Nauru will offer visas to members of the NZYQ cohort of non-citizens released into the Australian community following a High Court decision, Home Affairs Minister Tony Burke has revealed.
Burke said the Nauruan government had approached Australia to offer a resolution for the cohort, many of whom have a history of violent offending.
“When somebody has come and treated Australians in a way that shows an appalling character, their visas do get cancelled and when their visas are cancelled, they should leave,” he said.
He said three members of the cohort had already been granted long-term Nauruan visas and had been detained in Australia awaiting removal, adding that the three had criminal histories and one had a prior murder conviction.
“I am very grateful to the government of Nauru that we are in a situation now where three people, where previously the situation had seemed intractable, are now on a pathway to leave Australia.”
The group were being kept indefinitely in Australian detention because they had failed character tests but also had no reasonable prospects of deportation.
A 2023 High Court decision in the case of one such man, identified as “NZYQ”, found detention in those circumstances unlawful, which saw more than 250 released into the community.
The government has since made successive attempts to monitor the cohort using ankle monitors and curfews, with the threat of jail time for non-compliance, but has encountered further difficulty with the High Court, which affirmed last year the cohort could not be treated “punitively”.
Burke visited Nauru earlier this year and suggested Australia had offered the Pacific nation something as part of an “arrangement”, but declined to go into specifics.
“We don’t go through the details of the costs involved with that, but let me just say this with respect to the cost. Yes, there’s a cost in reaching arrangement with third countries, [but] there is also a cost in the high level of monitoring … that happens when these individuals are in the community here in Australia.”
He said he anticipated further visas would be granted, adding that he anticipated a legal challenge to the arrangement but was confident of its legality.
“These three individuals are certainly not being indefinitely detained … They’re being detained pending removal. We know exactly where they’re going, and there is a visa. There are final pieces of logistics to now get organised. But they had to be taken into detention the moment Nauru had issued the visas.”
Any court case is likely to revolve around laws the government passed last year to boost its powers to force deportations when participants are not compliant. Those laws, which threaten non-citizens with prison sentences if they do not follow directives of immigration officials, have yet to be tested.
A government source said the intention was to keep the three individuals in immigration detention in Australia until the legality of their deportation had been established, which may prolong the matter until after the upcoming federal election.
If successfully deported, the individuals will live in a pre-arranged facility in Nauru, distinct from the Australian immigration facility.
Burke said he had “inspected” the accommodation and that the individuals would not be contained there, free to “move around the island” and with work rights.
Speaking in Darwin, Opposition Leader Peter Dutton said the Coalition would “consider” the arrangements before offering a view, but again criticised the government’s handling of the issue.
The Coalition’s home affairs spokesperson James Paterson told the ABC the Coalition would seek to continue any arrangement with Nauru in government.
“We’ll use all options available to us including this one because our priority is putting Australia’s community safety first,” he said.
But he added the move was “too little too late” and the government should have made use of the preventative detention laws it passed to monitor the NZYQ cohort while it remained in the community.
“To send only three of [the cohort] overseas is hardly going to protect the community,” he said.
Mike Pezzullo, the former secretary of Home Affairs dismissed after a finding he had breached the public service code of conduct, also questioned the government’s urgency.
“I would cautiously welcome this Nauru element … But from the outside it does look like it’s been moving not particularly rapidly,” he told the ABC.
“Taking months to do something that should be able to be done in weeks with a bit of force and a bit of drive is something that needs to be answered.”
Pezzullo said Australia should do more to press countries of origin to accept deportation rather than third parties, as the Trump administration has done.
“If you get into a situation where you say, ‘Well, let’s just hunt around for other countries to do third-country resettlements,’ you’re taking the pressure off the home country,” he said.
Greens senator David Shoebridge said the move was “divisive and dehumanising”.
“Today’s announcement entrenches a two-class legal system where you can be subject to arbitrary detention and forced to a country you have no connections to because of where you were born …” he said.
“No other country has decided to bribe other countries to take people without any regard for human rights.”
Abul Rizvi, a former senior immigration official, told the ABC it was no surprise the government had been negotiating with another country to take the cohort and that Nauru was “the obvious target.”
“It’s small, poor and desperate for money, it hasn’t got much of a future.”
He said the deportations were unprecedented and raised moral questions regardless of their legality.
“This is a step we’ve never taken before … These people are being resettled in Nauru, I imagine for the rest of their lives because I don’t know where else they can go.
“Allegedly they are too dangerous for our society. But is Nauru in a better place to manage them than us?
“Yes, they have probably committed appalling crimes, but they committed those here. Just because we can’t send them home doesn’t mean we have a right to force them on poor countries just because they’re poor.”
Burke said Nauru was “aware of their background” and had made its own decision to accept them.
“The government of Nauru is a sovereign government, and they’ve made a decision as a sovereign government to issue these visas,” he said.
