Tony Burke accused of misleading tribunal over Nauru detainee plan
A fresh legal spat has erupted over the government’s plan to eject released NZYQ detainees to Nauru, with one ex-detainee accusing the Immigration Minister of making misrepresentations to the appeals tribunal.
A fresh legal spat has erupted over the government’s plan to eject released NZYQ detainees to Nauru, with one former detainee accusing Home Affairs and Immigration Minister Tony Burke of making misrepresentations to the appeals tribunal.
A Federal Court judgment made public late last week has revealed that one detainee alleged the minister claimed there was no plan to remove him to a third country, days before the federal government announced a deal with Nauru for the relocation of people released from detention as a result of the NZYQ decision.
Judge Michael O’Bryan has now ordered Mr Burke to hand over a raft of communications between the federal government and Nauru relating to the relocation of former detainees, after he found the minister failed to inform the appeals tribunal about the Nauru plan in the case of a South Sudanese man.
The 31-year-old man at the centre of the case, known as GNHW, applied for a review of the Administrative Review Tribunal’s decision to refuse his protection visa on character grounds over convictions for intentionally causing injury, public drunkenness and failure to answer bail.
“The minister opposed discovery principally on the basis that the Australian government did not enter into an arrangement with the Republic of Nauru until after the tribunal made its decision in the present case, and the arrangement entered into was an interim arrangement that concerned three individuals and not the applicant,” the August 21 judgment said.
“The minister argued that records of the negotiations, including draft arrangements, could not be relevant to the tribunal’s decision.”
GNHW, who was released on a bridging visa category reserved for the NZYQ cohort in November, had argued he should be granted a protection visa because he could be removed to a third country under new legislation; the tribunal rejected this argument in February.
The decision came as Mr Burke tabled new legislation this week bolstering the government’s powers to deport detainees to a third country, by denying the three men selected for removal the right to respond to decisions before they were made, known as procedural fairness.
The Australian understands the legislation will apply retrospectively, but only to the three individuals selected for deportation to Nauru, with the purpose of preventing any further appeals to higher courts.
Australian Lawyers Alliance spokesman and barrister Greg Barns said Mr Burke’s explanation when he introduced the bill that procedural fairness was being used by non-citizens to “delay and frustrate their removal” was concerning.
“The denial of procedural fairness is always undesirable because it is an essential function of the rule of law in Australia,” Mr Barns said.
“This is another example of the government, for political purposes, undermining the rule of law.
“Mr Burke’s statement that these people had been using procedural fairness to delay the course of their matters is frankly wrong – they are simply exercising a human right which should be enjoyed by all people in this country, in respect of government decisions.”
The bill came after the federal government last week applied for a legal challenge from one of the three NZYQ detainees selected for deportation to Nauru, a man known as TCXM, to be heard in the High Court.
TCXM lost his bid to avoid deportation to Nauru in the Federal Court in May, when he argued that he had not been granted procedural fairness by not being given enough notice that the third party removal plan applied to him.
The NZYQ decision initially triggered the release of 150 dangerous non-citizens in November 2023, with the number having grown to 354 by July this year.
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