The High Court of Australia in Canberra (file image)
The High Court has found indefinite immigration detention is unlawful. Image by Lukas Coch/AAP PHOTOS
  • refugee

Warnings third-country deportations may rouse tensions

April 17, 2024

Deporting asylum seekers to third countries could whip up diplomatic tensions, Australia’s solicitor-general has said defending the government’s right to indefinitely detain hundreds of immigrants.

A detained Iranian man, known as ASF17, has taken his legal bid for freedom to the High Court in a case that could determine the fates of hundreds of immigrants and government policy.

Authorities have attempted to deport him to Iran every six months since 2018, when his asylum seeker visa was refused.

Stephen Donaghue (file image)
 Stephen Donaghue said authorities had investigated deporting ASF17 to a third country. Image by Luis Ascui/AAP PHOTOS 

But as a bisexual man, ASF17 could face the death penalty upon return.

Solicitor-General Stephen Donaghue said authorities had investigated the possibility of deportation to a third country, but there were no options without significant ramifications. 

“If we did start removing people to countries where they don’t have right of residency or long term stay, that would both start creating diplomatic tensions and lead to risk of refoulement,” he told the court on Wednesday.

He warned that if the justices upheld his appeal, it could “turn the federal circuit court into a refugee tribunal”.

ASF17’s lawyer Lisa De Ferrari said without being offered other options, ASF17 had been forced to remain in detention indefinitely.

“It was never necessary to keep our client in detention only to ask in six months if he is going to change his mind,” she told the High Court.

“They’ve straitjacketed themselves and now they’re turning the table on my client, saying ‘you’ve been very unreasonable by not helping us get you to Iran’.

“How can it not be punitive (when) there’s never any end point?”

Before this appeal, the 37-year-old asylum seeker had urged authorities to send him anywhere but Iran.

 “Take me back to where you picked me up in the high seas, even take me to Gaza,” the asylum seeker said during a Federal Court cross-examination, his lawyers recalled.

“I have a better chance there of not being killed than if you take me to Iran.”

Lisa De Ferrari (file image)
 Lisa De Ferrari said Australia had forced her client to remain in detention indefinitely. Image by David Crosling/AAP PHOTOS 

His case springs from an November High Court ruling, which found it was unlawful to indefinitely detain people with no prospect of deportation.

About 150 immigration detainees were released as a result.

The 37-year-old appellant wants this expanded to cover people who refuse to co-operate with authorities on their deportation.

ASF17 first arrived on Australian shores by boat in 2013 and has been in detention ever since his bridging visa was cancelled in 2014.

There are about 200 other people in a similar situation, a number of whom are suspected to have had their protection claims refused under a visa “fast-track” process.

Dr Donaghue said refugee applicants can genuinely fear what may happen to them if they are sent back to their own countries, but this fear may not be “objectively well-founded”.

The scheme will be abolished on July 1 but the Human Rights Law Centre accused the government of failing to help those refused visas under it.

Sanmati Verma, a legal director at the law centre, said the government was using indefinite detention as a way to “coerce people into returning to danger”.

“People in detention are deprived of their freedom, separated from their families and communities and routinely subjected to violence, isolation and deplorable conditions,” she said

The High Court case could also impact another 4000 people.

Before the hearing, the government tried to ram through laws to prevent a release of people from immigration detention.

Under the proposed laws, those who refuse to co-operate with the government over their deportation – which includes those on some bridging visas – could spend up to five years in prison.

The legislation would give the home affairs minister unilateral power to ban visa classes of relatives of asylum seekers who come from blacklisted countries that do not accept deportees.

But it was blocked by an unlikely union between the coalition, the Greens and the crossbench, and sent to a senate inquiry.

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