Starting today, the High Court will hear a case to decide if the government's indefinite detention of a bisexual Iranian man is lawful, partly because he is unwilling to voluntarily assist with the government's attempts to deport him.
Authors
Sara Dehm
Senior lecturer, international migration and refugee law, University of Technology Sydney
Anthea Vogl
Associate professor, law, University of Technology Sydney
While the case turns on a narrow question of Australian constitutional law, it also raises urgent concerns about the human consequences of a flawed and discriminatory "fast-track" legal process for determining the status of asylum seekers who arrive by boat.
The case is tied to widely criticised immigration reforms the Albanese government is attempting to push through parliament. The reforms seek to punish people who do not actively cooperate in their own deportation, even in cases where people have good reasons for not cooperating or when certain countries, like Iran, do not accept the forced return of their citizens.
This draft legislation was prompted by the release of some 150 detainees from immigration detention following another High Court decision last year.
Refugees and refugee advocates will be watching today's case closely as it may result in further, important limits on the immigration minister's power to keep people indefinitely in detention. It could also affect up to 200 people currently being detained.
What the case is about
The case has been brought by a man known by the pseudonym "ASF17", who claims a genuine fear of serious harm if he is forcibly deported to Iran, a country where sexual activity between men is illegal and can be punished by death.
Even though ASF17 arrived by boat in July 2013, he was only permitted to apply for refugee status in August 2015. In 2017, a officer in the then-Department of Immigration and Border Protection rejected his refugee visa application.
While it seems that ASF17 did not explicitly mention his bisexuality to this official, he clearly stated he could not return to Iran because of "his problems". He has refused to cooperate with efforts to deport him since 2018.
Evidence shows there are many reasons why asylum seekers may not fully disclose the true extent of their fears of persecution at the initial stages of the asylum process. The reasons include trauma, shame, a lack of trust and uncertainty. The asylum process can also be especially stressful and re-traumatising for LGBTQI+ applicants.
ASF17 has consistently maintained his refusal to return to Iran, asking the government to send him "anywhere" but Iran. Despite this, the government has kept him in closed immigration detention since February 2014 and labelled him "non-compliant" for not voluntarily departing Australia.
Yet, this label of non-compliance fails to recognise that ASF17 may have compelling reasons for not complying with the efforts to deport him.
A flawed system for deciding asylum claims
Of specific concern is the fact ASF17 had his asylum claim determined by what is known as the "fast-track" process, a discriminatory and flawed legal process for determining - and, in practice, rejecting - refugee claims.
The "fast-track" system was intended to accelerate decision-making for the asylum claims of boat arrivals and limit their review options. It was introduced by the former Coalition government in 2014 and only applied to refugees who had arrived by boat between 2010-14. Concurrent policy changes also denied asylum seekers proper access to legal advice or translation services when preparing their claims.
The system resulted in a much higher rates of asylum claim rejection. Between 2015 and 2023, the Immigration Assessment Authority (IAA) - the body set up to review fast-track decisions - refused to find a person to be a refugee in 89% of cases.
Over the same period, success rates for Iranians before the IAA were just 16%, compared to 51% before the Administrative Appeals Tribunal (the non-fast-track process).
As we have previously argued, this high rejection rate says more about an unfair legal process designed to punish refugees than about the quality of their claims.
When in opposition, Labor clearly stated the fast-track process did not provide a "fair, thorough and robust assessment process". And last year, the government put forth legislation to completely abolish the fast-track system and create a new Administrative Review Tribunal.
If the High Court finds that ASF17's fear of being returned to Iran is a "good reason" for his unwillingness to participate in his own deportation, this will be an implicit recognition of the abject failures of the fast-track process.
An inhumane system of criminalisation
Last month, the government attempted to rush through draconian new legislation that would give the immigration minister sweeping new powers to force people like ASF17 to assist in their own removal from Australia. For example, the minister could order a person to apply for a passport or other documents from the country they're seeking to escape.
Shockingly, if a person does not comply with such a direction, they could receive between one and five years in prison and a hefty fine.
Last week, a group of 22 refugee Tamil, Kurdish and Iranian women made a submission to a Senate committee now considering the legislation. The authors all sought protection over a decade ago and have built lives, families and communities in Australia. They wrote:
We are not 'failed refugees' - we have been failed by a broken visa system which never offered us a fair chance. Now, the government wants to punish us further.
As other refugee law experts have pointed out:
These are extraordinary provisions without precedent in Australia. Even in the context of terrorism offences, a failure to comply with a direction does not result in mandatory imprisonment.
Future implications of ASF17's case
ASF17's case could have significant implications for other people who sought asylum in Australia and had their claims rejected by the fast-track process. This includes thousands of Iranians on precarious "final departure" visas who have been living in Australia for the last decade and others on stalled "removal pathways" in immigration detention.
The High Court case could also set a new precedent on when people must be released from immigration detention. At present, a person must be released if there is "no real prospect" of their deportation in the "reasonably foreseeable future". But it is unclear what this means in a range of situations, including where a person is unwilling or unable to participate in their own deportation for good reasons such as ill health or a genuine fear of persecution.
To compel those who have been subjected to Australia's punitive system of indefinite detention to participate in their own deportation and criminalise them for not doing so is unjust - and should remain unlawful.
Sara Dehm receives funding from the Australian Research Council.
Anthea Vogl receives funding from the Australian Research Council and the Commonwealth Department of Health and Aged Care.
