Detainees seize on Nauru plan to fight deportation

More detainees freed under a landmark High Court ruling have seized on Labor’s plan to deport non-citizens to Nauru as a defence against being made to leave the country.

Home Affairs and Immigration Minister Tony Burke in Canberra. Picture: NewsWire / Gary Ramage

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More detainees freed under a landmark High Court ruling have seized on Labor’s plan to deport non-citizens to Nauru, after a Kenyan man convicted over a puppy scam argued that his visa should be returned because he would face persecution on the ­Pacific Island because of his ­sexuality.

The Kenyan man, known as PRSY, was found to be owed a protection visa after he told the Administrative Review Tribunal that he would face persecution for being bisexual if he was deported to Nauru under Labor’s plan.

ART deputy president Kathryn Millar found that the man, who was released under the NZYQ court ruling that indefinite detention was unlawful, faced “ongoing uncertainty” over his future in Australia and should be granted a protection visa.

Home Affairs and Immigration Minister Tony Burke announced in February that three detainees would be deported to Nauru under a paid agreement using new third country removal powers, in a bid to neutralise the political fallout from the High Court decision.

PRSY was convicted of placing advertisements for a border collie puppy and a ragdoll cat on classified sites and requesting payment exceeding $1000 without the animals being provided in an online puppy scam. He was also convicted of drink driving and providing false details.

Mr Burke has defended his government’s handling of the NZYQ decision in November 2023, with the government passing a trifecta of migration bills through the parliament late last year, including the third country removal powers.

“These cases are at the ART because the visas have been cancelled by the department,” a spokesman for Mr Burke said.

“Our government’s view is very clear – if people do not have valid visas, they should leave the country. This is a fundamental part of any functioning migration system.”

The case follows a similar matter before the tribunal in which a Lebanese man, DJHT, was granted a visa after he argued that he faced possible removal to Nauru and other consequences if he was convicted of another crime and breached his visa conditions.

DJHT was convicted of using a carriage service to attempt to procure a person under the age of 16 for sex, and released following the NZYQ ruling.

“In my view, being indefinitely subject to BVR conditions with the possibility of being removed from Australia at some unspecified time in the future are significant legal consequences of the decision,” the judgment said.

Initially about 150 dangerous non-citizens, including murderers, rapists and drug traffickers, were released under the ruling, but the latest community protection report revealed the number had grown to 346 individuals.

Ms Millar found that PRSY faced uncertainty about his future in Australia because of his status as a holder of a bridging visa – specifically designed for the NZYQ cohort – that could also expose him to the risk of deportation of Nauru. “The legal consequences for the applicant are that he is subject to the conditions of his BVR and faces ongoing uncertainty about his ability to remain in Australia,” her decision said.

“If a decision is made to remove him to a country where a third country reception arrangement is made, he will not have further opportunity to present information about his circumstances.”

PRSY was charged with four family violence offences, but not convicted. He later acknowledged “there was violence in the relationship”.

Ms Millar also noted this concern held “limited” weight because it was not certain he would be selected for removal to Nauru.

So far, three men have been earmarked for removal under the scheme.

The Kenyan has a history of alcohol abuse and was described as a “co-operative but psychologically troubled man”.

He claimed to have been cut off by his parents when they discovered his bisexuality.