An Iranian man who was detained by immigrants told the Supreme Court through his lawyer that he would rather be sent to Gaza than return to Iran for fear of dying if he returned to Iran.
The man, known as ASF17, came to Australia by boat 10 years ago and has been in immigration detention ever since. He was denied refugee status and had exhausted all legal means to seek asylum.
Since 2018, he has resisted attempts by Australian authorities to return him to Iran, including on the grounds that he is a stateless ethnic Fali Kurd, Christian, and bisexual. In Iran, homosexuality is punishable by death.
His lawyer, Lisa de Ferrari, said in court on Wednesday that his client had been asking federal authorities to send him to a third country, but the federal government had refused.
De Ferrari quoted his previous confession in the Federal Court case, in which she told the court that her client had even asked to be deported "when you found me on the high seas".
De Ferrari quoted his client as saying: "Even send me to Gaza. He said he had "a greater chance of being alive" there than being "repatriated to Iran."
What is this case about?
The ASF17 case is based on a previous Supreme Court decision called NZYQ, which held that indefinite immigration detention is unlawful if there is no likelihood of deportation in a "reasonably foreseeable future."
The constitutional question facing ASF17 is whether his continued detention is punitive, i.e., unlawful.
The federal government thinks it is not, because he can choose to leave, but he simply refuses to cooperate. De Ferrari said on Wednesday that the argument was "like asking someone to jump off the 10th floor".
If the High Court's ruling is in favour of ASF17, the outcome could result in the release of more than 200 immigration detainees, with the potential for wider impact on the immigration system.
De Ferrari argues that if an immigration detainer refuses to leave Australia for any reason, they should be released into the community.
Judge Jacqueline Gleeson asked in court on Wednesday, "So your argument is that any detainee can manipulate the system by opposing deportation, and as a result, their detention is punitive?"
De Ferrari replied: "Your Excellency, I don't think it's a manipulation system. ”
Last month, the federal government tried to rush through draconian legislation in parliament that would empower the immigration minister to deport non-citizens and imprison some who did not comply.
According to de Ferrari, the federal case is based on three possible outcomes: "Iran changes its policy, the federal government changes its policy, or you change your mind." ”
"The chances of these three things happening are slim to none," she said in court. ”
"If none of these three things can happen, how can his detention not be punitive?"
What are the arguments of the federal government?
Deputy Attorney General Stephen Donaghue called claims that the federal government failed to transfer ASF17 to a third country "puzzling."
"We did try to find other places, but it's not surprising that for an Iranian citizen who can be sent back to Iran, we can't find any other place," he said in court on Wednesday. ”
Given that ASF17 is not a refugee, Australia is not obliged to pursue a third-country resettlement package. However, Australia also has a policy of not deporting citizens of a country to a country that does not accept forced repatriation, such as Iran.
"If we really intend to transfer people to countries where they do not have the right of residence or to stay for a long time, it will create diplomatic tensions and lead to the risk of deportation (forcing refugees or asylum seekers to return to a country where they may face irreparable harm)," Donahue told the court. ”
He argued that it was debatable whether ASF17 was genuinely concerned about persecution for returning to Iran.
"There are very, very many refugee claimants who are really worried about the consequences of returning to their home country, but that's not an objective and sufficient reason," he said in court. ”
"If your ruling upholds ASF17, it turns the Federal Circuit into a refugee arbitration tribunal. ”
Previous court rulings
At a federal court hearing before the Supreme Court heard the case, the federal government agreed that Iran was the only country to which ASF17 could be expelled.
In that preliminary decision, the court found that AFS17's evidence was "inconsistent, illogical and lacked any credibility".
While the court recognized that he was bisexual, it rejected ASF17's claim that his wife found him sleeping with a man in Iran, or that he fled the country as a result. The judge also did not accept that he had converted to Christianity.
In his judgment in January, Federal Court Judge Craig Colvin wrote: "At all times, his actions have been based on the single goal of obtaining permission for release to the Australian community, rather than the economic hardship of being forced back to Iran." ”