An immigration detainee who is refusing to co-operate with authorities on his deportation is fighting for freedom.
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The Iranian citizen is attempting to use a High Court judgment that freed 149 immigration detainees, ruling it was illegal to keep them locked up if there was no prospect of deporting them.
The detainee, known as ASF17, wants the ruling expanded to cover people indefinitely detained who refuse to co-operate with authorities on their deportation.
Attorney-General Mark Dreyfus sought to bump the case to the High Court in an application on Thursday, with the detainee set to challenge a Federal Court ruling in favour of his continued detention.
The High Court's original decision to release 149 detainees who had no prospect of being deported has put Labor under pressure, with the opposition slamming the government's handling of the case.
More than two dozen have been re-arrested and charged since being freed, including for visa breaches.
Of the seven people accused of commonwealth offences, three are in custody and four are on bail.
The number of people accused of state and territory offences who are out on bail is unknown.
The opposition has specifically targeted Immigration Minister Andrew Giles over his department's failure to apply for an order to put any of the freed detainees back in custody under emergency powers granted to him in December.
He received almost every opposition attack in question time across four days in parliament this week.
Opposition Leader Peter Dutton has called for heads to roll and Mr Giles to be sacked.
He chastised the government for failing to keep the community safe or get in touch with the alleged victims.
The released detainees include seven murderers and 37 sex offenders, 72 violent offenders and 16 domestic violence offenders.
Mr Giles argued that the applications for preventative detention orders take time and must be legally robust.
Home Affairs Department officials defended the time taken to make an application earlier in the week, saying there were tens of thousands of documents to go through per person.
The immigration minister also pointed to other measures put in place to manage the safety of the community, including criminal penalties for visa breaches, ankle monitoring bracelets and curfews.
Labor MPs have also slapped back at the opposition for using the High Court-mandated release as a distraction from the government addressing the cost of living.
But more detainees could be released if the High Court expands its previous ruling, about people in indefinite detention with no prospects of deportation, to cover those who obfuscate attempts to deport them.
The Iranian citizen argued he has no obligation to co-operate and that he would face persecution in Iran for being bisexual, Christian and standing up for the rights of women in the autocratic theocracy.
He had previously failed to gain a protection visa in Australia.
The Federal Court ruled his continued detention was lawful, saying a person could remain locked up if there was a practical way for them to be deported, even if that required their co-operation.
Homosexuality can attract the death penalty in Iran.
While the Federal Court judge accepted the man's sexuality, he didn't believe his account that his wife found him in bed with a man.
Justice Craig Colvin also rejected the detainee's assertions he had converted to Christianity, was happy to be deported anywhere other than Iran, and doesn't want to remain in Australia.
The Commonwealth is arguing it has the right to continue to detain people who refuse to co-operate.
The Iranian's lawyers argued that despite it being likely their client could be deported to Iran if he co-operated, "he has no obligation to co-operate and that he has good reasons for not co-operating".
Australian Associated Press
