Paul Cutler's Migration Case Law Blog
Failure to Cooperate
The legislative attempt to make failure to cooperate a criminal offence passed the Lower House but not the Senate on 26 March 2024. The Migration Amendment (Removal and other Measures) Bill 2024 creates a new class of people called “removal pathway non-citizens”. In some circumstances the Minister can give directions to those people to assist with their own removal from Australia. Their failure to cooperate will be an offence.
When all of this was newsworthy at the end of March there were media reports about a pending High Court case. That case is ASF17 v Minister which was heard on 17 April 2024 and judgment is reserved.
I have read the submission of the parties which are on the High Court website. Thankfully the High Court rules compel brevity.
Some brief facts
The appellant is a citizen of Iran detained in Australia. He has been detained by officers of the Commonwealth for over 10 years under the Migration Act 1958 (Cth). He is bisexual. The Commonwealth accepts that sexual intercourse between males is illegal in Iran and can attract the death penalty
The appellant’s case was that, at all relevant times, the Commonwealth: (1) knew Iran would not issue travel papers for the involuntary removal of one of its citizens from Australia; (2) knew the appellant would not go to Iran voluntarily; and (3) never considered possible pathways to removal from Australia other than to Iran. The appellant accepted that, if he cooperated by taking certain steps, he could be removed to Iran.
The Applicant had requested removal from Australia to some country other than Iran (to no avail). The stalemate between ASF17 and the Commonwealth is obvious. His failure to cooperate is making it impossible to remove him and there is nowhere else that he can be sent.
The issue – cooperate
As we now know from NZYQ detention can’t be indefinite and becomes unlawful when there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future. The issue before the High Court is basically about whether his continued detention is lawful or not when ASF17 is not cooperating in his removal.
There are a number of authorities referred to in the written submissions of the parties (see Al Masri (2003), WAIS (2002) SPKB (2003)) which basically say that an applicant can’t create a circumstance which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or cooperation to a particular avenue for removal. In effect, you can’t take advantage of a situation that you have created.
My personal view on this is that ASF17’s failure to cooperate will be fatal to his case. If that turns out to be correct I don’t see much point in making failure to cooperate an offence (which would just result in further lawful criminal detention).
Creative commons acknowledgment for the photograph.
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