Two more NZYQ detainees challenge Labor’s Nauru deal

Labor’s plan to resettle three NZYQ detainees in Nauru has been derailed, after a murderer and a violent offender joined an Iraqi kidnapper in challenging the bid to deport them in the courts.

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

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Labor’s plan to resettle three NZYQ detainees in Nauru has been derailed, after a murderer and a violent offender joined an Iraqi kidnapper in launching court challenges to fight their deportation.

In a major blow to a deal Home Affairs and Immigration Minister Tony Burke struck with the Pacific nation to take three violent criminals under a paid arrangement, two of the men have taken action in the Federal Court, stalling their scheduled Monday removal.

An Iraqi man convicted over an aggravated kidnapping launched High Court action challenging the push to deport him on Friday.

His barrister, Thomas Wood, said in a hearing on Tuesday that all three men remained in immigration detention, after the other two lodged their own court applications.

Mr Wood said there were “no overlapping issues” in the legal arguments of each case, though each was arguing against the Albanese government’s bid to deport him.

He said the Federal Court held an emergency hearing for the other two men on Sunday to halt their deportation, scheduled for Monday.

“There are three plaintiffs or applicants, one in this court and two in the Federal Court, all of whom are in detention and all of whom, as I understand it, were due to be removed yesterday,” Mr Wood told the High Court.

“Because of an undertaking given in this proceeding, that did not occur, and because of interim injunctions granted by the Federal Court on Sunday morning, the other two persons were also not removed.

“So, there are presently three people, as I understand it, in immigration detention in equivalent positions regarding removal to Nauru.”

The Iraqi man at the centre of the High Court challenge was convicted over the “aggravated detaining of a person for advantage” in June 2022, and was transferred to immigration detention after he had served his sentence.

The High Court handed down its NZYQ ruling in November 2023. Picture: Martin Ollman/NewsWire

After the High Court handed down its NZYQ ruling in November 2023 that indefinite detention was unlawful, triggering the release of more than 150 foreign criminals, the man was released into the community in October 2024. He cannot be returned to Iraq because he has been found to be owed protection.

Though the court action does not directly challenge the third country removal powers, the man’s lawyers argued in documents filed in the High Court that multiple errors were made when his protection visa was cancelled and his deportation should be halted.

They argued Mr Burke’s delegate erroneously said the minister could consider the type of visa the man would be granted when only one category was available.

The documents also argue the delegate had failed to comply with Ministerial Direction 110, revealing that the man’s offending did not involve family violence or “serious crimes against women, children or other vulnerable members of the community”.

The man was redetained on February 16 and told he would be deported to Nauru under new legislation empowering the federal government to deport unlawful non-citizens to a third country under a paid agreement.

Mr Burke announced this month that a deal had been struck with Nauru to take three of the NZYQ detainees, including two violent offenders and a murderer.

The government has consistently maintained that it had expected court challenges to its third country removal powers, which passed the parliament in November, in the last sitting fortnight of the year.

Mr Burke said the tiny Pacific nation of fewer than 13,000 people would take three ­violent criminals, revealing there was ­little prospect of preventive detention laws, introduced following the NZYQ decision, being successful in putting foreign crim­in­als back in detention in Australia.