Peter Dutton, as immigration minister, exercised a discretion to allow the claimant whose case overturned indefinite immigration detention to reapply for a visa after being convicted of raping a 10-year-old, the government has revealed.
After weeks of attacks from the Coalition over its handling of the fallout from the High Court’s ruling that indefinite immigration detention is unlawful, Immigration Minister Andrew Giles hit back in question time on Wednesday, claiming ‘this is ultimately [Dutton’s] mess’.
But the government is facing fresh legal problems with two new cases, one of an Afghan refugee known as AUK15, who Giles released into community detention in February, and another of a Dinka man who was similarly released in December 2022.
It also follows news that law enforcement agencies have located a man who was able to leave immigration detention without electronic monitoring because Australian Border Force failed to read him the terms of his visa.
Guardian Australia understands that the man who escaped left Melbourne’s Broadmeadows immigration detention centre on 23 November, immediately after being informed of his release.
The Albanese government is relying on the Coalition to help it legislate a ‘preventative detention’ regime to allow courts to order the re-detention of some of those released as a result of the High Court’s NZYQ decision.
On Wednesday, Home Affairs Minister Clare O’Neil said she would prefer to see this extended beyond those convicted of serious crimes.
But lawyers have warned against rushing into legislation, as the Albanian government is being sued again over new strict ankle bracelet and curfew conditions for those released from detention.
The claimant in the original High Court case, a stateless Rohingya refugee known as NZYQ, was convicted on 28 January 2016 of having sexual intercourse with a person aged between 10 and 14.
In question time on Wednesday, Giles told the House of Commons that he had “not let NZYQ out”, as ordered by the court in early November.
“But I can tell you who made a decision … the Leader of the Opposition,” the Immigration Minister said.
“That’s right, the Leader of the Opposition intervened … to allow the convicted paedophile at the centre of the High Court case, NZYQ, to apply for a new visa instead of seeking to have him removed from Australia.”
Guardian Australia has confirmed that on 11 February 2016, Dutton lifted a bar to allow NZYQ to apply for a safe haven business visa. The application was rejected by a ministerial delegate in July 2020.
But Giles said the lifting of the bar had “allowed [NZYQ] to remain in this country” and “remain in Australia until the day the High Court makes its decision”.
“This is ultimately [Dutton’s] mess. Once again this opposition leader talks tough but acts weak.”
O’Neil was asked if she had approved the 30 May 2023 special case, which acknowledged the impossibility of deporting NZYQ. She replied that she made “no apologies for doing everything I could to get this person out of the country” after that date and contrasted this with Dutton, who she said was “the reason NZYQ was here”.
After the High Court’s 8 November ruling in the NZYQ case, Labour and the Coalition passed emergency legislation imposing ankle bracelets and curfews, generally from 10pm to 6am, which are mandatory unless the minister decides the person is not a risk to the community.
The government is facing a new High Court challenge from a 37-year-old Hazara Afghan refugee, represented by the same legal team that won the NZYQ case.
Refugee Legal’s executive director, David Manne, said the case showed the danger of legislation ‘disproportionate’ to the risk posed by the 141 people released so far.
The High Court case argues that ankle bracelets and curfews amount to punishment and cannot be imposed by the executive, a similar line of argument to another claimant, S151, who launched a challenge last week.
In February, Giles released the man on a residence order, one of 21 people already in community detention when the High Court made its ruling, including five released by the Coalition.
Manne said his client had lived for nine months “without an ankle bracelet” at a specified location, but was “relatively free to live in the community”.
A third case was brought by the Asylum Seeker Resource Centre on behalf of a Dinka man who arrived in Australia aged 13 on a refugee visa that was cancelled in 2014 after he was convicted of several offences, including aggravated robbery.
The Administrative Appeals Tribunal later found that he was not a danger to the Australian community. He was refused a protection visa in 2021, but was released in December 2022 on a residence determination.
On Tuesday, after the High Court released the reasons for the NZYQ decision, O’Neil revealed that the government would introduce legislation in this session to create a preventative detention regime for those who have been released.
