Iraqi launches High Court challenge to third country removal

An Iraqi man convicted over an ‘aggravated’ kidnapping is fighting Labor’s bid to deport him to Nauru arguing his visa had been wrongfully cancelled, in a setback for the government’s third country removal powers.

The High Court of Australia in Canberra. Picture: NewsWire / Martin Ollman

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An Iraqi man convicted over an “aggravated” kidnapping is fighting Labor’s bid to deport him to Nauru on the grounds his visa had been wrongfully cancelled, in a setback for the government’s plan to remove detainees freed under the NZYQ ruling to a third country.

In the first High Court challenge to Labor’s third country removal powers, lawyers for the man convicted over the “aggravated detaining of a person for advantage” have argued multiple errors were made when his protection visa was cancelled and his deportation should be halted.

The man, who was sentenced to five years and nine months behind bars, was transferred to immigration detention when he had served his sentence after his protection visa was cancelled.

After the NZYQ ruling that indefinite detention was unlawful, triggering the release of more than 150 detainees in November 2023, the man was released on a bridging visa in October last year. He cannot be returned to Iraq because he was found to be owed protection.

The Iraqi was re-detained on February 16 and told he would be deported to Nauru under new legislation empowering Home Affairs and Immigration Minister Tony Burke to deport unlawful non-citizens to a third country under a paid agreement. Mr Burke announced he had struck a deal with Nauru earlier this month to accept three violent criminals, including one murderer.

The case does not directly challenge the third-country removal powers, but instead argues that the delegate’s decision to cancel the man’s visa was unlawful and his removal to Nauru should be stopped.

“The government said on day one that this arrangement with Nauru was likely to be challenged in the courts,” a government spokesman said.

“This is no surprise. The government is confident in the laws the federal parliament passed last year to give us 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.”

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

Ahead of a directions hearing on Tuesday in the man’s case, his lawyers have filed documents in the High Court arguing that Mr Burke’s delegate made an error in failing to “consider the legal consequences” of deciding to uphold a decision to cancel his visa.

The delegate erroneously said Mr Burke would consider the type of visa the man would be granted, his lawyers argue, when the only visa available in his circumstances was a Bridging Visa R, a category created to monitor the NZYQ cohort.

The man’s lawyers also argued that the delegate had failed to comply with Ministerial Direction 110, requiring migration decision makers to consider the expectations of the community, public safety and the non-citizen’s ties to Australia.

As the man’s offending did not involve family violence or “serious crimes against women, children of other vulnerable members of the community”, his lawyers argued the delegate had been wrong to apply the doctrine to support the cancellation of his visa.

The documents also argued that the delegate had used material that was provided to the department wrongly.

The man, who arrived in Australia in July 2012 and cannot speak or read English, failed to lodge an appeal to the cancellation of his visa in time because he did not understand the proceedings when he was handed documents detailing his refusal. An hour later he was called to another meeting and told he would be released from immigration detention that same day, leading him to think the decision had been reversed.

His lawyers said the man suffers from post traumatic stress disorder.