The Australian High Court passed a judgement on Friday that dismissed an Iranian asylum seeker’s plea to be released from immigration detention and enter the country. 

The Iranian asylum seeker, applicant ASF-17, applied to the Federal Court of Australia for a writ of habeas corpus in 2023 on the basis that his continuing detention exceeded the constitutional limitation identified in the orders of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs released the week prior.

The applicant has been refusing to cooperate with the process of being removed from Australia to Iran since 2018, arguing that he would be at risk of persecution for his sexual orientation and religious beliefs. 

The applicant arrived unlawfully in Australia in 2013 and applied for a Safe Haven Enterprise Visa (SHEV) in 2015. However, his application was refused and rejected again by a delegate of the Minister for Immigration and Border Protection in 2017. His final determination by the Australian Federal Court rejected his application in 2018. This authorised the Department of Home Affairs to remove the applicant from Australia under section 198(6) of the Migration Act 1958 (Cth). 

The applicant was unable to identify any other country where he might be able to stay in the long term. The Department documented his stance as “intractable,” in 2022, describing the difficulty and only option was to deport him to Iran, where he was a citizen. 

The court noted that the Department has a policy of not removing anyone to a country in respect of which they have no right of residency or long-term stay “the third country removal policy.” Accordingly, the court also noted the difficulty in Iranian citizens gaining entry into the country as they cannot enter without a travel document issued by Iranian authorities. However, Iranian authorities have a longstanding policy of not issuing travel documents to involuntary returnees. 

The High Court ruled that the applicant’s case was different from the NZYQ case, reasoning that his continued detention was the result of his own decision not to cooperate in his deportation. For Australia to permissibly remove a detainee from the country, the court determines “whether the country has taken practically available steps which can realistically be predicted to result in the removal of the detainee in the reasonably foreseeable future.” Practically available steps include “administrative processes directed to removal which require the cooperation of the detainee and in which the detainee has the capacity to cooperate.” The applicant’s refusal to cooperate does not undermine the practical availability of the steps.

Additionally, it was ruled there was no real threat to his safety. Even though the applicant was bisexual, the primary judge held that the applicant’s claim of fear of persecution based on his sexuality was the consequence of him being caught by his wife in bed with another man, and rejected his claim accordingly.