An Iranian man in immigration detention would rather be sent to Gaza than returned to Iran where he fears certain death, his lawyer has told the High Court.
The man, , came to Australia by boat a decade ago and has been in immigration detention since. He’s been denied refugee status and has exhausted all legal options for protection.
Since 2018, he has resisted Australian authorities’ attempts to deport him to Iran, for reasons including his status as a stateless Faili Kurd, a Christian, and a bisexual man. Homosexuality is punishable by death in Iran.
His lawyer, Lisa de Ferrari, told the court on Wednesday he had consistently asked federal authorities to send him to a third country but the Commonwealth had refused to do so.
Quoting his testimony from an earlier Federal Court case, Ferrari told the court her client had even asked to be returned “to the high seas where you found me”.
Ferrari quoted that her client at the time said: “Even take me to Gaza”, and that he had said he had a “better chance of not being killed” there than if he was sent “back to Iran”.
What’s at stake here?
ASF17’s case , known as NZYQ, in cases where there’s no prospect of deportation in the “reasonably foreseeable future”.
The constitutional question at play for ASF17 is whether his ongoing detention is punitive, and therefore illegal.
The Commonwealth argues it’s not, because he has the option of leaving and is simply refusing to cooperate.
ASF17’s lawyer, Lisa de Ferrari, pictured in 2018. Source: AAP / David Crosling
De Ferrari on Wednesday said that argument was “like asking someone to jump from the 10th storey of an apartment block”.
If the High Court rules in ASF17’s favour, it could trigger the release of up to 200 others in immigration detention and could have broader ramifications for the migration system.
De Ferrari argued that if someone in immigration detention refused to be removed from Australia for any reason, they should be released into the community.
“So your argument is that any detainee could manipulate the system by objecting to removal, and that would lead to the result that their detention is punitive?” Justice Jacqueline Gleeson asked in court on Wednesday.
“Your honour, I don’t accept that would be manipulating the system,” de Ferrari replied.
Last month the federal government to give the immigration minister powers to deport non-citizens and jail those who fail to comply.
De Ferrari argued the Commonwealth’s case rested on three possible outcomes: “that Iran changes its policy, the Commonwealth changes its policy, or you change your mind”.
“There’s nothing but the merest fanciful prospect of any of those three things happening,” she told the court.
“How can his detention not be punitive when there’s never been any prospect of any of those three things happening?”
What is the Commonwealth’s argument?
Solicitor-general Stephen Donaghue labelled assertions that the Commonwealth had failed to remove ASF17 to a third country as “perplexing”.
“We actually did try to find somewhere else, but unsurprisingly for a citizen of Iran, who can be returned to Iran, we couldn’t find any,” he told the court on Wednesday.
Given ASF17 is not a refugee, Australia is not obliged to seek third-country resettlement options. However, Australia also has a policy of not returning citizens to countries that do not accept forcible removals, like Iran.
“If we did start removing people to those countries [where they don’t have a right to residency or long term stay] that would create diplomatic tensions and lead to risk of refoulment (forcing a refugee or asylum seeker to return to a country where they will be at risk of irreparable harm),” Donaghue told the court.
Solicitor-General Stephen Donaghue pictured in 2017. Source: AAP / Luis Ascui
He argued ASF17’s genuine fear of persecution if returned to Iran was debatable.
“There are many, many refugee applicants who genuinely fear what would happen on their return but that is not an objectively well-founded reason,” he told the court.
“If your honours rule in favour of ASF17, you will be turning the Federal Circuit Court into a refugee tribunal.”
What did an earlier court ruling find?
In a Federal Court hearing that preceded the High Court case, the full court agreed with the Commonwealth that Iran was the only country ASF17 could be deported to.
In that primary judgment, the court found AFS17’s evidence was “inconsistent, illogical and lacking in any credibility”.
While the court accepted his bisexuality, it rejected ASF17’s claims that his wife had caught him in bed with a man in Iran, or that he had fled the country because of that. Nor did the judge accept that he had converted to Christianity.
“At all times his behaviour was consistent with a singular focus upon being able to secure permission to be released into the Australian community rather than face economic difficulty if he was made to be returned to Iran,” Federal Court Justice Craig Colvin wrote in his judgment in January.
