The plaintiff who overturned the legality of indefinite immigration detention in the high court was found to be owed protection because he experienced forced labour and his brother was abducted and killed in Myanmar.
Previously unreported details of the stateless Rohingya refugee, known as NZYQ, were contained in court documents published on Tuesday, including that the judge did not find he had shown remorse in relation to his conviction for the rape of a 10-year-old boy, despite pleading guilty. The documents also show a psychologist had noted “risk factors” for possible reoffending including “attitudes” stemming from his own childhood abuse.
Guardian Australia revealed in October that NZYQ arrived by boat in September 2012 but had his bridging visa cancelled in January 2015 when he was charged with raping a 10-year-old in Australia. In January 2016 he pleaded guilty to one count of sexual intercourse with a person aged between 10 and 14 years in breach of the New South Wales Crimes Act.
He served a non-parole period of three years and four months, was released from prison and sent into immigration detention in May 2018, but was denied a safe-haven enterprise visa.
Further materials include the department’s protection visa decision record of 30 July 2022, which found NZYQ is a practising Muslim whose father, an Islamic religious teacher, had his land confiscated by Myanmar authorities.
“The applicant experienced forced labour, physical harm, limited access to education at state schools, restrictions on his movement, and his mother has also experienced limited access to medical services in Myanmar,” a home affairs department delegate said.
NZYQ was born in 1995, 1996 or 1997 in Rakhine state. NZYQ “unlawfully” travelled from Myanmar through Bangladesh, Malaysia and Indonesia en route to Australia, where one of his brothers lives.
The department accepted that another of NZYQ’s brother was “arbitrarily detained”, tortured and killed by Myanmar authorities in 2016, and that it was “plausible” this was due to his Rohingya race and Muslim religion.
It also found that, following NZYQ’s departure, “his family home has been destroyed by the authorities, his mother and remaining siblings have fled Myanmar and currently reside in Bangladesh unlawfully”. It concluded NZYQ had a well-founded fear of persecution.
The department found that although it was “possible” NZYQ was a minor at the time of his offence, he was tried and sentenced as an adult and his age of 19 was “not disputed” during sentencing. The delegate concluded he was an adult at the time.
The decision also contains excerpts of the judge’s sentencing remarks noting that the complainant was “vulnerable” by reason of his age, “did not consent and believed that he would get in trouble with his father”.
The nature and extent of sexual intercourse was “significant” including penile penetration of the child’s anus of “significant gravity”, the judge said. The delegate concluded this was a “serious” offence involving violence.
The delegate noted mitigating factors in NZYQ’s offending including that he had no prior convictions, was a person of good character, and that his upbringing included “being subject to physical and sexual abuse as a child”.
The delegate noted the judge found NZYQ “did not sufficiently recognise that his offence was likely to physically injure and psychologically affect the victim”, did not find he accepted responsibility for his actions and did not find he had shown remorse.
The delegate said a psychologist had noted “risk factors” for possible reoffending including “attitudes supportive of sexual offending as related by his own childhood abuse”.
The department concluded there were “reasonable grounds” to consider that NZYQ “was a danger to the Australian community” because of the conviction. The visa refusal was upheld by the administrative appeals tribunal (AAT) in March 2022.
In the AAT proceeding in 2022, NZYQ’s corrections officer said he “reports some level of remorse for his offending” and a clinical psychologist said he had “advanced in his understanding … towards taking responsibility for his actions and expressing sadness and remorse for his behaviour”.
On 8 November the high court ruled in favour of NZYQ, triggering the release of 93 people in long-term detention for whom there is no “real prospect” that removal will be “reasonably practicable in the foreseeable future”.
On Wednesday the home affairs minister, Clare O’Neil, confirmed as “accurate” a Guardian Australia report that the government considered releasing NZYQ with a visa in May 2023 to prevent losing the high court case.
O’Neil also did not rule out enacting a terrorism offence-style system of preventative detention orders after the high court gives its reasons for the decision to release NZYQ.
“There are people in this cohort … who the Australian government has been forced to release who have committed horrendous crimes,” she told Radio National.
“If I had any legal power to keep them in detention I would be using it right now to do so.”
Earlier in November Guardian Australia revealed the majority of the 93 had their visas cancelled on character grounds, although advocates have noted not all of these people have been convicted of offences in Australia.
Some 21 had already been released into community detention on residence determinations, including five by the former Coalition government.
