The immigration minister, Andrew Giles, has quietly lifted the ankle bracelet and curfew conditions from at least two of the three people released from detention who are challenging tough new visa rules in the high court.
Guardian Australia understands that Giles has exempted a Chinese asylum seeker known as S151 and an Afghan refugee known as AUK15 from the conditions, a move that could thwart their attempts to expedite cases against draconian emergency legislation passed after the ruling that indefinite immigration detention is unlawful.
But lawyers for S151 believe the case can still proceed on the basis of seeking a declaration the conditions were unlawful.
Lawyers for the third plaintiff, a Dinka man known as RVJB who had been convicted and served a sentence for aggravated robbery, declined to say if he is still subject to electronic monitoring and a curfew.
The RVJB challenge is expected to be heard as early as March in the first major test of the legislative package passed by Labor and the Coalition after the NZYQ high court case.
The NZYQ ruling has resulted in 149 people so far being released from immigration detention because there is no real prospect of deporting them.
Due to Coalition amendments to Labor’s original legislation, curfews and ankle bracelets must be imposed on those released unless the minister is satisfied they are not a risk to the community.
On 27 November Giles said “the curfew and electronic monitoring conditions generally would apply across the board”. As of last week, 145 people were subject to monitoring, including 138 with ankle bracelets and six back in criminal custody.
All three high court cases seek to argue that curfews from 10pm to 6am and ankle bracelets are punitive and breach the separation of powers.
The first plaintiff, S151, arrived in Australia in September 2001 on a student visa; a subsequent employer-sponsored visa was mandatorily cancelled in November 2017 due to a criminal conviction. He was released from prison into immigration detention in September 2022.
The second, AUK15, is a 37-year-old Hazara Afghan refugee, who is represented by the same legal team that won the NZYQ case.
AUK15 arrived in 2011 and was found to be owed protection but was refused a humanitarian visa on the basis he failed the character test because he committed an indecent assault in immigration detention.
David Manne, the executive director of Refugee Legal, said AUK15 was “extremely remorseful” for the offence and was kept in detention for 11 years despite committing no further offences.
The third case is brought by RVJB, who arrived in Australia aged 13 on a refugee visa, which was cancelled in 2014 after he was convicted of several crimes, including one charge of aggravated robbery in 2012. RVJB was convicted in April 2017 of taking part in a riot at the Christmas Island detention centre in October 2015.
The administrative appeals tribunal later found he was no danger to the Australian community. He was refused a protection visa in 2021 but released into community detention in December 2022 under a residence determination.
A spokesperson for Giles said “the government is unable to comment on matters before the court, nor individual matters”.
“Community safety remains the utmost priority of the government,” the spokesperson said.
“The community protection board provides recommendations to inform the management of individuals who the high court ordered to be released from immigration detention.
“The board recommends appropriate, targeted and legally robust measures on the basis of individualised assessments to ensure community safety.”
In addition to the visa condition challenges, experts have also raised concerns about the preventive detention legislation allowing the minister to apply to state supreme courts to re-detain those who have committed serious offences and pose an “unacceptable risk” of reoffending.
The constitutional expert Prof Anne Twomey has warned that although the high court has upheld similar legislation in the context of terrorism offences, it is “not clear” the constitution authorises making special laws about criminal matters unrelated to the status of being a non-citizen.
On Tuesday the opposition leader, Peter Dutton, complained that given the board was only established this week, the government many not bring a single case before Christmas to redetain any of those released.
