Labor sweats High Court clash over indefinite detention

Return to a potentially deadly situation in his home country, or remain in indefinite immigration detention in Australia.

That’s the choice facing an asylum seeker who has launched High Court action against the federal government in a move that could lead to the release of more detained immigrants.

Australia’s highest court ruled indefinite detention unlawful in November 2023, leading to the release of about 150 detainees and putting pressure on Prime Minister Anthony Albanese.

Some of the group had serious criminal convictions, including for murder and rape, while others faced less serious charges.

All of them served their time behind bars before being placed in immigration detention.

Following their release, they were subject to strict conditions including ankle monitors and curfews.

Several have since been arrested for breaching visa rules.

The latest challenge to immigration detention involves an Iranian citizen known as ASF17, who is fighting for freedom.

His case will be heard in April.

The government has attempted to send him back to Iran, but as a bisexual man, he could face the death penalty upon return.

The Commonwealth has not offered to remove him to any country but Iran, even though he is willing to go to a third country, his submissions say.

If the November 2023 ruling is expanded to cover indefinitely detained people who refuse to co-operate with Australian authorities, the Iranian man will have won and more immigrants could be freed.

But if the Commonwealth wins, the government will be able to block further releases.

Cabinet minister Murray Watt said some of those involved in legal actions were “found not to be refugees”.

“These people are simply refusing to move, despite having been found to be not refugees,” he told ABC radio on Monday.

“They should return to their home country and the legislation that we intend to introduce would make that crystal clear.”

The Australian Human Rights Commission defines a refugee as “a person who has been forced to leave their country because of war, violence, conflict or because they are being persecuted”.

“Persecution means being treated unfairly or cruelly because of who you are, what you believe or where you’re from,” their website states.

The opposition has lambasted the government over the release of detainees, igniting political tensions and anti-immigrant rhetoric.

Coalition immigration spokesman Dan Tehan said the federal government must succeed in its High Court appeal.

“My hope is that they’ll use the same logic that they used in the federal court and make sure that they win this case as well,” he told Sky News.