ASF17 v Commonwealth and the illusion of choice
28.11.2024
ASF17 v Commonwealth [2024] HCA 19 (ASF17 v Commonwealth) is the latest judgment of the High Court of Australia in the hotly contested space of immigration detention. With this case, the High Court reaffirmed that indefinite immigration detention remains available in Australia. Its permissible use has narrowed, however, when compared with the law prior to the High Court’s ruling in NZYQ v Minister for Immigration [2023] HCA 37 (NZYQ). In determining whether immigration detention is valid, ASF17 v Commonwealth tells us that the circumstances and motivations of the plaintiff is key. However, the ruling hinges on a troubling concept of ‘choice’, the consequence of which is that people who are at risk of persecution or death if they are deported can remain indefinitely detained if they refuse to be deported to such risks. This post examines the history leading up to the decision in ASF17 v Commonwealth, unpacking the facts and arguments made by the parties and how they were responded to by the Court. While the case is problematic, in that it permits indefinite detention based on choices that no person should be expected to make, it also offers insights which might serve to assist those seeking release from indefinite immigration detention in the future.
Background
As most readers will know, NZYQ overturned 20 years of legal precedent which had held that indefinite immigration detention was permissible in Australia. Indefinite immigration detention is a consequence of a statutory regime designed to facilitate deportation for those with no right to remain in Australia. The Migration Act 1958 (Cth) (Migration Act) requires that an ‘unlawful non-citizen’ be detained until they are either removed from Australia or granted a visa (under sections 189(1) and (196(1)). This framing means that, where someone cannot be deported and is not granted a visa, there is no legislative limit on the length of time they can be detained. Detention could potentially last for the rest of one’s life without having been found guilty of any crime. This is a particular risk for people who maintain that they have a well-founded fear of persecution, or otherwise are at real risk of serious harm if deported, but have failed to secure a protection visa.
The Migration Act was first interpreted as enabling indefinite detention in Al-Kateb v Godwin (2004) 219 CLR 562 (Al-Kateb). In that case, there were two challenges to the detention, one based on statutory construction and the other on the constitutional limits of executive detention. The High Court held that ongoing detention of a stateless Palestinian man, who could not be deported because there was no state that was willing to receive him, was permitted both by the legislation and the Constitution. Usually, the constitutionally entrenched separation of powers prohibits detention unless there is a criminal finding of guilt by a properly constituted court. In Al-Kateb, the High Court held that the separation of powers was not necessarily contravened by indefinite immigration detention. Detention that continued to be for the purposes of deportation remained valid, even if deportation was not possible in the foreseeable future due to diplomatic obstacles.
With NZYQ, the High Court overruled the constitutional finding in Al-Kateb, confirming that immigration detention was only constitutionally valid so long there was a real prospect that the purpose of detention could be fulfilled; that is, of removal becoming practicable in the reasonably forerseeable future. Thus, if the Commonwealth cannot identify a country that will take the detainee, it is likely that the detention is not constitutionally valid. The case has unleashed what has been predicted to be years of litigation, as detainees test the parameters of when deportation should be considered ‘practicable in the reasonably foreseeable future’.
This question was partially answered with ASF17 v Commonwealth, which clarified what NZYQ means for people who do not or cannot cooperate with efforts to deport them (with the assistance of an intervention by AZC20, as explained below). While ASF17 v Commonwealth does not resurrect Al-Kateb, it clarifies that the constitutional limit recognised by NZYQ does not assist people who choose not to cooperate with deportation. For those who choose not to cooperate, detention remains valid, as the purpose could be fulfilled in the reasonably foreseeable future if the detainee changed their mind and chose to cooperate. If the individual is unable to cooperate, however, this case tells us that detention is unconstitutional, as the purpose of the detention is not reasonably likely to be fulfilled in the reasonably foreseeable future. The depiction of ‘choice’, however, could be illusory, as recognised by Edelman J in his separate judgment, where the ‘choice’ that the detainee is making is to avoid putting themselves at risk of persecution or death.
