Explainer: High Court’s decision in ASF17 v Commonwealth
The High Court on 10 May 2024 handed down its decision in ASF17 v Commonwealth [2024] HCA 19 unanimously dismissing the appeal brought by ASF17 seeking his release from immigration detention.
What is the case about?
ASF17 is a citizen of Iran, who has been held in immigration detention in Australia for close to a decade. His application for a protection visa was refused and he has been subject to removal from Australia since 2018. He fears harm in Iran due to his bisexuality, but this claim has never been assessed by the Australian Government. He is one of thousands of people unfairly refused through the flawed 'Fast Track' assessment process.
The Government of Iran has a longstanding policy of refusing to accept the forced return of its citizens. Due to his fears, ASF17 has refused to participate in the administrative processes that may allow the Australian Government to remove him to Iran.
In this case, ASF17 challenged the legality of his ongoing immigration detention based on the principles in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005. In NZYQ, the High Court held that it was unlawful and unconstitutional for the Executive Government to indefinitely detain people in immigration detention. Following that case, where there is no real prospect of the person’s deportation from Australia becoming practicable in the reasonably foreseeable future, the person must be released from detention.
The relevant question in ASF17 was whether indefinite detention will be unlawful in circumstances where a person is not cooperating with their deportation because they fear harm in their home country.
What did the Court decide?
Continuing detention of ASF17 is lawful
In two separate judgments, the High Court unanimously held that ASF17’s continuing detention is lawful.
The majority judgment (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ) considered that ASF17 could be removed to Iran if he cooperated in the process of obtaining travel documents from the Iranian authorities, which he chose not to do. The Court noted he did not lack the capacity to cooperate.
In a separate judgment, Edelman J similarly considered that ASF17 could be removed to Iran in the reasonably foreseeable future if he consented to that removal.
Accordingly, the Court concluded that ASF17’s detention did not exceed the constitutional limitation articulated in NZYQ – that is, there remains a real prospect that ASF17 will be removed from Australia in the reasonably foreseeable future and his detention for this purpose is therefore lawful.
Immigration detention is lawful where person “voluntarily” refuses to cooperate
In the joint judgment, the Court clarified that removal would satisfy the test in NZYQ – that is, removal is practicable in the reasonably foreseeable future – where:
There is a country to which the person might be removed, and the Migration Act 1958 (Cth) (the Act) allows the person’s removal to that country. For example, the Act does not allow the removal of a person to a country if a “protection finding” has been made in relation to that country. In ASF17’s case, no protection finding has been made in relation to Iran, so it did not matter whether ASF17's fear of harm was in fact well-founded.
There are steps, including administrative processes, that can practically be taken which would realistically result in the person’s removal in the reasonably foreseeable future. Such steps remain practically available even where the person voluntarily refuses to cooperate as removal could be achieved if the person decides to cooperate. In ASF17’s case, the matter proceeded on the basis that if ASF17 cooperated with attempts to remove him – for example, by engaging with Iranian authorities to apply for a travel document – then he could be removed to Iran.
In a separate judgment, Edelman J reached a similar conclusion that a person’s voluntary refusal to cooperate with their deportation does not vitiate the real prospects of their removal, as the person might consent in the reasonably foreseeable future.
Immigration detention may be unlawful where person incapable of cooperating
The joint judgment distinguished ASF17's circumstances from those of a person who is unable to cooperate with their deportation due to mental incapacity or psychiatric illness. This is the situation of the intervener, AZC20, an Iranian man who suffered serious psychological harm due to being held in immigration detention for over a decade. The joint judgment suggests that a capacity to cooperate is relevant to determining the prospects of the person’s removal from Australia in the reasonably foreseeable future.
In a separate judgment, Justice Edelman expressly determined that there will be no real prospect of deporting a person who lacks capacity to cooperate with their deportation. Accordingly, people like AZC20 who are unable to cooperate due to medical incapacity cannot be lawfully kept in immigration detention.
What happens next?
The immediate result of the High Court’s decision is that ASF17 – a man who has already been subjected to close to a decade in immigration detention – now faces a choice between indefinite detention in Australia or risking persecution in Iran. That is a choice that no person should have to make.
The decision will also impact up to 200 people in immigration detention who the Albanese government is unable to remove. But the High Court’s decision shows that a nuanced approach to understanding 'cooperation' with removal is needed, both in relation to defining the constitutional limitation and as a matter of administrative practice. The decision highlights the failings of Australia's refugee assessment processes, which have barred ASF17 from any meaningful opportunity to have his risk of harm arising from his sexuality recognised.
There are various and complex reasons why a person may not – or cannot – consent to their deportation: fear of harm in their country of citizenship and medical incapacity are directly raised in ASF17. The Albanese government must now meaningfully engage with the circumstances of each person who remains in immigration detention and, at a minimum, immediately release those who do not have the capacity to cooperate with their removal.
Dated: 10 May 2024