Edelman J
16.
EDELMAN J.
Introduction
51 ASF17 is a bisexual man who arrived in Australia by boat in 2013. He has been convicted of no offence in this country. But he has been continuously detained in immigration detention since 2014. He has now said that he is prepared to be removed willingly from Australia to any country in the world except Iran. But for a decade he has refused to assist the Commonwealth in his removal to Iran, where private and consensual sexual intercourse between men may attract the death penalty and where persons may face persecution for a choice "to live … aspects of their lives that are related to, or informed by, their sexuality".[1] ASF17 has refused to sign a request for his removal to Iran and has refused to engage with Iranian authorities in order to obtain travel documents required by Iran for his removal to that country.
52 There has been no dispute in this proceeding about ASF17's sexuality. But prior to this proceeding, in separate administrative and judicial review proceedings concerning his application for a protection visa, ASF17 did not raise his sexuality as a ground for alleged persecution. He said that this failure was due to "fear and stigma associated with such … conduct in Iran" and he relied on other grounds in his claim for a protection visa. Some of those grounds were rejected by a delegate of the Minister. Others have never been properly decided. In his application for habeas corpus before the primary judge, and in this Court, ASF17 relied upon his sexuality as the reason for his refusal to assist with his removal to Iran.
53 The intervener, AZC20, is also an Iranian man who was held in immigration detention for ten years. He also has been convicted of no offence in this country. 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. Over the ten years he spent in detention he persistently sought to be removed from Australia. He sought mandamus to be removed anywhere except Iran. For ten years Iran has been the only country to which he persistently refused to consent to be returned on the basis that he fears persecution in Iran.[2]
54 ASF17 and AZC20 presented their cases for writs of habeas corpus[3] in the Federal Court of Australia as a direct application of the reasons of this Court in
- ↑ Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at 501 [81].
- ↑ AZC20 v Secretary, Department of Home Affairs [No 2] [2023] FCA 1497 at [65].
- ↑ Federal Court of Australia Act 1976 (Cth), s 23. See Cane, "The making of Australian administrative law" (2003) 24 Australian Bar Review 114 at 115, 132.
