Jacinta Allan Michael O'Brien-Andrew GILES

Australian immigration system seems to be in chaos, particularly in light of the High Court’s decision in NZYQ. It has engulfed the Albanese government but sadly for the Albo team, it is entirely of its own making.

And it is not surprising that some commentators have criticized Ministers Andrew Giles (Immigration) and Clair O’Neil (Home Affairs).

I can fully see why. The reason is, I believe they were poorly advised when the applicant in this case NZYQ upstaged them, asking him to be removed from Australia.

Upstaged, because, being a convicted criminal, stateless Rohingya Muslim, he knew fully well, the difficulties the government was facing deporting him.

He was born in Myanmar between 1995 and 1997. He arrived in Australia by boat in 2012 and was taken into immigration detention on arrival under s 189 of the Migration Act 1958 (Cth) (“the Migration Act”). He was granted a bridging visa in 2014.

In 2016, he was convicted for sexual offence against a child after pleaded guilty in the District Court of New South Wales and sentenced to imprisonment for five years with a non‑parole period of three years and four months.

Upon his release from criminal custody on parole in 2018, he was taken again into immigration detention and has been the subject of deportation ever since.

He was successful in being assessed as a refugee on the basis that he had real fear of persecution if, being a Rohingya Muslim he was sent back to Myanmar.

But his attempts for protection visa (from within the detention canters) were unsuccessful on character grounds under s 36(1C)(b) which effectively says:

Section 36 – Protection visas–criteria provided for by this Act
          (1C)  A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

                     (a)  is a danger to Australia’s security; or

                     (b)  having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

The government was struggling to meet Australia’s protection obligations to refugees and its duty to keep the Australian community safe at the same time.

On the other hand, NZYQ did not want to be left in detention infinitely. He wrote to the Minister asking for him to be removed from Australia.

The difficulty for the government was, there were no takers for NZYQ.

The predicament the government was faced is well captured by the High Court in para 5 of its reasons:

“…No country in the world has an established practice of offering resettlement to persons in Australia who have been convicted of sexual offences against children and the Department had never successfully removed from Australia any person convicted of a sexual offence against a child to a country other than a country which recognised the person as a citizen.”

In that context, invoking original jurisdiction of the High Court, NZYQ applied to the High Court seeking a declaration that his indefinite detention, when there was no real prospect of the government being able to deport him in the foreseeable future, was unlawful.

To be precise, his detention becomes indefinite “only” when the government admits or at the point in time when it realises that it has no real prospect of deporting the detainee / removing from Australia in the foreseeable future.

The stuff-up
While dealing with NZYQ and his High Court litigation, on 30 May 2023, the government made two admissions:

– The first one being that NZYQ could not be removed from Australia on that day; and

– The second was that there was then no real prospect of NZYQ being removed from Australia in the reasonably foreseeable future.

That left very little to imagination for the High Court and it proceeded to adjudicate on the issue whether detention of an alien, who is assessed to be a danger to the Australian community, can be indefinite.

Under the Migration Act 1958, the detention has a purpose and that is to either release the detainee into the community after the grant of a visa or to and deport him/her/they (as appropriate) to another country and remove from Australia.

Clearly, an alien’s detention cannot be for detention’s sake and continue on as a substitute for it to be some sort ‘imprisonment’, to keep the alien segregated from the Australian community to keep it safe.

Both Ministers Andrew Giles and Clare O’Neil are former lawyers. I believe the admissions were made by Minister Andrew Giles who ought to have known the implications of those admissions.

For them to somehow blame others for the orders of the High Court is quite misplaced and unfair.

What I believe has been a further and much bigger stuff up, is that the government quickly moved on to release many more (140 reports suggest) who were not party to the litigation.

To me, it is a blunder representing incompetence of astronomical proportions if, all those other 140 detainees released, had not been officially assessed to be in the same boat as NZYQ. Thus the questions:

Are all of them also Rohingya Muslims from Myanmar?, if not, how did the government conclude they cannot be sent back to their country of origin?

And had the government already concluded its efforts to re-settle them in other partner /. friendly countries including “Five Eyes” countries, and had each one of them been refused by all of those countries as well like NZYQ?

The government needs to come clean on that, particularly because those detainees have been released into the communities who may be exposed.

In a layman’s language, the release of detainees is the High Court simply restating the purpose of detention under the Migration Act 1958 is.

Australians would expect its government ministers, particularly those responsible to handle the area, to understand it. Was it an oversight or they were poorly advised is anyone’s guess.

But what it means for ordinary Australians is that the government has had to release at least 141 detainees with serious criminal history into the community.

It is only natural to see people are apprehensive as to who the new person in their neighbourhood could be. Should they know? Possibly ‘yes’, unless there is a court order.

In Victoria, the Opposition’s attempts to know how many detainees have been released in Victoria in response to the High Court’s decision have not been answered.

The Allan Government has refused to confirm how many immigration detainees have been released in Victoria in response to the High Court’s decision in NZYQ.

Shadow Attorney-General, Michael O’Brien, said: “A number of the released immigration detainees committed very serious crimes making them a potential danger to the community.

“Crimes against children and sexual offences against women led to some of these people being detained in the first place.

“Victorians have a right to know how many former detainees have been released in Victoria and how they are being monitored.

So far, Victoria’s Attorney-General and Minister for Police have refused to answer how many of these people were released in Victoria and what, if any, measures the Victoria police has put in place to keep the local communities (wherever they have been released into) safe.

The communities where those detainees have been released into, should be put in the know, not only of them being released but also the measures being put in place by the administration to keep those communities safe.

That would have been the case in the past, when politics was different.

We all understand the narrative wars in politics but there have to be some common, given fundamentals, above party politics and for the nation and society.

I doubt John Howard would bring in the gun laws today if there was another Port Arthur tragedy.

Sadly, it would not be long before we feel compelled to view political parties to political cartels, brazenly endeavouring to act in the best interest of their cartel members rather than community.

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