Federal Court upholds agreement to remove non-citizens to Nauru

Before discussing that ruling, it is necessary to understand its context.

In 2004, the High Court of Australia held by majority in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 that sections 189(1) and 196(1) of the Migration Act 1958 (Cth) did not offend Ch III of the Constitution, meaning that they were valid. Those provisions required the continuing detention of an unlawful non‑citizen in respect of whom there was no real prospect of removal under sections 198(1) or (6) becoming practicable in the reasonably foreseeable future. An “unlawful non-citizen” means a non-citizen in Australia who does not hold a valid visa.

The effect of Al-Kateb was that, during nearly 20 years, it was understood that an unlawful non-citizen could be kept in immigration detention for as long as there was no real prospect of their removal in the reasonably foreseeable future. That is, they could be kept indefinitely.

Indefinite detention occurred, for instance, when someone had their visa cancelled due to a criminal conviction, but could not be refouled (removed) to their home country for having been found in Australia to be owed protection from harm, such as persecution, under the act.

As such, in some cases, non-citizens could be held in immigration detention for the rest of their lives.

Al-Kateb was seen as good law until November 2023, when it was reopened and unanimously overruled by the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005.

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The ratio in NZYQ is found at [55] (emphasis added):

“… expressing the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia as coming to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future follows directly from the principle in Lim. This is the appropriate expression of the applicable constitutional limitation under a statutory scheme where there is an enforceable duty to remove an alien from Australia as soon as reasonably practicable.”

In other words, as per NZYQ, immigration detention is, or becomes, unlawful as soon as the real prospect of removal of a non-citizen from Australia is not, or is no longer, practicable in the reasonably foreseeable future.

As a result of NZYQ, where removal from Australia is not practicable in the reasonably foreseeable future, for instance because the non-citizen in question has been found to be owed protection under the act, the federal government has had no option but to release them from immigration detention. Some of those who were released have criminal convictions.

The release of non-citizens with significant criminal convictions from immigration detention led to political pressure on the government and Parliament, which, in turn, led to a suite of new legislation that sought to respond to NZYQ. In essence, the new legislation purported to grant individuals in that cohort so-called BVRs (Bridging R visas) with conditions, including a curfew and an obligation to wear ankle monitoring devices, by the threat of criminal prosecution.

However, in November 2024, in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40; 99 ALJR 1, the High Court declared such BVR conditions to be punitive and therefore invalid, as they infringed Ch III of the Constitution.

What happened next takes us back to TCXM, where the applicant brought proceedings in the Federal Court against the Minister for Immigration and Multicultural Affairs (first respondent) and the Commonwealth of Australia (second respondent), and where Moshinsky J wrote (original emphasis):

“3 On 5 December 2024, the Migration Amendment Act 2024 (Cth) came into force. This introduced ss 76AAA and 198AHB into the Migration Act ... In broad terms, s 198AHB operates if the Commonwealth of Australia enters into an arrangement (referred to as a ‘third country reception arrangement’) with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country, and confers a power to take or cause to be taken any action in relation to the arrangement. Section 76AAA(1) provides that the section applies in relation to a non-citizen if:

(a) the non-citizen holds a BVR;

(b) the non-citizen has ‘permission (however described)’, granted by a foreign country, to enter and remain in that country;

(c) the foreign country is party to a third country reception arrangement within the meaning of s 198AHB; and

…

4 Section 76AAA(2) provides that the Minister ‘must’ give the non-citizen notice that the section applies in relation to the non-citizen. The effect of the non-citizen receiving the notice is that the BVR ceases to be in effect: s 76AAA(4) …

5 Between 31 January 2025 and 12 February 2025, the Minister for Home Affairs of the Commonwealth of Australia (who also held the office of Minister for Immigration and Multicultural Affairs) and the President of the Republic of Nauru exchanged letters in relation to an interim third country reception arrangement. The respondents’ case is that the exchange of letters constituted an agreement or arrangement between Australia and Nauru, albeit an interim agreement or arrangement that applied to only three individuals (one of whom was the applicant) … I will refer to the agreement or arrangement said to be constituted by those letters as the Interim Arrangement.

6 On 14 February 2025, an Australian government officer applied for a visa for the applicant to live in Nauru. The type of visa applied for was called a ‘long term stay visa’ as set out in the Immigration (Long Term Stay Visa) Regulations 2025 (Nauru) (the Nauruan Regulations). The regulations provide that the Director of Immigration of Nauru ‘shall’ grant a long term stay visa to a person eligible for the visa pursuant to an arrangement between Nauru and another state for such a person to enter and remain in Nauru. The Nauruan Regulations provide that the duration of the long term stay visa is a minimum period of 30 years.

