ASF17 v Commonwealth of Australia is a 2024 decision of the High Court of Australia, notable in Australian constitutional law for upholding the legality of indefinite detention under the Migration Act 1958 when tied to a non-punitive purpose.[1]

The court ruled that the indefinite detention of ASF17, an Iranian bisexual man refusing to cooperate with deportation to Iran, did not breach constitutional limits set in NZYQ v Minister for Immigration against punitive detention, as his removal remained reasonably achievable if he assisted authorities.[2] Unlike in NZYQ, where deportation was unfeasible, the High Court found ASF17’s detention lawful under the Migration Act for the purpose of facilitating his departure, despite Iran’s policy of rejecting involuntary deportees. ASF17 claimed a fear of persecution in Iran due to his sexuality, but prior rulings, upheld by the High Court, determined this fear lacked a genuine basis, stemming from an incident deemed fabricated, thus disqualifying him from a protection visa and finding no breach of non-refoulement (non-return) obligations.[3]

References

  1. ^ "High Court sides with government in case of Iranian man resisting deportation". ABC News. 2024-05-10. Retrieved 2024-05-10.
  2. ^ "Judgment summary: ASF17 v Commonwealth of Australia" (PDF). High Court of Australia. 10 May 2024. Retrieved 26 November 2024.
  3. ^ 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.").


Allikas: https://en.wikipedia.org/wiki/ASF17_v_Commonwealth_of_Australia
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