Andrew Giles released at least four people from immigration detention on visas without the strictest conditions, bypassing an independent board despite the non-citizens being identified as “likely” to be affected by the high court ruling on indefinite detention.
A freedom of information request to the home affairs department has revealed that between 8 November and 15 February the immigration minister released four people using personal ministerial powers, in some cases just hours before their release through a channel with greater monitoring.
This included Safwat Abdel-Hady, a man convicted of offences related to alleged drink-spiking, who Giles released on 13 February after a departmental submission warned he was “likely” to be owed release due to the court decision.
Abdel-Hady later won declarations from the federal circuit court that it was not possible to remove him from Australia and that his detention was not authorised by the Migration Act for 18 months, findings that could allow him to pursue damages for false imprisonment.
Under protocols established after the high court ruled that indefinite detention is unlawful, the Department of Home Affairs is supposed to release non-citizens when it judges that it is not reasonably practical to deport them from Australia.
These non-citizens are counted in official statistics and receive bridging visas R, which attract new strict conditions of curfews and electronic monitoring. The conditions can be lifted by the minister or a delegate, on advice from the community protection board.
In its response to the FoI, the department revealed on seven occasions it had asked if Giles wanted to use his personal power in section 195A of the Migration Act to release non-citizens on other visas, despite them being assessed as “likely” to be eligible for release due to the high court’s NZYQ decision.
Four such releases from detention were approved by Giles and documents partially released. A further three submissions were “exempt in full” from release under FoI.
One submission, sent to and signed by Giles on 15 December, said the non-citizen was “expected to be released today”, offering the minister a chance to use his personal power to release him before 2pm “to avoid a circumstance of inappropriate detention”. The submission noted the unnamed detainee “is affected by the high court decision”.
Another submission, cleared and signed on 29 December, said the non-citizen “is in detention and has been considered to be in scope of the decision in NZYQ”.
These submissions raise questions about whether non-citizens are being released as soon as they are assessed as eligible.
Advocates suggest it is not uncommon for there to be delays in release, blaming politicisation of the high court decision and government wariness about what conditions to apply to their visas.
In the four submissions authorising release, the non-citizens were granted bridging visas E, which allow them to remain in Australia “temporarily while they resolve their immigration status to achieve a status resolution outcome (a substantive visa or departure from Australia)”.
The submissions all note the non-citizens who benefited from release “had a visa cancelled under section 501 of the act” for failing the character test.
Giles applied conditions to their visas to report at a specified place, notify authorities of a new address, not engage in criminal behaviour or disruptive activities and, in some but not all cases, not to acquire weapons.
The department noted that granting a bridging visa E would mean the non-citizens would not be subject to a curfew or required to wear an ankle bracelet. Recipients were allowed to work, which the department said would allow them to financially support themselves and “reduce the risk of undesirable behaviour” in the community. In three cases the non-citizen had access to Medicare, with the exception of Abdel-Hady.
Ministerial intervention was reported in statements to parliament, in which Giles said he had decided as a “discretionary and humanitarian act it is in the interests of Australia as a humane and generous society” to grant the visa.
Due to these generic statements and extensive redactions in the FoI documents, it is not clear why these cases received ministerial intervention while others in the NZYQ cohort were released under stricter conditions.
The power used in 195A is the same one that the former home affairs minister Peter Dutton used to grant visas to two au pairs, leading to a parliamentary inquiry calling for greater transparency on such interventions.
It is not clear whether Giles has used ministerial intervention to release other non-citizens since 15 February, with further statements to parliament for January to June not due to be tabled until September.
A government spokesperson said: “The government has complied with the orders of the high court which required the immediate release of these individuals – as any government would have to.
“The high court’s decision does not prevent us from removing individuals from this country – and we will continue to take every step to do so.”
