However,the court found in both cases there was no real prospect of removing the men from Australia in the foreseeable future,with their co-operation or not,and they had to be released into the community.
It’s understood both men,who were released in Victoria,will be required to wear electronic monitoring bracelets and abide by curfews.
A government spokesperson said they couldn’t comment on individual cases but confirmed:“The government is actively considering the implications of the judgment,including potential appeals”.
In a different decision last year,another Iranian man,Ned Kelly Emeralds,was also freed by the Federal Court despite the government arguing he had not co-operated with attempts to deport him.
The Commonwealth’s argument that those who frustrate efforts for their deportation should not be released into the community is the subject of a High Court appeal to be heard next month as part of a case brought by another Iranian man,given the pseudonym ASF17.
Attorney-General Mark Dreyfus successfully applied to have the issue settled by the High Court after lawyers for ASF17,a bisexual man who fears persecution in Iran,considered appealing a rejected bid for freedom in the Federal Court earlier this year.
In documents submitted to the High Court,ASF17’s lawyers argue the Commonwealth knew their client wouldn’t return to Iran voluntarily,and Iran would not issue travel papers for the involuntary return of one of its citizens.
“The Commonwealth never considered any other possible pathways to removal of the appellant from Australia,apart from removal to Iran,” the documents say.
If the High Court finds against the Commonwealth in ASF17,it could trigger the release of many more detainees,while a finding in favour of the government could see the two men re-detained. Constitutional law expert George Williams said the issue of detainees not co-operating often arose because they feared returning to their own country.
“This clearly is a pressing and important issue,and it’s not surprising the High Court is seeking to quickly determine it,” Williams said.
Opposition immigration spokesman Dan Tehan said Australians were once again learning about the release of detainees with criminal convictions via the media rather than the government. “People will be asking:why the secrecy?” he said.
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The release of a large cohort of detainees,which included convicted murderers,rapists and people who have served sentences for violent crimes,created a political headache for the government at the end of last year. Labor was forced to team up with the opposition to pass strict laws requiring many of those released to wear electronic monitoring devices and abide by curfews.
Last week,Victoria Police arrested former detainee Alfons Pirimapun in the belief he had sexually assaulted a woman,beforewithdrawing the charges in a case of mistaken identity. He is now consideringlegal action against the police.