Anna Talbot

ASF17 v Commonwealth [2024] HCA 19 (ASF17 v Commonwealth) is the latest judgment of the High Court of Australia in the hotly contested space of immigration detention. With this case,the High Court reaffirmed that indefinite immigration detention remains available in Australia. Its permissible use has narrowed, however, when compared with the law prior to the High Court’s ruling in NZYQ v Minister for Immigration [2023] HCA 37 (NZYQ). In determining whether immigration detention is valid, ASF17 v Commonwealth tells us that the circumstances and motivations of the plaintiff is key. However, the ruling hinges on a troubling concept of ‘choice’, the consequence of which is that people who are at risk of persecution or death if they are deported can remain indefinitely detained if they refuse to be deported to such risks. This post examines the history leading up to the decision in ASF17 v Commonwealth, unpacking the facts and arguments made by the parties and how they were responded to by the Court. While the case is problematic, in that it permits indefinite detention based on choices that no person should be expected to make, it also offers insights which might serve to assist those seeking release from indefinite immigration detention in the future.

Sangeetha Pillai

It’s coming up to the 30th birthday of Australia’s policy of mandatory immigration detention for non-citizens who do not hold a visa. Throughout its lifetime, the policy has remained a controversial cornerstone of Australia’s migration law framework, facing – and withstanding – multiple High Court challenges.