The High Court has ruled against a detainee seeking to remain in Australia in a landmark ruling.
The Albanian government has avoided a second round of public protests after the seven High Court judges issued their verdict on Friday in the case of an Iranian detainee who refuses to assist in his deportation.
The man, known as ASF17, identifies as bisexual and refuses to return to Iran because he fears facing the death penalty.
There was a unanimous verdict that detention is legal in scenarios where deportation is only hindered by a detainee who refuses to cooperate.
The ruling noted that the government would have been able to deport ASF17 “if the detainee had decided to cooperate in carrying out the administrative processes necessary to facilitate his expulsion.”
Amid concerns about the far-reaching implications of the ruling, Labor had attempted to push far-reaching new immigration laws through Parliament in March, but was blocked in the Senate by the Coalition, Greens and Cross MPs.
Under the proposed legislation, tourists from countries that do not accept forcibly returned citizens could be banned from traveling to Australia.
Tourists from at least five countries could be banned from traveling to Australia if Labour’s tough immigration laws are passed by Parliament. The legislation was created before the possible release of 170 more detainees.
It follows the controversial NZYQ decision in November, which saw 154 detainees, including murderers and rapists, released into the community.
As of February 2024, the AFP had received at least 27 reports of crimes committed by some of the released detainees.
In late April, Ninette Simons, 73, was beaten unconscious in Girrawheen, north of Perth. Released detainee Majid Jamshidi Doukoshkan was charged over the incident.
Jamshidi Doukoshkan and two other attackers allegedly beat 73-year-old Ninette Simons (above) unconscious in Girrawheen, north of Perth, on April 16.
Who is ASF17?
ASF17 has been fighting deportation efforts since late 2018, after arriving by boat more than a decade ago.
ASF17’s lawyers had argued that the government detained him in a “punitive manner” and that the onus was on the Commonwealth to “show a realistic prospect that removal from Australia would be feasible in the reasonably foreseeable future”.
His lawyer, Lisa De Ferrari SC, told the High Court that her client had repeatedly asked federal officials to try to find another country that would take him.
He cited testimony from ASF17 where he said: ‘Even take me back to where you picked me up on the high seas’ and: ‘Even take me to Gaza… there I would have a better chance of not being killed (than if they sent me to Iran.)’
But the Commonwealth argued that is a moot point because Iran is the only possible country to which he can be deported.
He claims his current detention is a legally permissible consequence of his refusal to cooperate with efforts to send him back to Iran.
Iran also has a policy of refusing to accept people who are forcibly returned.
Government lawyers argue that this matter is completely separate from the NZYQ matter, in which detainees had no possible way to return to their home country.
In this case – and for the 170 detainees in a similar position – the only barrier to their deportation is their own unwillingness to help, they said.
Majid Jamshidi Doukoshkan (above), a recently released immigration detainee accused of beating an elderly woman in her own home, has been in and out of court this year.
Immigration detention laws cause government headache
As part of the government’s efforts to prevent the release of detainees, they proposed introducing a prison sentence of up to five years for rejected asylum seekers who refuse to cooperate with their deportation.
There was also a clause that would allow the government to ban any and all visitors from designated countries who do not facilitate involuntary deportations.
This could result in citizens of Iran, Iraq, Zimbabwe, Russia and South Sudan being banned entirely from traveling to Australia, even for a holiday, although some exceptions would apply.
But the Coalition teamed up with the Greens to prevent Labour’s bill from being passed quickly in the Senate.
Instead, it was deferred to a formal Senate investigation, which delivered its findings Tuesday.
While the committee recommended the bill be passed by the Senate, the Coalition has made several amendments to protect against “possible unintended consequences”.
Immigration Minister Andrew Giles wants to avoid another NZYQ High Court fiasco
It comes in the wake of the NZYQ’s controversial decision in November, which saw 154 detainees released into the community.
These amendments include a requirement for the minister to inform parliament whether he or she will exercise the power to issue a direction on a person’s removal pathway.
The Greens want the bill rejected in its entirety, arguing it is “divisive and cruel.”
Human rights lawyers have described it as “the pure definition of discrimination” and “Trumpian”, while others have questioned whether Labor would ever have supported the Coalition if the roles had been reversed.
The proposal caused a diplomatic headache for the government.
A spokesperson for the Russian embassy in Canberra told Daily Mail Australia that the inclusion of Russia in this proposed legislation “is quite far-fetched.”
“We are struggling to recall a single occasion on which the Australian government expressed concern about the expulsion of a Russian citizen who had no valid reason to stay or asked us to cooperate with such an expulsion,” the spokesperson fumed.
The Australian government did not approach or inform the Russian embassy about the legislation or its possible effects, the spokesperson added.
When contacted by Daily Mail Australia, the Iraqi embassy in Canberra seemed surprised and asked for information about the proposal.
Embattled Immigration Minister Andrew Giles said of the proposal: ‘What we are doing with this piece of legislation, this important piece of legislation, is filling a very significant legal gap.
‘(It) is a loophole in the law that a small group of people who have no basis to remain in Australia refuse to cooperate with efforts to effect their removal.
“It is important to note that… these people are not refugees.”
Human rights lawyers have described the Albanian government’s proposed legislation as “the pure definition of discrimination” and “Trumpian”, while others have questioned whether Labor would ever have supported the Coalition if the roles had been reversed.
