The immigration minister, Andrew Giles, released a businessman on a visa that did not include an ankle bracelet and curfew conditions, despite him being identified as likely affected by the high court decision on indefinite detention.
Guardian Australia understands that Safwat Abdel-Hady was released from Villawood detention centre on 13 February on a bridging visa E with conditions including reporting his address and reporting at a specified place.
But Abdel-Hady, who had been convicted of offences related to drink-spiking, was not subjected to the stricter conditions imposed on most of those released as a result of the high court’s NZYQ decision.
That was despite the home affairs department’s submission to Giles warning that if he did not intervene to release Abdel-Hady then he was likely to be released because of the high court decision ruling indefinite detention is unlawful.
Guardian Australia understands Abdel-Hady has been given a six-week visa to allow the government to attempt to arrange a special charter flight to deport him despite his complex medical needs.
On 15 January the federal circuit court granted an injunction preventing Abdel-Hady from being deported “until further order”.
According to court documents obtained by Guardian Australia, Abdel-Hady is a citizen of Austria, born in the Gaza Strip, who came to Australia in 1997.
In 2009 Abdel-Hady was convicted of unlawfully causing two people to take a stultifying drug with intent to commit an act of indecency against one of them. The convictions were quashed on appeal.
At a re-trial in November 2012 Abdel-Hady pleaded guilty to lesser charges of using poison to endanger life or inflict grievous bodily harm. He was sentenced to two years and eight months in prison, but released on the basis of time already served.
The Daily Telegraph reported that former Labor prime minister Bob Hawke attended Abdel-Hady’s appeal and had written a character reference saying he had often entertained Abdel-Hady at home and found him to always be “respectful” towards women.
According to reports, Hawke and Abdel-Hady had worked together on two business ventures, Australian Gulf Mineral Resources Corporation and International Fuel Corporation.
Guardian Australia is not suggesting that Giles was doing a favour for Abdel-Hady because he was a friend of Hawke.
Release on a bridging visa E was intended as an interim step before extraordinary measures to deport Abdel-Hady and to reduce legal risk associated with his claim to be NZYQ affected.
In February 2013 Abdel-Hady, who was married to an Australian, was granted a partner visa despite failing the character test due to his “substantial criminal record”.
In February 2015 he was convicted of assault occasioning actual bodily harm on 8 November 2012, and a common assault on 23 July 2012, but prison sentences were suspended on the condition he enter into good behaviour bonds. Abdel-Hady was also subject to an apprehended violence order for two years.
On 31 March 2017, the immigration minister, Peter Dutton, cancelled Abdel-Hady’s visa. He was detained in Villawood from 22 August 2017 and lodged unsuccessful appeals in the federal court and high court.
In his high court case Abdel-Hady’s lawyers submitted that he was “medically unfit to fly by aeroplane and cannot be removed from Australia to Austria” due to heart disease, nerve damage, deep vein thrombosis and diabetes.
They argued he was subject to “arbitrary and indefinite detention” because the commonwealth was unable to deport him.
Abdel-Hady’s lawyers unsuccessfully requested the high court reopen and overturn Al-Kateb, the precedent case of 2004 in which it had held indefinite immigration detention is lawful even where there is no prospect of deportation.
In November, the high court unanimously ruled in the NZYQ case that immigration detention is unlawful where there is “no real prospect” of it becoming practical to deport the person “in the reasonably foreseeable future”.
The immigration minister is required to table a statement in parliament by September disclosing his use of personal powers in section 195A of the Migration Act in the first half of the year.
A spokesperson for Giles declined to say if he had used the power in the week before 13 February to grant a bridging visa E.
The spokesperson told Guardian Australia “there are 149 people who have been released as a result of the high court’s decision in NZYQ”.
“Each of these people have been placed on a Bridging visa R (BVR) with strict conditions,” they 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.
“In line with their ministerial responsibilities, immigration ministers are required to finalise hundreds of cases of ministerial intervention every year.
“As is longstanding practice of successive governments, the government does not comment on individual cases.”
On Wednesday, after publication of this story, Giles told the House of Representatives that Abdel-Hady “is not part of the NZYQ cohort”.
“We continue to take every possible step to deport people who have no right to stay in this country,” he said in response to a question from the shadow minister, Dan Tehan.
“This is a matter before the court. I draw your attention … to the comments of the judge in the most recent hearing in which he said … ‘there appears to be a very fixed view on the part of the minister to be rid of this man’ – he’s right.”
Departmental data tabled in Senate estimates revealed that 36 people of the 149 released due to the NZYQ decision are not required to wear ankle bracelets.
Dutton has called for Giles’ resignation over his handling of the NZYQ case.
“You need somebody who can make tough decisions and can act in our national interest and keep Australians safe,” Dutton told 2GB Radio on 15 February.
• This article was amended on 28 February 2024 to remove a reference to Safwat Abdel-Hady as a “Saudi businessman”. As stated in the text, he is an Austrian citizen, born in Gaza.
