A non-citizen convicted of offences related to alleged drink-spiking who Andrew Giles said he wanted to be “rid of” has had a major win in court, with the commonwealth conceding he cannot be deported.
On Tuesday the federal circuit court made declarations that “there was no real prospect of removal” of businessman Safwat Abdel-Hady currently or in the period 28 July 2022 to 13 February 2024 and his detention was not authorised by the Migration Act for those 18 months.
The findings open the way for Abdel-Hady to pursue damages for false imprisonment in that period, which includes three months after the high court ruled on 8 November 2023 in the NZYQ case that indefinite immigration detention is unlawful where there is no prospect of removal.
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.
On 31 March 2017, then immigration minister, Peter Dutton, cancelled Abdel-Hady’s visa. He was detained in Villawood from 22 August 2017.
Guardian Australia revealed that immigration minister, Andrew Giles, had released Abdel-Hady on 13 February on a bridging visa E.
Despite the home affairs department’s submission to Giles warning that if he did not release Abdel-Hady then he was likely to be released because of the high court decision, Giles claimed that Abdel-Hady was “not part of the NZYQ cohort”.
Guardian Australia understands that was because the government had believed it could arrange a special charter flight to deport him despite his complex medical needs.
Abdel-Hady’s lawyers have said he is “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.
On 28 February Giles told the House of Representatives the government was taking “every possible step to deport people who have no right to stay in this country”.
Giles said the Abdel-Hady matter was “before the court” but noted comments from the judge that “there appears to be a very fixed view on the part of the minister to be rid of this man”. “He’s right,” Giles said.
A government spokesperson told Guardian Australia: “He is still right.”
But on Tuesday the federal circuit court’s judge Douglas Humphreys declared by consent that “there is currently not a real prospect of the removal of the applicant from Australia to Austria becoming practicable in the reasonably foreseeable future by any means aside from commercial airliner” and he was “not currently fit for travel” by that means.
The judge declared that “throughout the period 28 July, 2022 to 13 February, 2024 there was no real prospect of removal of the applicant from Australia becoming practicable in the reasonably foreseeable future”, which was the test for indefinite immigration detention being unlawful stated by the high court in the NZYQ ruling.
“On that basis, the applicant’s detention during that period was not authorised” by the relevant two sections of the Migration Act, the judge said.
In Abdel-Hady’s original high court case, before aspects were remitted to the federal circuit court, he had sought damages for false imprisonment.
On 1 November, 2021 Justice Stephen Gageler said: “If the plaintiff were to be successful in obtaining a declaration … that the whole or some part of his detention has been unauthorised, that part of the matter by which he seeks damages for false imprisonment might well later be remitted to the federal court.”
Humphreys noted that Abdel-Hady may make a “claim for damages for false imprisonment either in these proceedings … or in any new proceedings”.
He said the commonwealth could defend the claim “except to the extent that such [a] defence would be inconsistent with the terms of the declarations”.
The judge also noted that Abdel-Hady could be redetained “in the event that changed circumstances mean” his removal becomes practical.
The federal circuit court matter has been closed, with the commonwealth ordered to pay Abdel-Hady’s costs and hearing dates in June vacated.
A government spokesperson said: “The government will continue to deport individuals who have no right to be in Australia.”
Abdel-Hady declined to comment. A home affairs department spokesperson said it “does not comment on individual cases”.
