Indefinite detention continues for people who cannot be forcibly deported
The High Court has dismissed a legal challenge to the Australian Government’s ongoing detention of people who cannot be forced to return to their country of citizenship, meaning that up to 200 people may remain indefinitely detained, said the Human Rights Law Centre today.
The man who brought the challenge, known in court as ASF17, has been detained since 2013. The Australian Government is unable to deport him because the Government of Iran refuses to accept the forced return of its citizens. ASF17 does not consent to returning to Iran, where he fears he will suffer serious harm or death because of his sexual orientation. He sought his liberty on the basis of the High Court’s recent ruling that people who cannot be deported in the reasonably foreseeable future must be released.
In a judgment delivered just three weeks after the case was heard, the Court found that because ASF17 had chosen not to cooperate with his own removal, even though he had the capacity to do so, his continuing detention remained lawful. The Court found that the Migration Act authorised his deportation regardless of whether his fear of being killed in Iran was well-founded, so this did not justify his refusal to consent. ASF17 is one of thousands of people unfairly refused refugee protection through the previous Coalition Government’s failed ‘Fast Track’ system.
The Human Rights Law Centre’s client known as AZC20 intervened in the case. The Court's decision made clear that for people like AZC20, who do not have the ability to consent to removal for medical, mental health or other reasons, a lack of cooperation will not justify indefinite detention.
Immigration detention has destroyed people’s lives, caused lifelong physical and psychological harm, and separated families. Today’s decision means that up to 200 people who are currently detained for refusing deportation may remain locked up for the rest of their lives.
Sanmati Verma, Legal Director at the Human Rights Law Centre, said:
“Every person – no matter their nationality or visa status – should have the same right to freedom and safety. But this decision will allow the Albanese Government to continue using indefinite detention to try to coerce people to return to danger.
“The Albanese Government knows that when people fear for their lives, there is no amount of time in detention that will convince them to consent to being deported. But it continues fighting tooth and nail to deny people their liberty instead of confronting the reality that indefinite detention is never acceptable, no matter the circumstances. And while the Government avoids reforming the detention system, the confusion, delays and further litigation will drag on for the people still stuck inside it.
“Every person has the right to lead a decent life with their family in freedom and safety. The decision to take a person's freedom should never be left to governments and politicians alone. The Albanese Government must fix this flawed system that leaves people to languish for years, and finally give people the chance to rebuild their lives.”
Background:
In November 2023, the High Court ruled that the Australian Government’s use of indefinite detention was unlawful and unconstitutional, where there was no real prospect that a person’s removal from Australia would be practicable in the reasonably foreseeable future.
Today’s decision comes as the Labor Government looks to rush through draconian new laws that would criminalise non-compliance with deportation.
Media contact:
Thomas Feng
Acting Engagement Director
Human Rights Law Centre
0431 285 275
thomas.feng@hrlc.org.au