An Iranian asylum seeker's indefinite detention is not punitive, Australia's solicitor-general has argued, because he would be freed if he co-operated with attempts to deport him to his home country, despite his fears of the death penalty.
The detained 37-year-old man, known as ASF17, has taken his legal bid for freedom to the High Court in a case that could determine the fates of hundreds of immigrants and government policy.
Authorities have attempted to deport him to Iran every six months since 2018, when his asylum seeker visa was refused.
But as a bisexual man, ASF17 could face the death penalty upon return.
As a result, he has refused to co-operate and Solicitor-General Stephen Donaghue KC says this means his detention is not punitive.
"Where a person can be removed with their co-operation, that can’t be characterised as punitive, whether or not the reason for non-co-operation was a genuine fear of harm," he told the court on Wednesday.
ASF17 had previously urged the government to remove him to any country other than Iran.
“Take me back to where you picked me up in the high seas, even take me to Gaza,” the asylum seeker said during a Federal Court cross-examination, his lawyers recalled on Wednesday.
“I have a better chance there of not being killed than if you take me to Iran.”
Dr Donaghue argued refugee applicants can genuinely fear what may happen on return to their home countries, but this may not be "objectively well-founded".
The government had investigated the possibility of deportation to a third country, but this could inflame diplomatic tensions or lead to the risk of refoulement, Dr Donaghue said.
ASF17's barrister Lisa De Ferrari SC said without being offered other deportation options, her client remained indefinitely detained.
“They’ve straitjacketed themselves and now they’re turning the table on my client, saying ‘you’ve been very unreasonable by not helping us get you to Iran’.
“How can it not be punitive (when) there’s never any end point?”
His case springs from a November High Court ruling, which found it was unlawful to indefinitely detain people with no prospect of deportation.
About 150 immigration detainees were released as a result.
The appellant wants this expanded to cover people who refuse to co-operate with authorities on their deportation.
The Federal Circuit Court previously ruled the continued immigration detention of a Baha'i man from Iran was unlawful and he was immediately released.
“This is another case that says, whatever has been happening to people who are vulnerable and have come to Australia for protection, they cannot be indefinitely detained," his lawyer Alison Battisson told AAP.
“It creates a precedent that somebody has non-refoulement obligations owed to them."
Baha'is are a persecuted religious minority in Iran and Australia has signed international human rights treaties which include the principle of non-refoulement, meaning refugees cannot be sent back to countries where they face persecution.
ASF17, who is not Baha'i, first arrived on Australian shores by boat in 2013 and has been in detention for a decade.
There are about 200 other people in a similar situation, and Human Rights Law Centre legal director Sanmati Verma said the government was using indefinite detention as a way to "coerce people into returning to danger".
In an attempt to pre-empt ASF17's hearing, the government tried to ram through laws to prevent a release of people from immigration detention.
Under the proposed laws, which could affect more than 4000 people, those who refuse to co-operate with the government over their deportation could spend up to five years in prison.
The legislation would also give the home affairs minister power to ban visa classes of relatives of asylum seekers who come from blacklisted countries that do not accept deportees.
But it was blocked in parliament and sent to a senate inquiry.
The High Court has adjourned and is yet to decide when it will hand down its decision.
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