Page:ASF17 v Commonwealth of Australia.pdf/29

Edelman J

primary judge, this approach would apparently justify indefinite detention even if the alien's failure to cooperate arose in circumstances where it had been found under the Migration Act that the alien had a genuine and well-founded belief that their removal would result in persecution (including execution) but the alien refused to provide written consent for their removal to that country.

76 The primary judge referred to ASF17's expressed willingness to be removed to any other country apart from Iran but observed that ASF17 had not advanced any basis upon which he might be removed to any other country and that there was no evidence that supported the existence of any such country. The primary judge thus found that there was no country other than Iran to which it was possible to remove ASF17 and that ASF17 could be removed to Iran if he wrote a letter to the Iranian authorities and provided such other information as may be necessary for the Commonwealth to obtain the documents needed for him to travel to Iran.

77 As explained in more detail below, the primary judge held that ASF17 was bisexual but rejected ASF17's claim to fear persecution in Iran based upon his sexuality. The primary judge held that ASF17's claimed fear of persecution was brought only on the basis of what ASF17 said were the consequences for him of his claim to have been caught by his wife in bed with another man. The primary judge rejected ASF17's evidence about this event and held that ASF17's long period in detention was "consistent with a singular focus upon being able to secure permission to be released into the Australian community rather than face economic difficulty if he was to be made to return to Iran". The primary judge observed that despite the long delay, ASF17 retained hope of being permitted to remain in Australia and had made repeated requests for ministerial intervention.

The submissions in this appeal by ASF17 and AZC20

78 In this appeal the primary submission of ASF17 was that the logic of six members of this Court in NZYQ should be applied to ASF17. For a decade, ASF17 has steadfastly refused to assist the Commonwealth with his removal to Iran. It was submitted that ASF17's refusal to provide the necessary assistance for his removal to Iran (as the only country to which his removal would otherwise be