Indefinite detention 'not punitive': government lawyer

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.

Lisa De Ferrari (file image)
Lisa De Ferrari said Australia had forced her client to remain in detention indefinitely.

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.

High Court signage (file image)
The High Court has adjourned and is yet to decide when it will hand down its decision.

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.

Lifeline 13 11 14

Fullstop Australia 1800 385 578

What is AAPNews?

For the first time, Australian Associated Press is delivering news straight to the consumer.

No ads. No spin. News straight-up.

Not only do you get to enjoy high-quality news delivered straight to your desktop or device, you do so in the knowledge you are supporting media diversity in Australia.

AAP Is Australia’s only independent newswire service, free from political and commercial influence, producing fact-based public interest journalism across a range of topics including politics, courts, sport, finance and entertainment.

What is AAPNews?
The Morning Wire

Wake up to AAPNews’ morning news bulletin delivered straight to your inbox or mobile device, bringing you up to speed with all that has happened overnight at home and abroad, as well as setting you up what the day has in store.

AAPNews Morning Wire
AAPNews Breaking News
Breaking News

Be the first to know when major breaking news happens.


Notifications will be sent to your device whenever a big story breaks, ensuring you are never in the dark when the talking points happen.

Focused Content

Enjoy the best of AAP’s specialised Topics in Focus. AAP has reporters dedicated to bringing you hard news and feature content across a range of specialised topics including Environment, Agriculture, Future Economies, Arts and Refugee Issues.

AAPNews Focussed Content
Subscription Plans

Choose the plan that best fits your needs. AAPNews offers two basic subscriptions, all billed monthly.

Once you sign up, you will have seven days to test out the service before being billed.

AAPNews Full Access Plan
Full Access
AU$10
  • Enjoy all that AAPNews has to offer
  • Access to breaking news notifications and bulletins
  • Includes access to all AAPNews’ specialised topics
Join Now
AAPNews Student Access Plan
Student Access
AU$5
  • Gain access via a verified student email account
  • Enjoy all the benefits of the ‘Full Access’ plan at a reduced rate
  • Subscription renews each month
Join Now
AAPNews Annual Access Plan
Annual Access
AU$99
  • All the benefits of the 'Full Access' subscription at a discounted rate
  • Subscription automatically renews after 12 months
Join Now

AAPNews also offers enterprise deals for businesses so you can provide an AAPNews account for your team, organisation or customers. Click here to contact AAP to sign-up your business today.

SEVEN DAYS FREE
Download the app
Download AAPNews on the App StoreDownload AAPNews on the Google Play Store