Judges will be turning the courts into a “refugee tribunal” if they allow people who don’t co-operate with moves to deport them to walk free from immigration detention, the Commonwealth argued in the High Court.
Australia also risked diplomatic tensions by resettling people in countries where they didn’t belong, the court heard.
Solicitor-General Stephen Donaghue told the High Court the government had investigated moving a bisexual Iranian man in detention to a third country but was “unsurprisingly” unsuccessful because he could be returned to Iran.
The Commonwealth argues the man at the centre of the latest High Court challenge to the government’s immigration detention regime, given the pseudonym ASF17, could be deported if he co-operated with authorities, and therefore his continuing detention is lawful.
The High Court is hearing a fresh legal challenge to the government’s immigration detention regime.Credit: Alex Ellinghausen
ASF17’s barrister, Lisa De Ferrari, SC, told the court her client feared harm if he was returned, and would rather be sent to war-torn Gaza, but Donaghue said there many people who held those fears but had refugee applications rejected because their fears weren’t supported by an objective test.
Donaghue said if they found for the detainee “you will be turning the Federal Circuit Court into a refugee tribunal”.
De Ferrari argued the government didn’t even try to resettle her client in another country, which Donaghue disputed.
He said De Ferrari was effectively asking the government to take people to countries where they had no right of residency or long-term stay.
“If we did start removing people to those countries, that would create diplomatic tensions, and raise the risk of refoulement,” Donaghue told the court.