Paul Cutler's Migration Case Law Blog

The High Court gave its judgment in the failure to cooperate case today (10 May 2024 – see ASF17 v Commonwealth of Australia [2024] HCA 19). In my earlier blogpost I expressed my view that ASF17’s failure to cooperate would be fatal to his case. It turns out that my prediction was correct. If you only read a few paragraphs in the judgment it should be these ones (with my underlining added):

THE POSITION OF ASF17

[7] For the purpose of facilitating removal of ASF17 from Australia, officers of the Department conducted regular interviews with him from 2018. Throughout those interviews, he consistently told officers that he would not voluntarily return to Iran. He consistently refused to sign a request for removal or to engage with Iranian authorities in planning for his removal. He repeatedly told officers that he would agree to be sent to any country other than Iran. However, he did not suggest that there was any country to which he might be removed other than Iran.

[8]  Iranian citizens cannot enter Iran from Australia without a travel document issued by Iranian authorities and Iranian authorities have a longstanding policy of not issuing travel documents to involuntary returnees.

[9]  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”). Considerations underpinning the third country removal policy include the potential for diplomatic controversy were someone to be removed to a country which had not agreed to accept them and the lack of any basis for generally considering that a country would agree to accept anyone who has no right of residency or long-term stay in that country.

[10] The consistent refusal of ASF17 to cooperate in facilitating his removal from Australia to Iran combined with his failure to identify any third country in which he might have a right of residency or long-term stay therefore resulted in an impasse. His position was described in a record of the Department in 2022 as “intractable”.

and….

EFFECT OF HIS FAILURE TO COOPERATE 

[42] The short point is that, conformably with the Lim principle, continuing detention for a non-punitive purpose that is occurring because of a voluntary decision of the detainee cannot be characterised as penal or punitive. The non-punitive statutory purpose of removing an alien detainee from Australia under s 198(1) or s 198(6) of the Act remains a non-punitive purpose that is reasonably capable of being achieved if and for so long as removal could be achieved in the reasonably foreseeable future were the detainee to decide to cooperate in the undertaking of administrative processes necessary to facilitate that removal.

and….

[48] 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.

[49]  On those undisturbed findings of primary fact, the evaluative characterisation of the primary judge, that there is a real prospect of removal of ASF17 from Australia to Iran becoming practicable in the reasonably foreseeable future, such that the constitutional limitation identified in NZYQ has not been exceeded, is correct. ASF17’s continuing detention under ss 189(1) and 196(1) of the Act does not exceed the temporal limitation on the valid application of those provisions imposed by Ch III of the Constitution.

[50]  The appeal will be dismissed with costs.