Andrew 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.
In response to “increased risks” after a spate of court cases under the Coalition government, the home affairs department told Giles in July 2022 it was “identifying and reviewing” all non-citizens in detention who were owed protection obligations to “explore third country options” for removal.
Despite the work to resettle long-term immigration detainees, the government did not approach third countries to take a man known as NZYQ until after it conceded on 31 May 2023 it could not resettle the stateless Rohingyan challenging immigration detention in the high court.
The submission, released under freedom of information, reveals that Giles attended a briefing with the commonwealth solicitor general on 21 June 2022 – just one month after Labor’s election – in relation to “risks associated with long-term detention”.
In the “key issues” section of the 8 July 2022 submission is the observation that the 20-year-old precedent case of Al Kateb had ruled indefinite detention lawful, although it noted the 2004 case was decided by “a bare majority of the high court”.
The rest of the paragraph about the case, overturned by the high court in November in the NZYQ decision, is redacted.
Guardian Australia understands that both Coalition and Labor governments were advised of the risk of Al Kateb being overturned and the department believed good-faith efforts to resettle those detained boosted the prospect it would be upheld.
In a section titled “third country options”, the department noted the AJL20 high court decision in 2021 had “only reduced some of the legal risk” associated with failing to deport a non-citizen “as soon as reasonably practicable”.
The department noted “one such risk crystallised” in the BHL19 case in March 2022, when the commonwealth was ordered to explain “steps taken to remove [the applicant] and why removal had not become reasonably practicable”.
“In order to comply with its obligations under the Migration Act and mitigate associated risks, the department must be in a position to evidence that concrete and robust steps to remove the individual as soon as reasonably practicable have been and are being taken in any given case.”
The department said that in response to “increased risks associated with cases where [it] is obliged to pursue third country options” it created a new body in the department which “is currently identifying and reviewing all cases” that may engage Australia’s protection obligations “to explore third country options”.
Giles signed the submission on 25 July 2022, including noting that he would be briefed on “detainees who have been found to engage Australia’s protection obligations who are unable to be removed at this time, where the department must investigate third country removal options”.
The department said that it was “highly unlikely” a person would be accepted without “at least significant ties” to the proposed third country and that their criminal history was “one of the most significant barriers to successful third country removals”.
The high court found that NZYQ “had a well-founded fear of persecution” such that he could not be deported to Myanmar, meaning he was likely among the cohort identified by the department as requiring third-country resettlement.
NZYQ, a stateless man who had pleaded guilty to raping a 10-year-old boy, launched his high court challenge on 5 April 2023.
On 26 May 2023, an assistant secretary in the home affairs department wrote to the offices of Giles and the home affairs minister, Clare O’Neil, in an email titled “NZYQ v Minister … indefinite detention / Al Kateb challenge … proposal to reconsider exercising ministerial intervention powers under the Act in light of litigation risk”.
The email indicated that the government was considering releasing NZYQ by giving him a visa to avoid the high court challenge.
On 31 May, the commonwealth conceded it “had not identified any viable options to remove the plaintiff from Australia” and that NZYQ “could not be removed from Australia, [and] there was no real likelihood or prospect of the plaintiff being removed in the reasonably foreseeable future”.
According to a document tabled in Senate estimates, Giles “was not asked to sign off on the statement of agreed facts”.
Despite the concession it was not likely NZYQ could be deported, the Australian government approached Bangladesh, Saudi Arabia and the Five Eyes allies from July to September to resettle him.
NZYQ’s counsel Craig Lenehan said in the 7 November hearing this was done “under the shadow of this litigation”, more than three years after the Migration Act created an obligation to deport him.
Lenehan said the Australian constitution required more than the “charade” of attempting to deport someone to justify their detention.
Responses from all countries were negative – except the US, which committed to take a “hard look” at NZYQ’s case.
On 31 May the commonwealth accepted it had “never successfully removed a person, who has been convicted of an offence involving sexual offending against a child” except to a country of which they were a citizen.
But after the commonwealth lost the case, O’Neil claimed that it had operational advice it was likely to be able to deport NZYQ.
In the July 2022 submission the department also identified “removal challenges” for those in detention, including “individuals who refuse to cooperate with removals processes”, “delays in obtaining foreign travel documents” and “challenges engaging with foreign governments”.
Due to redactions it is not clear if policies such as creating an offence for failure to cooperate in deportation, as proposed by Labor’s bill, were in contemplation at the time.
A spokesperson for Giles and O’Neil said: “The government took into consideration every available tool to argue strongly against the release of individuals from immigration detention, and demonstrate that current settings were constitutional”.
“At no stage has the opposition been able to identify an action they would have taken which would have resulted in a different outcome.”
