Andrew Giles has a reputation as the most sued person in Australia.
A conscientious man in a controversial portfolio, for the immigration minister being the respondent to literally hundreds of cases a year just comes with the territory.
When the high court ruled in the NZYQ decision that indefinite detention is unlawful if it is not possible to deport the person, overturning a two-decade-old precedent, the legal terrain got even rockier.
The Albanese government concedes it is facing three years of litigation to determine the bounds of when a person has “no real prospect” of their removal from Australia “becoming practicable in the reasonably foreseeable future”.
The rushed legislation imposing ankle bracelets and curfews, and criminal penalties for breach of visa conditions, is also under challenge.
This is the pipeline of cases the government is facing and, in some cases, aggressively managing, to prevent another disastrous defeat.
‘Uncooperative’ detainees
On 17 April the high court will hear the case of ASF17, an Iranian man detained for more than a decade who refuses to meet Iranian authorities because he fears for his life if he is removed to Iran because he is bisexual.
The case will test whether people in immigration detention must be released if their refusal to cooperate has prevented them being deported.
Leaked internal documents reveal the government believes more than 170 people might have to be released if it loses the case.
In public and in private the government is confident of victory. Nevertheless it is attempting to legislate powers to require people to cooperate in their deportation, a tool it can use to remove people from Australia if it loses.
Ned Kelly Emeralds, a former detainee freed by the federal court known by the pseudonym AZC20, has applied to intervene in the case. He is represented by barristers led by Craig Lenehan SC, who won the NZYQ case – a dream team that could become a nightmare for the government.
People owed protection
Lawyer Zia Zarifi told Guardian Australia that NZYQ meant that if the government was going to keep people in immigration detention “the sole reason must be deportation” or their application for a protection visa was still being considered.
But the government has kept some people who have already been found by the administrative appeals tribunal to be owed protection in detention.
One such person is JPPS, a man who faces the death penalty in Lebanon over terrorism accusations, which he denies. The government has kept him in detention while it appeals against the finding he is owed protection.
Some plaintiffs in this category have been granted protection visas and released from detention but Zarifi said the claim for a declaration that their detention was unlawful could continue.
Compensation claims inevitable
In November the solicitor general, Stephen Donaghue, told the high court claims for compensation would be “inevitable” if it ruled indefinite detention was unlawful and “undefendable” in cases where it conceded the people had been detained while it was impossible to deport them.
In January a stateless Kurdish man, known as DVU18, released from immigration detention filed in the high court seeking “aggravated” and “compensatory” damages for alleged false imprisonment. The claim has been remitted to the federal court.
Guardian Australia is aware of similar cases in the federal court seeking compensation, even though the government thought indefinite detention was lawful due to 2004’s Al-Kateb high court decision.
Ankle bracelets and curfews
In addition to compensation for detention, DVU18 was also challenging the legality of the ankle bracelet and curfew conditions – but the conditions were lifted off him, resulting in him withdrawing this part of the claim.
Guardian Australia revealed in December that Giles was quietly removing the ankle bracelets and curfew conditions from people challenging them in court. This resulted in cases being withdrawn – five in total by February, according to home affairs officials in Senate estimates.
Legal practitioners believe the government is aggressively managing the caseload to delay a ruling striking down the visa conditions, or at least to pick its preferred plaintiff and legal team to face off against.
When questioned, Giles has said conditions are determined on the advice of the community protection board. On Wednesday officials revealed that 73 of the 152 people released as a result of NZYQ no longer need ankle bracelets – so it is not just those bringing legal challenges who are having them removed.
A stateless refugee born in Eritrea known as YBFZ is also challenging the ankle bracelets and curfews. The case is going ahead with negotiations to agree facts.
In December and January YBFZ was charged with offences related to failing to observe curfew and charge his ankle monitor but these have been dropped.
Invalid bridging visas
In March the Albanese government admitted that the bridging visas granted to those released from detention after NZYQ were invalid due to a technicality. Some 10 people had already been charged with breaching visa conditions and these charges were dropped.
Guardian Australia understands that the Human Rights Law Centre believes that a case for compensation for imposition of unlawful visa conditions before the technicality was corrected is “readily available” if and when former detainees want to bring a case.
A class action is being considered and is anticipated by the government, although it is unlikely to be launched until after the high court rules on validity of ankle bracelets and curfews generally.
Hannah Dickinson, principal solicitor at the Asylum Seeker Resource Centre, said it is “appropriate that people have redress for the unlawful imposition of invasive” conditions.
Aggregate sentences bill
In December 2022 the commonwealth lost the Pearson case in the full federal court. The court ruled aggregate sentences do not trigger automatic visa cancellation, prompting the release of more than 100 people who had previously served aggregate sentences of 12 months or more in prison.
Labor and the Coalition teamed up to pass laws retrospectively authorising the cancellation of visas of people who had been released.
The legality of these laws has been upheld twice in the case of JZQQ, a man who was sentenced to 15 months in prison for offences of intentionally causing injury and threats to kill; and Kingston Tapiki, a New Zealander sentenced to an aggregate term of 12 months’ imprisonment for offences of affray and assault.
Both are now appealing to the high court, which has agreed to hear the cases.
