ASF17 v Commonwealth of Australia

ASF17 v Commonwealth of Australia is a 2024 decision of the High Court of Australia. It is an important case in Australian constitutional law.^[1]

The court held that the plaintiff's indefinite detention under the Migration Act did not exceed the constitutional limitation against detention for a punitive purpose, identified in NZYQ v Minister for Immigration. The plaintiff's detention was held to be justified as being for the non-punitive statutory purpose of removing an alien detainee from Australia. The court viewed that (unlike in NZYQ), deportation of ASF17 was reasonably capable of being achieved. His ongoing detention by the Commonwealth could therefore be authorised by the Migration Act.

The plaintiff was a bisexual Iranian man who refused to cooperate with Australian authorities to enable his own deportation to Iran. It had previously been found by a ministerial delegate he didn't have a well-founded fear of persecution; and a lower-court decision had held that ASF17 only alleged a fear of persecution on a narrow factual basis, arising from an incident which the primary judge found didn't actually occur. The High Court accepted the conclusion of the primary judge that ASF17 didn't have a genuine well-founded fear of persecution; and so wasn't eligible for a protection visa, nor would his deportation to Iran be prevented by any non-refoulment obligations within the Migration Act.^[2]

ASF17's deportation was held to be reasonably capable of being achieved, were he to decide to cooperate in undertaking the administrative processes necessary to facilitate his own removal to Iran. His cooperation was necessary due to Iran's policy of refusing to accept involuntarily deported citizens.

References

^ "High Court sides with government in case of Iranian man resisting deportation". ABC News. 2024-05-10. Retrieved 2024-05-10.
^ ASF17 v Commonwealth of Australia, 2024 HCA 19, para. 65 (Edelman J) (High Court of Australia 10 May 2024) ("The material before this Court suggests that before the primary judge ASF17 only alleged a fear of persecution due to his bisexuality on a narrow factual basis arising from an incident which the primary judge found did not occur. On that basis, the conclusion of the primary judge must be accepted. In circumstances in which ASF17 cannot be said to have a genuine subjective fear of persecution, and therefore cannot have a well-founded fear of persecution, the detention of ASF17 pending removal must be valid under ss 189(1) and 196(1) of the Migration Act.").

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[1] "High Court sides with government in case of Iranian man resisting deportation". ABC News. 2024-05-10. Retrieved 2024-05-10.

[2] ASF17 v Commonwealth of Australia, 2024 HCA 19, para. 65 (Edelman J) (High Court of Australia 10 May 2024) ("The material before this Court suggests that before the primary judge ASF17 only alleged a fear of persecution due to his bisexuality on a narrow factual basis arising from an incident which the primary judge found did not occur. On that basis, the conclusion of the primary judge must be accepted. In circumstances in which ASF17 cannot be said to have a genuine subjective fear of persecution, and therefore cannot have a well-founded fear of persecution, the detention of ASF17 pending removal must be valid under ss 189(1) and 196(1) of the Migration Act.").

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