Nauru refugees. Indefinite detention a definite breach of High Court ruling

Despite the Supreme Court ruling outlawing the indefinite detention of refugees, the Federal Government began returning refugees to Nauru indefinitely. Janet Pelly reports.

High Court of Australia in November 2023 reigned Indefinite immigration detention is unlawful (NZYQ).

It was a landmark unanimous decision that overturned 4-3. Al-Kateb v Godwin precedent (2004) and to ensure that where persons are detained for the purpose of deportation, such removal can be effected within the reasonably foreseeable future.

More than 300 of the 354 men affected by the decision were child or adult refugees; The rest are stateless or unable to return to their country of birth.

Their visas were canceled for various reasons, but all the same Peter Dutton made When Medevac legislation was being debated in 2019, politicians and the media flagged only the most serious cases.

In the 2 years after the NZYQ, various pieces of legislation were introduced to undermine the separation of powers. There have been efforts to enact preventive detention (fail), enforce punitive visa conditions such as ankle bracelets (fail), and deny due process (challenge).

Exile to a lost shore: human rights, climate and the Nauru ‘solution’

Detention under another name

Within two weeks of a 66-year-old man in poor health First person deported after NZYQDespite continued secrecy around the Government’s Memorandum of Understanding (MoU) with Nauru, we are starting to see what a Nauru deal could look like.

At least three men are now isolated in the ‘regional processing centre’ of the 21 square kilometer island. We are told that this is for quarantine purposes, but there is no time frame or information on how they will (allegedly) live freely in the Nauruan community.

They did not apply for 30-year visas.

In the latest of the High Court challenges to the deal, lawyers argue that a man known in court as TCXM was wrongly denied procedural fairness when the Australian government applied for a visa to enter Nauru on his behalf. They also allege that he has a potentially fatal health condition that precludes his removal from office.

The Human Rights Law Center has applied to be heard as a ‘friend of the court’, arguing that the power to remove people from Australia does not allow them to be removed to places where they could face serious harm or death.

Sanmati Verma, Legal Director of the Human Rights Law Centre, said: “Many of those apprehended under the Nauru agreement have lifelong health problems caused or exacerbated by their indefinite stay in immigration detention. For them, being sent to Nauru would be a death sentence, and our government knows it.”

In one example, a man with Stage 4 cancer was to be deported because Australian legislation denied him the right to have his health needs taken into account, even though Nauru did not have the necessary treatment facilities. As seen in Nauru’s detention camps (2012-2022), legal challenges We have had to evacuate people again and again for healthcare that was not available locally.

Tony Burke has repeatedly said that if your visa is cancelled, you should leave. Selectively this makes sense. However, refusing to consider what might happen in the receiving country means Australia is ignoring the legal principle of the reasonable feasibility of deporting a person.

Whatever the outcome of the Supreme Court’s deliberations, this raises an important philosophical principle. If a plan of action can only be achieved by denying people the right to submit relevant information, what does that say about the state of our democracy?

Politics of criminalization

As we watch the Nauru agreement unfold, the parallels with Robodebt are striking. Alan Tudge, the then Human Services Minister, said: “We will find you, we will track you down, you will have to pay these debts and you may end up in prison.”

Some may argue that most of the NZYQ group are real criminals, but this denies the purpose of the justice system (rehabilitation). Is everyone convicted of a crime a criminal for life, or is that label reserved for people born in another country, regardless of how long they have lived in Australia?

Talking to people at risk of deportation to Nauru raises some important issues:

The most important of these is poverty. Few people can afford to hire a lawyer for the often protracted fight to challenge visa revocation, so they spend years in detention due to health problems and watch the family fall into even more financial and emotional stress. The men I talk to who are affected by NZYQ say they keep quiet and hope no one will notice them; This is not a solution, but it is not surprising either.

Inconsistency in visa return is another issue. The men I spoke to ask why sex offenders get their visas revoked but they have to be sent to Nauru for 30 years. 2019 SMH The investigation highlighted similar inconsistencies and raised serious questions about the opaque review process.

Boundary integrity and narrative control

It is tempting to see the political response to NZYQ as performance-based flex or over-politics.

But tricks like this persist because they work. They reassure us that someone else is guilty, someone else is dangerous, someone else must pay for our comfort.

It’s not about the integrity of boundaries, it’s about control of the narrative,

A government that protects its electoral hopes through fear and exclusion.

Indefinite detention may not be valid in law, but it will certainly survive in practice without being challenged; by renaming, outsourcing, and hiding in secret memorandums of understanding.

Albanese refuses to reveal details of Nauru deal