7 On 15 February 2025, Nauru issued a long term stay visa to the applicant (the Nauruan Visa).

8 On 15 or 16 February 2025, the Minister for Immigration and Multicultural Affairs (Australia) (the Minister) gave notice to the applicant that s 76AAA applied in relation to him (the Notice). On the respondents’ case, the effect of the applicant receiving the Notice was that his BVR ceased to be in effect and he again became an unlawful non-citizen.”

According to Moshinsky J at [115]:

“… reg 4 of [the Nauruan Regulations] imposed on the Nauruan Director of Immigration a duty (‘shall’) to grant any application for a permission satisfactory of s 76AAA(1)(b) made by an officer of the Commonwealth in respect of the applicant as the subject of the Interim Arrangement …”

The applicant unsuccessfully sought certiorari, declaratory relief, prohibition and injunctive relief, supported by six grounds of review, some of which are discussed below.

Grounds 1 and 2 argued, as per TCXM at [13(a)]:

“Authority to make the decision to enter into the Interim Arrangement, and to enter into the Interim Arrangement, was impliedly conditioned on a requirement to afford the applicant procedural fairness (which was not afforded), non-compliance resulting in the Interim Arrangement lacking legal effect under s 76AAA(1)(c) …”

Justice Moshinsky held at [130] that procedural fairness was not owed, therefore dismissing grounds 1 and 2:

“… The Interim Arrangement was an agreement or arrangement between Australia and a foreign state. Agreements of this kind are necessarily the product of negotiations at the highest levels of government. Such negotiations will often be conducted in secrecy owing to the political and diplomatic sensitivity of their subject matter. There were likely issues of timing in relation to the communications that were sent by the Australian government to Nauru, such that an obligation to afford procedural fairness to the applicant may well have interfered with the Australian government’s capacity to conduct relations with Nauru. In light of these matters, it would have been wholly impractical and incongruous for entry into the Interim Arrangement to have been conditioned on an obligation to afford the applicant procedural fairness (no matter how attenuated the content of procedural fairness might have been)...”

Ground 5 argued, as per TCXM at [13(c)]:

“… The decision to give the Notice, and the Notice, have no legal effect under s 76AAA (Ground 5) … :

(i) … [the applicant] contends that he does not hold a valid Nauruan visa and therefore he does not have ‘permission’, granted by Nauru, to enter and remain in that country. Therefore, the requirement in s 76AAA(1)(b) is not satisfied.

…”

Ground 5 was particularised as follows, as per TCXM at [168] (original emphasis):

“… the Applicant does not hold ‘permission (however described), granted by [Nauru], to enter and remain in that country’ for the purposes of s 76AAA(1)(b) of the Act because:

(i) s 10(1) of the Immigration Act 2014 (Nauru) (the Nauruan Immigration Act) makes entry to Nauru an offence for a person who is not a citizen of Nauru and who does not hold a ‘valid visa’. A ‘visa’ means ‘a visa [validly] granted under the Regulations’ (s 3).

(ii) the Applicant does not hold a ‘valid visa’ within the meaning of s 10(1) of Nauruan Immigration Act because, if an officer of Nauru had any substantive discretion in respect of whether to grant the Applicant a Nauruan Visa, on receipt of the email from an officer of the Commonwealth on 14 February 2025:

a. that officer constructively failed to exercise that jurisdiction, or acted under dictation, in that the officer knew that the President of Nauru had already agreed with the Minister (or the Commonwealth), by or in connection with the [Interim] Arrangement, that the Applicant would be given a Nauruan Visa …”

His Honour held at [170] that the visa granted by Nauru to the applicant was valid, therefore dismissing Ground 5:

“… the power under reg 4 of the Nauruan Regulations is mandatory because the word ‘shall’ means ‘must’. There does not appear to be any dispute about this. It follows from this that there is no question of the Nauruan officer acting under dictation in granting the Nauruan Visa …”

As a result of the above and other rulings, it was held that the interim agreement entered into by Australia and Nauru for the removal of the applicant was valid.

The importance to the Australian government of the validity of that agreement is that, by removing the applicant to Nauru, the government achieves two outcomes, in that it avoids:

• Returning the applicant to his home country, where he faces harm, which, in turn, helps Australia ensure compliance with its international non-refoulement obligations.
• Keeping the applicant, who has a criminal record, in Australia, and the domestic political pressure that this would entail.

It is possible, not to say likely, that such an agreement will be extended or replicated to include other, if not all, unlawful non-citizens with a significant criminal history who face harm in their home countries.

Sergio Zanotti Stagliorio is a barrister and lecturer in migration law.