Facts of ASF17 v Commonwealth and the decision in AZC20
ASF17’s circumstances are set out in the judgment of the Federal Court of Australia concerning the habeas corpus application that he lodged within a week of NZYQ being handed down, ASF17 v Commonwealth (2024) 300 FCR 530 (ASF17 v Commonwealth). He had been detained in immigration detention for many years since his arrival in Australia as an Iranian citizen in 2013, other than a brief period when he was released in 2013 and 2014. He had applied for a protection visa, arguing that he would be at risk if he was returned to Iran due to his Christian religion, Kurdish ethnicity and his opposition to the Iranian government’s treatment of women. This application was unsuccessful, as were subsequent appeals. Efforts to deport ASF17 commenced in 2018 after the final determination of his protection application, but ASF17 did not cooperate with those efforts. Given Iran’s policy of not accepting involuntary removals, he could not be involuntarily deported there. There was no other country that he could be deported to, and so he remained in immigration detention.
In the Federal Court habeas application, ASF17 explained that he had a good reason for refusing to cooperate with his deportation. Despite his protection application having failed, he maintained that he would be at risk if he was returned to Iran on the basis of his bisexuality: an issue that had not been examined in his initial protection claim. He did not, however, seek to have the protection finding reopened, and given the restrictions regarding review of protection applications (discussed below), it would have been difficult or impossible for him to do so. He offered the following details to substantiate his claim: he had been found in bed with another man by his wife in Iran and had had sex with men in immigration detention since arriving in Australia. He had not referred to his sexuality during his initial protection application, however, as he feared that he would be at risk from the Iranian authorities or other Iranians in the Australian immigration detention facility if they found out (at [117] HCA).
The Commonwealth did not challenge ASF17’s sexuality, and agreed that this would give rise to risk in Iran, but maintained it was entitled to deport him and he should be detained pending his cooperation with that deportation. Justice Colvin of the Federal Court did not accept that ASF17’s wife had found him in bed with another man, but otherwise accepted that he was bisexual and had had sex with men in immigration detention, and that he had not told anyone about his sexuality other than the men he had slept with. Justice Colvin also did not accept that ASF17 was being truthful in the reasons that he provided in not wanting to return to Iran. There was no medical or other reason offered that he could not cooperate with his deportation to Iran and the risk arising from his sexuality related only to an aspect of ASF17’s account which was not accepted, namely that he had been found in bed with another man, according to Colvin J. Rather that holding a subjective fear of return, for these reasons Colvin J held that ASF17 was choosing not to cooperate because he wanted to remain in Australia (at [130] FCA). The habeas application was dismissed, as the deportation remained reasonably practicable if ASF17 chose to cooperate, and thus the constitutional limit set down in NZYQ had not been reached.
Some weeks prior to ASF17’s Federal Court hearing, another Iranian citizen known as AZC20 had been released from immigration in similar circumstances by the Federal Court in AZC20 v Secretary, Department of Home Affairs (No 2)[2023] FCA 1497. AZC20 had been detained in immigration detention continuously since his arrival by boat in 2013. His application for a protection visa had been finally rejected in 2021 by the Immigration Assessment Authority (IAA). During his time in detention, he had repeatedly attempted suicide and engaged in acts of self-harm; evidence that was not challenged by the Commonwealth. He had also made repeated requests for removal to places other than Iran, including to an offshore processing country, Iraq and even to international waters. AZC20 presented medical evidence to the Court that he suffered from emotional dysregulation and post-traumatic stress disorder, which was exacerbated by his extended detention. On the basis of this evidence, the primary judge was “not persuaded that it is realistically within [AZC20’s] power to change his approach to one of cooperation with removal to Iran” (at [65(d) FCA].
When ASF17’s appeal was removed to the High Court, AZC20 successfully sought leave to intervene: given the similarity of their cases, AZC20 argued that he would be directly impacted by the High Court’s ruling in ASF17 v Commonwealth. The key difference between their cases was the reason for the lack of cooperation.
