Key Takeaways
- The Australian government’s $2.5 billion deal with Nauru to deport refugees is being challenged in the high court.
- Lawyers for an Iranian refugee, TCXM, argue that deporting him to Nauru could result in his "imminent" and "preventable" death due to inadequate medical facilities.
- The government claims that officials are duty-bound to deport non-citizens, even if it means they may be killed.
- The case has implications for the government’s deal with Nauru and the treatment of other refugees in similar situations.
- The government has passed amendments to the Migration Act to remove natural justice for non-citizens on a removal pathway, which lawyers argue are valid but not lawful.
Introduction to the Case
The high court of Australia is hearing a case that could have significant implications for the government’s $2.5 billion deal with Nauru to deport refugees. The case surrounds an Iranian refugee, known as TCXM, who was granted a 30-year visa for Nauru in February and subsequently placed back into immigration detention. Lawyers for TCXM are appealing an earlier decision to dismiss his case, arguing that the original judge had accepted that Nauru’s medical facilities were "inadequate" to treat his severe asthma, but still ruled in favor of deporting him.
The Refugee’s Medical Condition
TCXM’s lawyers argue that his removal to Nauru could result in his "imminent" and "preventable" death due to the inadequate medical facilities on the island. They claim that his condition would worsen on Nauru due to his age, the weather conditions, and the "insufficient" facilities to manage his condition on an ongoing basis or treat a severe and potentially fatal asthma attack. The commonwealth’s lawyers, on the other hand, argue that government officials are duty-bound to deport non-citizens on a removal pathway, citing a 2003 court ruling that said it was required "even if it is virtually certain that he or she will be killed".
Procedural Fairness
Lawyers for TCXM also argue that he was not afforded procedural fairness under the interim arrangement with Nauru because he did not have a chance to state his case against it. According to a chronology submitted to the court, Australia and Nauru entered into the interim arrangement on February 12, 2025, for the three men, including TCXM, and the government applied for his visa without his knowledge two days later. TCXM was taken back into detention on February 16 when he was notified that Nauru had issued the long-term visa. The government’s counsel claims that the Nauru deal was lawful and that TCXM was not afforded procedural fairness because it related to foreign affairs matters, namely Australia’s dealings with Nauru.
Background and Implications
TCXM was one of over 350 non-citizens released from indefinite detention in 2023 after the high court ruled in favor of a stateless Rohingya man known as NZYQ. The chief justice, Stephen Gaegler, said that the man’s indefinite detention was unlawful because there was "no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future". TCXM arrived in Australia in 1990 and was granted a protection visa five years later. However, his visa was cancelled in 2015 after he was convicted of murdering his wife and sentenced to 22 years in prison. The Australian government has recognized that he is owed non-refoulement obligations and cannot be sent back to Iran. The deal with Nauru allows the government to apply for 30-year visas on behalf of those within the NZYQ-affected cohort to offload them to the tiny Pacific island.
Government Amendments to the Migration Act
The government has passed amendments to the Migration Act to remove natural justice for non-citizens on a removal pathway. The changes aim to speed up deportations by removing the cohort’s right to natural justice and therefore further legal challenges once the government decides to send them to Nauru. Lawyers for TCXM argue that these changes are valid but not lawful. The case has significant implications for the government’s deal with Nauru and the treatment of other refugees in similar situations. If the court rules in favor of TCXM, it could have broader implications for the government’s multi-billion-dollar deal and the fate of other refugees who may be deported to Nauru.