. He was told to press on.

The court dismissed the case on the spot, with Mr Merkel suggesting at the time another case might have to be found to mount a successful challenge to indefinite detention.

In the end, that case was NZYQ, but it was argued by other lawyers.

The High Court building in Canberra.
The High Court’s ruling on the ASF17 case could have significant consequences for scores of people behind bars.(ABC News: Elise Pianegonda)

Will there be a quick decision in ASF17?

ASF17 is being heard by the High Court on Wednesday, and there’s nothing to say a decision will be handed down on the day.

But the NZYQ decision was decided in a day, catching many by surprise. So people will be poised for another quick turnaround.

The High Court didn’t publish its reasons for its ruling on NZYQ for some weeks, adding to the confusion about the effect of its judgment.


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