Protection visas in Australia
If someone is in Australia without a valid visa, s 189(1) and s 196(1) of the Migration Act 1958 (Cth) require them to be detained pending deportation or the granting of a visa (as discussed above). Involuntary removal can be prevented under s 197C(3) of the Migration Act only where the applicant has been granted a protection visa. If an application for a protection visa is unsuccessful at first instance, there are a series of appeal avenues available which are increasingly restrictive. There can be strict limits on adding further information to claims after the initial assessment, and during the period when the IAA was determining appeals, there were often no oral hearings conducted for applicants.
Once an application has been finally determined against an applicant, they must leave Australia, and be detained pending deportation. They cannot restart the application process or apply for another protection visa without the Minister’s consent. The Minister cannot be compelled to consider an application and the Minister’s (non-)decision cannot be reviewed. The Minister does have the power to grant a visa outside of this process, but again, this power is non-compellable and non-reviewable. In ASF17 v Commonwealth, the High Court acknowledged that the statutory regime contemplated deporation where a detainee had a well-founded fear of harm in the receiving country (at [38]).
High Court arguments
In the High Court, ASF17 repeated the two arguments made at the Federal Court: firstly, that he was not under a statutory duty to cooperate with his removal in keeping with the NZYQ limitation on immigration detention; secondly, that he had a good reason not to cooperate, as his life would be at risk if he was returned to Iran due to his sexuality. He claimed that ‘non-cooperation can operate to negate a real prospect of removal being practicable in the reasonably foreseeable future if the detainee has a “good reason” for not cooperating’ (at [27] HCA). ASF17 did not appeal any of the factual findings of the Federal Court, including the findings by Colvin J regarding his credibility and that he did not hold a subjective fear of harm if he were returned to Iran.
AZC20 adopted a narrower form of ASF17’s second argument in his intervention. Specifically he argued that the question of whether deportation will become practicable in the reasonably foreseeable future depends on the reason for the non-cooperation. In AZC20’s case, the reason was his poor mental health which was exacerbated by his lengthy detention. AZC20 argued that this was an appropriate interpretation of the NZYQ limitation which should be adopted by the High Court.
ASF17 and AZC20: are the reasons for not cooperating reasonable?
The High Court held that ASF17 was choosing not to cooperate with his deportation, meaning that his detention conformed with the Constitution: as the plurality explained, ‘continuing detention for a non-punitive purpose that is occurring because of a voluntary decision of the detainee cannot be characterised as penal or punitive’. This built on Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 and Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285, in which the High Court held that ongoing detention could not be considered punitive if it related to the conduct, or ‘choice’, of the detainee. Specifically, where the detainee could take action to facilitate their deportation and chose not to, that deportation remained reasonably practicable, notwithstanding the fact that it was unlikely to occur. Indefinite immigration detention thus remains a feature of Australian law.
The High Court distinguished this finding from the facts in AZC20’s intervention, specifically that AZC20’s mental ill-health meant that he could not make the choice to assist in his own deportation, meaning that his deportation was not reasonably practicable and he could not be detained. While not making findings on AZC20’s arguments (as he was not a direct party to proceedings), the Court acknowledged that having capacity to cooperate is relevant in determining whether deportation was in fact reasonably practicable or not (at [48] HCA).
When is a choice, no choice at all?
There are at least two ways to interpret this ruling. On one reading, the High Court is confirming that people cannot use the courts to orchestrate their release into the Australian community when they are not entitled to be there. On another, the High Court is introducing a troubling concept of cooperation and choice, whereby the court sees one’s choice not to expose themselves to persecution or a risk of death by being deported as obstruction of an otherwise legal deportation, thereby falling short of the limitation set down by NZYQ.
