By sending non-visa holders to Nauru, Australia is shifting its responsibilities
- Written by: Mary Anne Kenny, Associate Professor, School of Law, Murdoch University
The Home Affairs minister, Tony Burke, revealed late last week he had visited Nauru in August and signed[1] a memorandum of understanding with its government.
Under the agreement, Nauru will grant long-term visas to members of a group known as the “NZYQ cohort”. These people, many of whom have had visas cancelled on character grounds or committed crimes, are in Australia on bridging visas granted after a 2023 High Court case[2] that centred on this group.
In return, the Australian government has agreed[3] to pay A$408 million in the first year and $70 million per year to support “resettlement efforts”. However, the exact details remain unclear.
How did we get here?
This agreement follows a 2023 High Court decision[4] in a case about a Rohingya man who was given the pseudonym NZYQ[5].
The judge in this case ruled that indefinitely detaining individuals who cannot be removed from Australia is unconstitutional.
After this decision, hundreds of non-citizens (many of whom had been convicted of crimes and had served their prison sentences) were released from immigration detention into the Australian community on bridging visas.
In December 2024, the government passed legislation[6] that allowed for the government to transfer non-citizens, including those in the NZYQ group, to third countries (in this case Nauru) under “third country reception arrangements.”
Just over 350 people[7] are now in the NZYQ group.
Environment Minister Murray Watt has said the Nauru deal will involve “hundreds[8]” from the NZYQ cohort. The government plans to gradually increase transferring people to Nauru, but hasn’t specified total figures.
Meanwhile, a bill[9] introduced to parliament last week builds on laws passed in 2024.
These proposed laws[10] remove the requirement for natural justice or procedural fairness when the government enters into or implements third-country reception arrangements.
This means that if a person is told they will be sent to Nauru, the government is not required to give them an opportunity to explain how the transfer might affect them personally.
It wouldn’t have to consider their individual circumstances before making the decision.
How will Nauru be able to support these people?
A recent Federal Court judgment[11] revealed Australia and Nauru had entered into preliminary agreements for the long-term reception arrangements involving financial support and phased settlement of people in the NZYQ cohort.
The arrangement includes specific conditions for long-term stay visas and Nauru’s commitment to support settled individuals. This includes access to housing, health care, education and work rights.
But Nauru is a small, poor[12] island nation, with a population of around 13,000.
It has high unemployment and is increasingly vulnerable to the effects of climate change, such as sea-level rise[13].
Critics of the plan have raised[14] concerns about the limited level of health care available to asylum seekers transferred to Nauru.
Nauru is also currently dealing with an outbreak of dengue fever[15], resulting in two deaths.
What obligations does Australia have to non-citizens who’ve committed crimes?
The individuals in the NZYQ group cannot be returned to their country of origin.
There are a variety of reasons for this. For some, there may be practical or legal barriers that prevent their removal. They may, for instance, have no recognised nationality and no country to accept them.
For others, it may be because international law prevents Australia returning them to places where they may face harm. This principle is known as “non-refoulement”.
These obligations arise under Australia’s commitment to the 1951 UN Refugee Convention and other international human rights obligations.
Under these commitments, Australia cannot return people to places where they may face a risk of harm – such as torture; cruel, inhuman, degrading treatment; or punishment.
But sending these individuals to Nauru doesn’t solve the issue; it just means the Australian government is shifting its responsibilities for these non-citizens elsewhere.
While the removal of these non-citizens to Nauru may not be a direct breach of Australia’s non-refoulement obligations, the Australian government has obligations to ensure the ongoing protection of human rights of these individuals.
These rights include access to health, housing, education and protection from arbitrary detention and “chain refoulement”. That’s where people get passed from one country to another until they end up back at their country of origin, where they face significant danger.
What could Australia do instead?
Those in the NZYQ group have already served prison sentences[16] for their crimes in Australia.
Some were convicted of offences committed while they were children and have not reoffended for some period of time.
Many have spent long periods in detention (some longer than they have served in prison). Many have families and long-standing connections to Australia.
While these people have been painted as representing a risk or danger to the Australian community, their status as a non-citizen makes them vulnerable to this removal over an Australian citizen who may have committed the same, or worse, criminal acts.
It is unclear whether any of the funding provided by the Australian government under this deal will actually ensure effective rehabilitation or support for this cohort in Nauru.
Without proper support, this could create the risk for re-offending in Nauru and lead to their Nauruan visa being cancelled.
Instead of working to rehabilitate or reintegrate this cohort in the Australian community, Australia is exploiting Nauru’s financial dependence and status as a poorer country to absorb these people into their community.
References
- ^ signed (minister.homeaffairs.gov.au)
- ^ 2023 High Court case (www.abc.net.au)
- ^ agreed (www.abc.net.au)
- ^ 2023 High Court decision (www.abc.net.au)
- ^ NZYQ (www.hcourt.gov.au)
- ^ legislation (theconversation.com)
- ^ 350 people (www.homeaffairs.gov.au)
- ^ hundreds (www.sbs.com.au)
- ^ a bill (www.aph.gov.au)
- ^ proposed laws (www.abc.net.au)
- ^ Federal Court judgment (www.austlii.edu.au)
- ^ poor (www.dfat.gov.au)
- ^ sea-level rise (www.abc.net.au)
- ^ raised (asrc.org.au)
- ^ currently dealing with an outbreak of dengue fever (reliefweb.int)
- ^ already served prison sentences (www.sbs.com.au)
Authors: Mary Anne Kenny, Associate Professor, School of Law, Murdoch University
