Another 170 detainees who refuse to return to their home countries could soon be released to Australia, as the High Court prepares to rule on another landmark case today.
This case concerns an Iranian national, known as ASF17, who refuses to return to Iran because he could face the death penalty for being a bisexual man.
Labor tried to push far-reaching new migration laws through parliament in March, but the government was blocked in the Senate by the coalition, the Greens and crossbenchers.
Under the proposed legislation, tourists from at least five countries could be banned from traveling to Australia.
As a result, the latest legal challenge could now set a new precedent that could see even more prisoners released into the community.
Tourists from at least five countries could be banned from traveling to Australia if Labor’s tough migration laws are passed by parliament. The legislation was drafted ahead of the possible release of another 170 detainees
It follows the controversial NZYQ decision in November, which saw 154 prisoners – including murderers and rapists – released into the community.
By February 2024, the AFP had received at least 27 reports of crimes committed by some of those released prisoners.
In late April, 73-year-old Ninette Simons was beaten until she was unconscious in Girrawheen in Perth’s north. Released prisoner Majid Jamshidi Doukoshkan was charged over the incident.
Jamshidi Doukoshkan and two other attackers allegedly knocked 73-year-old Ninette Simons (above) unconscious in Girrawheen in Perth’s north on April 16
Who is ASF17?
ASF17 has been fighting deportation efforts since late 2018 after arriving by boat more than a decade ago.
ASF17’s lawyers argue that the government has detained him in a “punitive” manner and that it is up to the Commonwealth to “demonstrate a realistic prospect that removal from Australia will become feasible in the reasonably foreseeable future.”
His counsel Lisa De Ferrari SC told the High Court that her client had repeatedly asked federal officials to try to find another country to take him.
She quoted testimony from ASF17, where he said, “Even take me back to where you picked me up on the high seas,” and, “Even take me to Gaza… there I have a better chance of not being killed.” [than if I was sent to Iran.]’
But the Commonwealth argued that this is a moot point because Iran is the only possible country to which he could be deported.
It claims that his continued detention is a legally permissible consequence of its refusal to cooperate with efforts to return him to Iran.
Iran also has a policy of refusing to accept people who are forcibly returned.
Recently released immigration detainee Majid Jamshidi Doukoshkan (above), who is accused of preying on an elderly woman in her own home, has been in and out of court this year
The government’s lawyers argue that this case is completely separate from the NZYQ case, in which detainees had no way to return to their home countries.
In this case – and for the 170 detainees in a similar position – the only obstacle to their deportation is their own unwillingness to help, they said.
Immigration detention laws are causing headaches for the government
As part of the government’s efforts to prevent the release of detainees, it proposed introducing a prison sentence of up to five years for failed asylum seekers who refuse to cooperate in their deportation.
There was also a clause that would allow the government to ban all visitors from certain countries that do not facilitate unwilling deportations.
That could result in citizens of Iran, Iraq, Zimbabwe, Russia and South Sudan being banned from traveling to Australia at all, even for a holiday – although some exceptions would apply.
But the coalition worked with the Greens to prevent Labour’s bill from passing quickly in the Senate.
Instead, it was referred to a formal Senate investigation, which released its findings on Tuesday.
Although the committee recommended the bill pass the Senate, the coalition made several changes to protect against “potential unintended consequences.”
Immigration Minister Andrew Giles is keen to avoid another NZYQ Supreme Court fiasco
It follows the controversial NZYQ decision in November, which saw 154 prisoners released into the community
These changes state that the minister must inform parliament if she is going to use the power to issue a deportation procedure to someone.
The Greens want the bill to be completely rejected as it is ‘divisive and cruel’.
Human rights lawyers have described it as “the pure definition of discrimination” and “Trumpian”, while others questioned whether Labor would ever have supported the Coalition if the tables were turned.
The proposal caused a diplomatic headache for the government.
A spokesperson for the Russian Embassy in Canberra told Daily Mail Australia that including Russia in this proposed legislation is “quite far-fetched”.
“We can hardly recall a single instance in which the Australian government expressed concern about the removal of a Russian citizen who had no valid reason to stay, or asked us to cooperate in such a removal,” the spokesperson said angrily.
The Russian embassy has not been contacted or informed by the Australian government about the legislation or its possible consequences, the spokesperson added.
When contacted by Daily Mail Australia, the Iraqi embassy in Canberra appeared caught off guard and asked for information about the proposal.
Controversial Immigration Minister Andrew Giles said of the proposal: ‘What we are doing with this piece of legislation, this important piece of legislation, is filling a very important loophole.
‘[It is] a loophole that prevents a small cohort of people, who have no basis to remain in Australia, from cooperating with efforts to effect their removal.
“Important… these people are not refugees.”
Human rights lawyers have described the Albanian government’s proposed legislation as “the pure definition of discrimination” and “Trumpian”, while others questioned whether Labor would ever have supported the coalition had the tables been turned.