Andrew Giles closed off an avenue to avoid the high court case on indefinite detention before the Australian government made a failed attempt to head off defeat by deporting the plaintiff, a new document reveals.
A submission to the immigration minister, released under freedom of information, shows that on 18 September Giles refused to give NZYQ a visa or release him into community detention, nine days before the government approached its Five Eyes allies to deport him.
The government lost the high court challenge in November, resulting in the release of more than 150 immigration detainees.
In November Guardian Australia revealed that on 26 May the government considered releasing the man at the centre of the case “in light of [the] litigation risk” that his challenge would overturn a 20-year-old precedent on the legality of indefinite detention.
The second stage submission, cleared by the department on 27 August, shows this remained a live option as late as mid-September.
The document is heavily redacted and reveals little about the minister’s reasons. It notes NZYQ’s criminal history, that he “was convicted of one child sex offence and served three years and four months” in prison, and sex offender counselling had been arranged for him.
On 31 May, at the initial stages of the case, the commonwealth had conceded it was impossible to deport NZYQ, a stateless Rohingyan man who had pleaded guilty to raping a 10-year-old boy.
But on 29 August the home affairs minister, Clare O’Neil, met senior departmental officials, ordering them to progress all avenues to deport NZYQ, including asking the Five Eyes allies to take him, later summarised by an official as a “no stone unturned” approach.
The Albanese government had changed course, seeking to either end the challenge by removing NZYQ or to distinguish his case from the precedent of Al Kateb by arguing that it was not impossible to deport him.
On 14 September Giles’ office was asked if he was comfortable with the approaches to the Five Eyes. A staffer confirmed he was on 16 September.
Giles signed the submission on 18 September, declining to intervene by granting NZYQ a visa, a move which would have shut down his court challenge. The department had asked for a response by 30 September.
According to documents in the NZYQ court file, despite O’Neil’s order of 29 August it was not until 27 September that the home affairs department emailed regional directors seeking their assistance contacting Five Eyes officials to discuss removing NZYQ.
Rejections flowed within days, with officials responsible in the high commissions to the UK and New Zealand relaying their negative response on 28 September, and an email on 1 October indicating the Canadian immigration department’s response was “as close to a ‘no’ as we are likely to receive”.
The US promised to take a “hard look” at NZYQ’s case, which the commonwealth used to argue at the 8 November hearing that it was still possible the plaintiff could be deported. It was unsuccessful.
The high court ruled there was “no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future” and that detention is unconstitutional in those circumstances.
The shadow immigration minister, Dan Tehan, said “once again this highlights how poorly the government handled this issue from start to finish”.
“Clare O’Neil needs to answer why it took a month for her department to approach Five Eyes countries after having made the decision to do so. Andrew Giles also needs to answer the question: why did he cut off a possible option to keep Australia’s ability to detain people before all avenues had been exhausted to remove NZYQ from the country?”
A government spokesperson said: “These documents make it clear the government took every step to prevent the release of these individuals.”
“Community safety has always been our top priority and we continue to take all possible steps to remove people from Australia.”
In November O’Neil said the government had been “advised that it was likely that the commonwealth would win the case”. The minister later clarified that she had not been referring to legal advice, but was instead referring to operational advice about the prospects of removing the plaintiff.
Earlier in April Guardian Australia revealed that Giles was warned of legal “risks” associated with immigration detention within months of Labor’s election, including a need for his department to be able to show “concrete and robust steps” to deport some non-citizens.
A spokesperson for Giles and O’Neil said at that time: “At no stage has the opposition been able to identify an action they would have taken which would have resulted in a different outcome.”
