SYDNEY — Lawyers for an Afghan asylum seeker known as Abdul filed a federal court challenge in Sydney on Tuesday seeking to prevent his deportation to Nauru, arguing that his removal is incompatible with the Australian constitution. Abdul will remain on Nauru until the legal challenge is finalised.

The challenge targets a $2.5 billion agreement between the Albanese government and Nauru that provides for hundreds of non-citizens to be sent to the Pacific island. At least nine non-citizens have already been sent to Nauru on 30-year visas under the arrangement.

"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." lawyer Alison Battisson said.

Abdul arrived in Australia from Afghanistan in 2013 at the age of 16 and was placed in a community care arrangement after his mother died on Christmas Island, according to a redacted Administrative Appeals Tribunal decision record from May 2023. In that record, Abdul said he was groomed and sexually abused by his carer within six months of his arrival, and that he and the carer were married in a traditional Islamic ceremony just before his 18th birthday.

By 2017, Abdul said he realized what had happened and confronted the carer, who then obtained an apprehended violence order against him. In December 2017, he was found guilty of two counts of rape against his carer and one count of breaking and entering and stealing money from her, and was sentenced to four and a half years in prison.

Under Australian law, when a non-citizen commits an offence carrying a jail sentence of 12 months or more, their visa is automatically cancelled, although the Administrative Appeals Tribunal can set aside such a cancellation. In May 2023, the AAT set aside Abdul's visa cancellation after he served his prison sentence, with the tribunal member ruling that the system appeared to have failed Abdul and that those tasked with protecting him had played a role in his abuse.

Abdul remained in indefinite immigration detention until his release in June 2024, when he was issued a temporary visa pending his removal. In late 2024, the Albanese government passed laws allowing Australia to enter into deals under which certain non-citizens who cannot be placed into indefinite detention, cannot remain in Australia, and cannot be returned to their country of origin could be sent to foreign countries. In May, ten border force officers removed Abdul from his Sydney apartment and placed him into immigration detention pending his removal to Nauru.

The High Court has separately dismissed an appeal by an Iranian man in his 60s known as TCXM seeking to stop his exile to Nauru for 30 years, and he has since been removed to the island.

"For years, we have seen the major parties seeking to dehumanise people seeking asylum and demonise them. This is the result." Senator David Shoebridge said.