EXPLAINER: Why the High Court’s Immigration Decision Was Important

The High Court of Australia in Canberra on Aug. 22, 2011. Torsten Blackwood /AFP via Getty Images

The government has won a crucial victory in the High Court which will prevent the release of as many as 200 more immigration detainees.

The case was brought by a detainee known by the pseudonym ASF17, an Iranian citizen, who sought his release from detention on the basis that he fears harm in Iran due to his bisexuality.

He has been held in immigration detention in Australia for almost a decade after his application for a protection visa was refused. His claim of potential persecution has never been assessed by the Home Affairs Department.

Iran is one of a handful of countries that refuse to accept the forced return of its citizens, and ASF17 has refused to participate in the administrative processes that may allow the government to deport him.

Had the Court found that people who refused to cooperate in their deportation proceedings should be released, as many as 200 detainees may have been freed.

This is more than the number that walked free after its 2023 decision that indefinite detention was illegal, which the Court found applicable when there was no real prospect of a person’s deportation becoming practicable in the reasonably foreseeable future.

The Court’s Decision

The question the Court had to decide on May 10 was whether indefinite detention was unlawful when a person did not cooperate with their deportation process due to fear of harm in their home country.

In its judgment, the High Court decided it was not unlawful, and that ASF17 should remain locked up. It noted that he 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.

Accordingly, it concluded that his detention was legal because there remained a real prospect of his removal from Australia—assuming he changed his mind—at some point in the future.

In particular, the Court noted that Iran wasn’t subject to a “protection finding,” which would have made deporting anyone there illegal, so it didn’t matter whether ASF17’s fear of harm was well-founded.

It did say, however, that the result would be different where a person is incapable of cooperating, such as if they suffered a mental incapacity or psychiatric illness.

This is the situation of another Iranian, AZC20, who suffered serious psychological harm due to being held in immigration detention for over a decade.

In a separate judgment, Justice Edelman expressly determined that there was no real prospect of deporting a person who lacked the capacity to cooperate. Accordingly, people like AZC20 cannot be lawfully kept in immigration detention.

Criticism from Human Rights Law Centre

The Human Rights Law Centre criticised the Court’s decision, saying it meant ASF17 was “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 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,” the Centre said.

“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.”