As Edelman J noted: ‘a conclusion that “cooperation” is required does not use the concept of “cooperate” in its common meaning of “to work or act together or jointly”… Rather, what appears to have been meant by “cooperate” is “subjugate”: “to bring under complete control”’ (at [89] HCA, references omitted). He went on to opine that, when asking people to cooperate with their own removal from Australia, the existence of a well-founded fear of persecution or severe harm is relevant to their ‘choice’ as to whether to cooperate or not. ASF17’s ‘choice’ was between remaining indefinitely detained in Australia and returning to a risk of imprisonment, torture and death for his sexuality. Despite these observations, however, Edelman J concurred that ASF17’s ongoing detention was valid. Given ASF17 had not challenged the Federal Court’s findings that he was not credible and was motivated to remain in Australia, rather than by fear of persecution, Edelman J had no basis on which he could overturn the decision below. This is despite the Federal Court accepting ASF17’s sexuality as bisexual, and the Commonwealth conceding that sex between men is illegal in Iran, punishable by the death penalty (at [118] HCA).
Seen through this lens, this case is problematic. If a person was seeking protection from being returned to Iran on the basis of their sexuality, it is likely that they would be successful if the decision-maker believed they were bisexual, as the courts accepted here. However, the question that the courts were examining in this case was different. The Federal and High Courts were not determining whether ASF17 had a well-founded fear of persecution or faced a real risk of serious harm (the tests for protection visas). Rather, they were assessing whether there was a realistic possibility of him being deported, having failed in his application for a protection visa.
In part, the problem here relates to the flaws in the protection visa application process under which ASF17’s application was assessed. The claim that he made did not include all of the bases on which he ultimately claimed protection, because, he said, making such a claim could put him at further risk. The limits in this system mean that the persecution he feared if returned to Iran, based on his sexuality, could not be assessed under the protection visa framework without Ministerial approval. The assessment made at the habeas stage does not allow for detailed examination of whether the risk feared was well-founded, being limited to whether the reason for non-cooperation were valid or not. By offering such detailed reasons for rejecting ASF17’s claim, however, the High Court has again indicated that it will interrogate both the form and substance of the Commonwealth’s approach to the exercise of Executive power.
This case does provide useful guidance for litigants seeking release from indefinite immigration detention. Clearly, it is important for all applicants for protection visas to put their claims for protection fully in the first instance wherever possible. Where that has not been done, applying within the system for additional information to be considered, and ultimately applying to the Minister to intervene if needed, will assist in ensuring that all bases for protection are properly assessed. Where there are no prospects of a protection claim being successful, but the detainee is not willing to cooperate with their deportation, the reasons for non-cooperation is likely to be key. Where possible, medical evidence should be offered to demonstrate any incapacity to cooperate. Without supporting evidence, and other efforts to have bases for risk of removal reconsidered or to secure release or removal to other countries, detainees may remain at risk of indefinite immigration detention.
Subsequent developments
In the wake of NZYQ, ASF17 v Commonwealth and a subsequent case, YBFZ v Minister for Immigration [2024] HCA 40, the government has moved to introduce a package of legislation which would expand both deportation powers as well as search and seizure powers in immigration detention centres. In a joint statement released on 27 November 2024, a number of refugee sector and human rights organisations drew attention to the human rights consequences of these proposed laws, as well as the limited time allocated for scrutiny by Parliament and affected stakeholders.
The author would like to thank Scientia Professor Jane McAdam for reviewing an early draft of this post, and the editors for their helpful suggestions. Any errors remain the author’s.
Anna Talbot teaches and researches in public international law, focusing on international human rights law and international refugee law, and maintains an interest in Australian constitutional cases concerning the separation of powers. She is completing a PhD with the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW Sydney on how the right to life can protect people displaced in the context of climate change. She also coordinates the Strategic Litigation Network for the Kaldor Centre, connecting lawyers and academics to support litigation relevant to refugees. Prior to entering the academy, Anna conducted complex strategic human rights litigation in various courts throughout Australia, the United Kingdom and Europe regarding immigration detention, citizenship, offshore processing and post-colonial reparations. She also represented Amnesty International at the United Nations in Geneva and New York, focusing on expert human rights mechanisms.
Suggested citation: Anna Talbot, ‘ASF17 v Commonwealth and the illusion of choice’ (28 November 2024) <https://www.auspublaw.org/blog/2024/11/asf17-v-commonwealth-and-the-illusion-of-choice>