Home Affairs boss admits her department didn’t warn Giles on detainee visa challenges

Home Affairs head Stephanie Foster has admitted her department breached protocol by failing to warn Immigration Minister Andrew Giles about dozens of legal decisions to allow foreign-born criminals to stay in Australia and free a detainee who allegedly went on to commit murder.

The departmental secretary made the sensational admission before a parliamentary committee hours after the embattled minister revealed he was reviewing the controversial tribunal decisions and said he had called on his department to explain why he was kept in the dark about the legal challenges.

Home Affairs secretary Stephanie Foster says the department failed to warn Immigration Minister Andrew Giles about a slew of legal decisions allowing hardcore criminals to stay in Australia.Credit: Alex Ellinghausen

Foster told the Senate hearing on Tuesday night she knew of five Administrative Appeal Tribunal cases where the department had failed to inform Giles, before another official said the caseload kept from the minister was more like 30 after Coalition senator James Paterson recited a litany of reported cases.

“The department did fail him, we did not meet our agreed protocol and in particular we did not put advice before him in any way,” Foster said of several cases that have received significant media coverage, including the reinstatement of visas for several child sex offenders.

After it was put to her that some AAT decisions went back a year, Foster said she was trying to find out whether Giles had been left in the dark that for that long.

“We had agreed to a protocol with Minister Giles to bring to his attention cases of a particular nature … and we did not adequately resource that function, and it was not being done in a timely way, and it has not advised Minister Giles of [those particular cases],” she said.

Immigration Minister Andrew Giles faced a barrage of questions over a ministerial direction.Credit: Alex Ellinghausen

When Paterson put to her that it was “extraordinary” the department failed to warn Giles, Foster agreed: “It is, senator, and I regret very much that this has happened.”

She said she became aware of the issue in the past few days following media coverage, blaming limited resources for the oversight. Foster said the failure was ultimately hers, adding the department was now throwing resources at the issue.

It is the second political controversy to strike Foster this year after she blindsided Giles and Home Affairs Minister Clare O’Neil by released a document to the Senate on February 12 detailing the number of murderers, rapists and violent offenders freed from immigration detention following November’s landmark High Court ruling outlawing indefinite immigration detention.

Giles has been under fire from the Coalition over a ministerial direction he issued in January last year that has been linked to several decisions by the Administrative Appeals Tribunal preventing foreign criminals with longstanding connections to Australia from being deported.

Opposition Leader Peter Dutton asked Giles in parliamentary question time on Tuesday about the case of a New Zealand citizen who was allowed to stay in Australia despite raping his stepdaughter. Government lawyers had unsuccessfully argued for the man’s visa to be revoked.

Giles told parliament he had cancelled the man’s visa and it had remained cancelled by Home Affairs until the tribunal overruled his decision.

“Now, I believe it is a decision that should still be cancelled, and I advise the House also that I have prioritised a number of cases for urgent cancellation consideration,” Giles said.

This masthead revealed on Tuesday that almost one in five released detainees had been charged with fresh crimes since the court decision, which prompted questions about when the government would use as-yet-untested preventative detention laws to lock up those at high risk of offending again.

Compounding Labor’s immigration woes, Giles faced a barrage of questions in parliament over the tribunal’s interpretation of ministerial direction 99, which says significant weight must be given to a person’s ties to Australia.

The ministerial direction was issued on January 23, 2023 to assuage the New Zealand government’s concerns that its citizens were being deported in large numbers even when they had stronger ties to Australia than to New Zealand.

Last week, it emerged that the tribunal had in April released former immigration detainee Emmanuel Saki, who was charged with murder the following month. The tribunal reinstated Saki’s visa on March 27, partly due to direction 99.

Questioning Foster over the bureaucratic failure, Paterson said, “someone has allegedly been murdered as a result of someone being released following a successful AAT appeal”.

Giles told question time he had since re-cancelled Saki’s visa, “and as the matter is before the courts, I will say nothing more”.

Giles has also issued a “please explain” to his department, and told parliament a number of cases before the tribunal were not raised with him.

“I’ve asked the department for an explanation,” he said. “My department is now looking at all these cases as a priority, and they are all under cancellation consideration.”

Following a report by The Australian, the Senate hearing heard late on Tuesday night that among the cases Giles was unaware of was a British man who had attacked women on 26 occasions.

Agriculture Minister Murray Watt, representing Giles in the hearing, said tribunal members were interpreting the ministerial direction in a way that no one in government had intended, adding the AAT had to weigh up ties with Australia with the seriousness of the offending.

“Frankly AAT members should be considering those issues extremely seriously,” he said.

A departmental submission tabled in the hearing on Tuesday showed that, according to a preliminary analysis, the ministerial direction would result in about a quarter of visa revocations being overturned.

Home Affairs’ latest visa cancellation statistics show that, as of December 31, there was a significant reduction of visa cancellations on character grounds – particularly for New Zealanders – in the first six months of 2023-24.

From 2019-20, when the Coalition deported 939 people on character grounds, numbers have plummeted by roughly 75 per cent post-pandemic, to 244 so far in the 2023-24 financial year.

But a department spokesperson said the majority of cancellations were not subject to that ministerial direction.

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