Detainee’s bid to halt Nauru deportation defeated in Federal Court

An immigration detainee and convicted wife killer has lost his legal fight against Labor’s bid to deport him to the Pacific Island nation.

Home Affairs and Immigration Minister Tony Burke. Picture: Martin Ollman/NewsWire

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An immigration detainee and convicted wife killer has lost his legal fight against Labor’s bid to deport him to Nauru, under a deal in which see the Pacific island nation would take foreign criminals “without any reservation” about their past offending.

In a major win for Home Affairs and Immigration Minister Tony Burke, the Federal Court has ruled the Iranian man at the centre of the case, known as TCXM, could be lawfully deported to Nauru under a paid agreement.

After the landmark NZYQ decision triggered the release of a growing number of dangerous non-citizens from immigration detention in November 2023, Mr Burke struck a deal with the Pacific nation to resettle three of the cohort.

Federal Court judge Mark Moshinsky handed down a redaction-laden judgment finding in favour of the government last week, which rejected the argument the Iranian had not been granted procedural fairness.

Though the decision temporarily clears the way for Mr Burke to deport the detainees, The Australian understands the May 26 decision will likely be the subject of an appeal.

Justice Moshinsky also dismissed arguments that TCXM could not be deported to Nauru because of the Iranian’s severe asthma and mental health issues.

“On the basis of this evidence, I do not accept that on mental health grounds the applicant is not fit to travel to Nauru,” the judgment said.

“Further, I find that the mental health issues posed by the flight could be managed by the provision of appropriate medical care during the flight.”

His lawyers also argued deporting TCXM, who has been found to be owed protection from his home country, to Nauru posed an indirect risk of him being returned to Iran where he would face persecution.

The case marked a major test for a new provision in the Migration Act, which the government legislated late last year to facilitate the deportation of non-citizens released under the NZYQ ruling to a third country.

As part of the court proceedings the government was granted suppression orders concealing the man’s identity and “sensitive” details about the deal with Nauru, the cost of which has not been disclosed.

Under the secretive agreement, Nauru will grant the three NZYQ detainees – including one murderer and two violent offenders – with a visa to remain in the country for at least 30 years.

TCXM was convicted of murdering his wife and handed a “lengthy” prison sentence in 1999.

Mr Burke met with Nauru President David Adeang on January 31 to discuss the agreement, with TCXM being issued a visa on February 15 following negotiations.

In a letter sent after the meeting, Mr Burke referred to correspondence from Nauru’s secretary of the Department of Multicultural Affairs, Daniel Eoe, which showed Nauru was open to accepting detainees regardless of their background.

“Secretary Eoe’s letter of 13 November 2024 also indicated that the government of Nauru is amenable to accepting individuals without any reservation in relation to age, past offences or other characteristics,” the judgment said.

The decision could clear the way for the government to deport more non-citizens to Nauru, with the two other detainees also lodging legal challenges.

TCXM’s lawyers argued that the Iranian had been denied procedural fairness because the government had exercised non-statutory power – which is granted by the executive but not explicitly by law – after the deal with Nauru, or “interim arrangement”, was struck.

“That said, I consider that there are insuperable difficulties in applying the principles of procedural fairness to the decision to enter the interim arrangement, or entry into the interim arrangement, given the nature of the arrangement in this case,” the judgment said.