ASF17 v Commonwealth of Australia

ASF17 v Commonwealth of Australia
ASF17 v Commonwealth of Australia
Court	High Court of Australia
Decided	10 May 2024
Citation	[2024] HCA 40
Case history
Related action	NZYQ v Minister for Immigration
Court membership
Judges sitting	Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
Case opinions
	Non-citizens who could be removed to their country of citizenship if they consented, yet refuse to consent despite being able, are not required to be released, due to removal being possible in the reasonably foreseeable future, unlike non-citizens in NZYQ, who could not be removed due to no country being willing to accept them.
Laws applied
	Migration Act 1958

Last updated February 28, 2025

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

↑ "High Court sides with government in case of Iranian man resisting deportation". ABC News. 2024-05-10. Retrieved 2024-05-10.
↑ "Judgment summary: ASF17 v Commonwealth of Australia" (PDF). High Court of Australia. 10 May 2024. Retrieved 26 November 2024.
↑ ASF17 v Commonwealth of Australia, 2024 HCA 19 , para. 65 (Edelman J)(High Court of Australia10 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] "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 Australia10 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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