An asylum seeker known by the acronym ASF17 faces a choice between indefinite detention in Australia and returning to Iran where he may be persecuted, and possibly even executed, for expressing his sexuality. In a recent High Court judgment, Justice Edelman pointed to gaps in the Migration Act 1958 scheme, meaning a person with a genuine fear of persecution might not obtain a protection finding.

ASF17’s refugee claim

ASF17 arrived by boat in 2013 aged 27 and  has been kept in immigration detention for most of the last decade. In 2016 he was assessed under the ‘fast track’ process which has been criticised for removing the right to meaningful review. ASF17 claimed he was a stateless Faili Kurd but was found with an Iranian driver’s licence only issued to citizens of Iran. He did not raise his sexuality in his refugee  application.

Under 2015 amendments to the Migration Act, a protection visa must be denied if the applicant provides a ‘bogus document’ as evidence of identity. The Federal Circuit Court agreed the delegate had ‘no obligation to consider the applicant’s protection claims because he was bound to refuse the visa.’ ASF17 remained in immigration detention, refusing to cooperate with attempts to return him to Iran.

2024 High Court case

In NZYQ (November 2023) the High Court said continuing immigration detention with no real prospect of removal from Australia amounted to invalid ‘punishment’. ASF17 quickly applied to the Federal Court arguing for his own release.

ASF17 said his reasons for refusing to return to Iran included that he was bisexual and feared being harmed because of this. The Federal Court dismissed ASF17’s application, saying he was not telling the truth about why he could not be sent back to Iran. When ASF17 appealed, the Commonwealth had the matter removed to the High Court to decide if the NZYQ prohibition against indefinite detention applies where a person refuses to cooperate with their own removal from Australia.

The High Court upheld ASF17’s ongoing immigration detention, saying it was his own choice not to cooperate:

ASF17 could be removed to Iran if he cooperated in the process of obtaining the requisite travel documents from Iranian authorities. He has decided not to cooperate. He has the capacity to change his mind. He chooses not to do so.

The High Court said, therefore, his ongoing immigration detention was for the legitimate, non‑punitive purpose of eventually removing him from Australia, stating it ‘lay within the “power” of a detainee to bring their detention to an end by requesting to be removed’. It distinguished ASF17’s case from another asylum seeker known as AZC20, who also feared persecution in Iran and did not agree to return there. AZC20 had also spent a decade in immigration detention. As the High Court noted:

As his detention became more intractable he made multiple suicide attempts, engaged in a hunger strike and lost 25 kilograms, swallowed razor blades and took overdoses of drugs.

As with ASF17, Iran would not give AZC20 a travel document without his consent. In AZC20’s case, the High Court agreed his mental health issues meant he lacked capacity to consent. Accordingly, there was no real prospect of his removal from Australia and he had to be released from immigration detention in accordance with the principles in NZYQ. In ASF17’s case, as Justice Edelman said, ‘there has never been any suggestion that ASF17 lacks capacity in any way, unlike AZC20.’

Gaps in Australia’s refugee assessment process

The Human Rights Law Centre considers the ASF17 case ‘highlights the failings of Australia's refugee assessment processes, which have barred ASF17 from any meaningful opportunity to have his risk of harm arising from his sexuality recognised.’

Justice Edelman agreed aspects of ASF17’s refugee claim ‘have never been validly decided’ and that he ‘has never received a proper consideration of whether he is entitled to a “protection finding”’. As his fellow judges said, without a valid protection finding under the Migration Act:

… a claim on the part of a detainee facing removal to fear harm in a country … is insufficient to preclude removal to that country irrespective of whether that claim might be found on investigation to be genuine or well-founded. [emphasis added]

The High Court said there was no dispute ASF17 was bisexual and had not raised this in his original refugee claim due to ‘fear and stigma associated with such … conduct in Iran’. However, the Court said it could not ‘revisit the factual basis’ for rejection of his claim – despite all sides agreeing he could face the death penalty if returned to Iran. As Justice Edelman said, ‘he might be executed if he were to express, privately and consensually, what has been found to be his genuine sexual identity’. He noted ASF17’s statement that:

So if I didn't fear harm, I wouldn't have stayed in this camp for 10 years. I would have quickly gone back. Who ... will leave their family and prefer the prison? Who can do that?

Justice Edelman highlighted the ‘significant gaps’ in the Migration Act scheme ‘by which a person with a need for protection, including based upon a well-founded fear of persecution, might not obtain a protection finding.’ He underlined the following issues:

The circumstances … that give rise to a well-founded fear of persecution might arise after the protection visa application has been finally determined. Or, as in this case … an applicant might not raise the issue upon which they might arguably have a well-founded fear of persecution. Another gap, also evident in this case, is where … a protection [refusal] is found to have been flawed in one respect but the decision … is not quashed because refusal of the protection visa was required for other reasons (here, the provision of a bogus document).

The High Court referred to the ‘safety valve’ provisions in the Migration Act for cases like ASF17’s, noting that the Minister has ‘personal non-compellable powers to allow ‘eleventh-hour claims’ against removal from Australia.