Peter Dutton as immigration minister exercised a discretion allowing the plaintiff, whose case overturned indefinite immigration detention, to reapply for a visa after he was convicted of raping a 10-year-old, the government has revealed.
After weeks of Coalition attacks for its handling of the fallout from the high court’s ruling that indefinite immigration detention is unlawful, the immigration minister, Andrew Giles, hit back in question time on Wednesday by claiming “this ultimately is [Dutton’s] mess”.
But the government is facing fresh legal troubles with two new cases, one from an Afghan refugee known as AUK15, who Giles released into community detention in February and another from a Dinka man similarly released in December 2022.
It also follows news that law enforcement agencies have located a man who was able to leave immigration detention without electronic monitoring because Australian Border Force failed to read out visa conditions to him.
Guardian Australia understands that the one that got away left the Melbourne immigration detention centre in Broadmeadows on 23 November immediately after he was told of his release.
The Albanese government is relying on the Coalition to help it legislate a “preventive detention” regime to allow courts to order re-detention of some of those released as a result of the high court’s NZYQ decision.
On Wednesday the home affairs minister, Clare O’Neil, made a statement of intent that she would prefer this extend beyond those convicted of serious crimes.
But advocates have warned not to legislate in haste, as the Albanese government is being sued again for new strict ankle bracelet and curfew conditions on those released from detention.
The plaintiff in the original high court case, a stateless Rohingya refugee known as NZYQ, was convicted of sexual intercourse with a person aged between 10 and 14 years on 28 January 2016.
In question time on Wednesday Giles told the lower house that he “didn’t let” NZYQ out, it was ordered by the court earlier in November.
“But I can tell you who did make a decision … the leader of the opposition,” the immigration minister said.
“That’s right, the leader of the opposition intervened … to allow the convicted paedophile at the centre of the high court case NZYQ to apply for a new visa instead of seeking to have him removed from Australia.”
Guardian Australia has confirmed that on 11 February 2016, Dutton lifted a bar to allow NZYQ to apply for a safe haven enterprise visa. The application was rejected in July 2020 by a delegate of the minister.
But Giles said lifting the bar had “enabled [NZYQ] to stay in this country” and “remain in Australia until the day the high court made its decision”.
“This ultimately is [Dutton’s] mess. Once again, this leader of the opposition talks tough but he acts weak.”
O’Neil was asked if she had approved the 30 May 2023 special case that conceded it was impossible to deport NZYQ. She replied that she made “no apologies for doing everything I could to get this person out of the country” after that date and contrasted this with Dutton, who she said was “the reason that NZYQ was here”.
After the high court’s 8 November ruling in the NZYQ case, Labor and the Coalition legislated an emergency bill imposing ankle bracelets and curfews, generally from 10pm to 6am, which are mandatory unless the minister judges the person is no risk to the community.
The government is facing a fresh high court challenge brought by a 37-year-old Hazara Afghan refugee, who is represented by the same legal team that won the NZYQ case.
The executive director of Refugee Legal, David Manne, said the case demonstrates the danger of legislating “out of all proportion” to the risk posed by 141 people released so far.
The case, lodged in the high court, argues that ankle bracelets and curfews amount to punishment, and cannot be imposed by the executive government, a similar line of argument to a separate plaintiff, S151, who launched a challenge last week.
In February, Giles released the man on a residence determination, one of 21 people who were already in community detention when the high court handed down its ruling, including five released by the Coalition.
Manne said his client had lived for nine months “without an ankle bracelet” at a specified place but was “relatively free to live in the community”.
A third case has been lodged by the Asylum Seeker Resource Centre on behalf of a Dinka man, who arrived in Australia aged 13 on a refugee visa, which was cancelled in 2014 after he was convicted of several crimes, including one case of aggravated robbery.
The administrative appeals tribunal later found he was no danger to the Australian community. He was refused a protection visa in 2021 but released in December 2022 under a residence determination.
On Tuesday after the high court released reasons for the NZYQ decision, O’Neil revealed the government will legislate this sitting fortnight to create a preventive detention regime for those who had been released.
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