Tony Burke’s ‘tactical ploy’ exposed in latest NZYQ case

A domestic violence offender released after the NZYQ decision will receive $16,000 in costs, after a judge called out the Home Affairs Minister over a ‘ploy’ to try to force the detainee to return to Iraq.

Home Affairs and Immigration Minister Tony Burke at a cabinet meeting. A freed detainee was offered an ‘invidious choice’, says a judge. Picture: NewsWire / Martin Ollman

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A domestic violence offender released following a landmark High Court case will be paid more than $16,000 in costs, after a judge called out Home Affairs and Immigration Minister Tony Burke over a “tactical ploy” in a “misguided” attempt to force the detainee to return to Iraq.

The man at the centre of the case, who has argued he needed protection because of his father’s profile as a Ba’athist and friend of Saddam Hussein, had the costs awarded to him by a court as part of his wrongful imprisonment case against the government.

The Iraqi, known as GKX18, was convicted of three family violence offences in 2017, and was released from immigration detention in October after his lawyers filed a “habeas corpus” claim for wrongful incarceration.

The claim was based on the NZYQ ruling handed down in November 2023, which found that indefinite detention was unconstitutional, and which triggered the initial release of about 150 dangerous non-citizens into the community.

In a Federal Circuit and Family Court judgment handed down last week, Justice Heather Riley described how GKX18 had been offered an “invidious choice” to either comply with a requirement of his bridging visa to apply for a passport or breach this condition.

Justice Riley said applying for an Iraqi passport could void GKX18’s protection finding, meaning he cannot return to his country of citizenship because engaging with Iraqi authorities would imply he was no longer at risk.

But if he chose to obey the direction and applied for a passport, this decision could be used against him in future applications to remain in Australia.

“It was unreasonable for the minister to have imposed (the condition) in the first place,” the July 3 judgment said.

“The decision to impose a condition requiring the applicant to apply for an Iraqi passport seems to have been a tactical ploy to make it impossible for the applicant to resist being returned to Iraq.

“The fact that the minister’s conduct in this regard was misguided was, in essence, conceded by the respondents.”

Justice Riley ordered the government to pay $16,778.75 to cover GKX18’s legal costs from filing the application.

About a week after he was forced to concede Labor’s preventive detention laws responding to the NZYQ decision had effectively failed, Mr Burke said the sum awarded was not compensation.

“This is an order from the court, but it is important to know none of it is for compensation or damages,” he said.

GKX18’s wrongful imprisonment claim continues in the court, with the government arguing the costs ordered against it will be offset against “other costs ordered against the applicant in other matters”.

Though GKX18 was initially released on a bridging visa E, he was later granted a bridging visa R, a category specifically created for the NZYQ cohort.

In 2020, the Federal Court ruled against GKX18’s bid to obtain a protection visa on the grounds that his father had been a lieutenant-colonel in the Iraqi police service during the Saddam era.

“He claimed that if he returned to Iraq he would be killed by Shia Islamic groups because of his father’s profile as a Ba’athist, and as a friend of Saddam Hussein, and because he and his family were Sunni,” the judgment said.

“The tribunal accepted that the appellant’s father had been a lieutenant-colonel in the Iraqi police service and had performed similar or related services during the Saddam Hussein era.

“The tribunal also accepted that the appellant’s father was a member of the Ba’ath party. However, the tribunal did not accept that the appellant came to the attention of Shia militias or that he or members of his family were targeted,” it said.