An asylum seeker slated for deportation to Nauru on Monday has had his removal postponed, after he launched a legal challenge in the high court.
But the home affairs minister, Tony Burke, told Guardian Australia he was confident in the government’s power to deport the man and “we will proceed with removal to Nauru as soon as possible”.
The man facing deportation is part of the NZYQ cohort, about 280 non-citizens in the Australian community who previously faced indefinite immigration detention because their visas had been cancelled on “character grounds” but who could not be removed to their home countries because they faced persecution, or because those countries refused to accept them.
In November 2023, the high court ruled it was unlawful for the government to indefinitely detain a person if there was “no real prospect” of them being removed from the country “in the reasonably foreseeable future”.
The man was re-detained in Australia last week after Nauru granted him, and two other men, 30-year visas to live in that country, under a secretive deal it signed with Australia. The minister said the three men slated for removal were “violent offenders” and that one had been convicted of murder.
The Australian government is refusing to say how much it is paying Nauru – or what other inducements were offered to the Pacific island nation – to accept non-citizens from Australia for resettlement.
On Friday, one of the re-detained men filed a case in the high court, arguing that the decision to cancel his protection visa on character grounds was unlawful. Within hours of the case being filed, the minister for immigration and multicultural affairs gave a commitment to the court that he would not be removed while the case is ongoing.
The two other men are also scheduled for removal on Monday: last-minute legal challenges are also expected in those cases.
Laura John, associate legal director at the Human Rights Law Centre, which is representing the first man, said it was “deplorable” the government was attempting to banish people from Australia before they had completed their visa review process.
“While our client has been given a temporary reprieve, the threat of deportation to a third country has not disappeared. If allowed to continue to use these new powers, the Australian government could remove any person without a visa to any country in the world, regardless of their family connections or whether they have spent their whole lives in Australia.
“We must continue to resist this punitive overreach by our government, that, in future, could affect thousands of people in our community.”
The home affairs minister, Tony Burke, said the government was prepared for the legal challenge.
“The government said on day one that this arrangement with Nauru was likely to be challenged in the courts. This is no surprise,” he said.
Burke said the government was confident in the validity of the laws passed by federal parliament in November last year, which gave the government increased powers to send people without a valid Australian visa to a third country for resettlement.
“These are violent criminals who broke Australia’s laws. Because of the government’s new laws they are still in detention, rather than being out in the community.
“We will proceed with removal to Nauru as soon as possible.”
The NZYQ cohort is more than 280 non-citizens released into the community in Australia as a result of a landmark 2023 high court decision, in which the court ruled in favour of “NZYQ”, a stateless Rohingya man. NZYQ faced the prospect of detention for life because no country would resettle him because of a conviction for raping a child.
The high court ruled that immigration detention is unlawful where there was “no real prospect” of the person being able to be deported “in the reasonably foreseeable future”. The NZYQ ruling overturned the 2004 Al-Kateb judgment, which ruled the government could indefinitely detain a non-citizen.
As of December 2024, 64 of the NZYQ cohort were subject to electronic monitoring, while a night-time curfew had been imposed on 37.
