The Albanese government’s $2.5bn deal with Nauru, under which hundreds of non-citizens will be sent to the tiny Pacific island, will face another legal challenge prompted by an alleged child abuse survivor.
Legal representatives for Abdul*, a Hazara man who was re-detained in immigration detention earlier this month, have launched a bid to prevent the 29-year-old’s imminent deportation to Nauru by challenging its compatibility with Australia’s constitution.
Alison Battisson, Abdul’s lawyer, said his case was “extraordinary and deeply troubling”, owing to claims he was groomed and sexually abused by a carer as a minor after settling in Australia.
The new legal challenge, which was filed in federal court on Tuesday, comes weeks after the high court dismissed an appeal by an Iranian man, known as TCXM, to stop authorities from exiling him to Nauru for 30 years. The man in his 60s has since been removed to the island.
Guardian Australia understands the Australian government has sent at least nine non-citizens to Nauru on 30-year visas as part of the agreement, with many more awaiting deportation from detention centres.
Battisson said Abdul’s case raised “profound legal and moral concerns” because the Australian government had a duty to protect him and failed.
In 2013, Abdul, then 16, arrived in Australia from Afghanistan and was placed in a community care arrangement after his mother passed away while on Christmas Island, according to a redacted decision record made by the Administrative Appeals Tribunal (AAT) in May 2023, seen by Guardian Australia.
The AAT record states Abdul accused his carer of grooming and sexually abusing him within six months of his arrival. Eventually, Abdul and his carer were married in a traditional Islamic ceremony just shy of his 18th birthday, he told the AAT.
By 2017, Abdul said he began to realise what had happened to him and confronted the carer, who then took out an apprehended violence order against him. Abdul was found guilty of two counts of rape against the carer in December that year and one of breaking and entering and stealing money from her. He was sentenced to four-and-a-half years in prison.
When a non-citizen commits an offence that attracts a jail sentence of 12 months or more, their visa is automatically cancelled. The AAT can set the cancellation aside after considering a range of circumstances.
The AAT ultimately set aside Abdul’s visa cancellation in May 2023 after he served his time in jail. The tribunal member ruled in his favour in part because the “system appears to have failed [Abdul] including that those tasked with protecting him played a role in his abuse”.
But he remained in indefinite immigration detention until his release in June 2024, when the government issued him a temporary visa pending his removal.
In late 2024, the Albanese government passed controversial laws allowing Australia to enter into deals under which non-citizens – those who cannot be placed into indefinite detention, cannot remain in Australia because of domestic policy and cannot be returned to their place of birth because they are stateless or at risk of persecution – could be sent to foreign countries.
Abdul was allegedly taken by 10 border force officers from his Sydney apartment early one morning in May and placed back into detention awaiting his removal to Nauru. He will remain there until the legal challenge is finalised.
Battisson said his case was one that should “shock the conscience”.
“Deporting Abdul to Nauru is not just harsh – it is indefensible. It risks condemning a deeply vulnerable person to indefinite detention with no pathway forward,” she said.
“There were multiple missed opportunities to intervene and protect Abdul when he was a minor. Those failures cannot now be erased by deporting him offshore.”
The case has also attracted the attention of the Greens senator David Shoebridge, a strident critic of the government’s deal with Nauru, who said it was a “story of failure and cruelty”.
“For years, we have seen the major parties seeking to dehumanise people seeking asylum and demonise them,” Shoebridge said.
“This is the result.”
* Name has been changed
