Andrew Giles shifts blame on detainee release to Administrative Appeals Tribunal

Labor has accused the AAT of misinterpreting its changes to immigration laws after the tribunal cited directions from Andrew Giles in its decision to release a detainee since charged with murder.

Immigration Minister Andrew Giles. Picture: NCA NewsWire / Martin Ollman

The Albanese government has accused the Administrative Appeals Tribunal of misinterpreting its changes to immigration laws, after the AAT cited directions from ­Immigration Minister Andrew Giles in its decision to release a ­detainee who has since been charged with murder.

Sudan-born Emmanuel Saki, 29, was charged earlier this month over the stabbing death of 22-year-old Bosco Minyurano on Mother’s Day. The convicted domestic violence perpetrator had walked free from immigration detention just weeks earlier after a decision by AAT deputy president Stephen Boyle.

The reasons given by Mr Boyle relied heavily on the Direction 99 guidance handed down by Mr Giles in January 2023. Those directions included a call for greater tolerance of offending by non-citizens who had spent their “formative years” growing up in Australia, and Mr Boyle wrote that guidance was a key consideration that prompted him to overturn the cancellation of Saki’s visa.

In a statement from Mr Giles’ office, a spokesperson said the minister was seeking “urgent advice” regarding the Saki matter.

“This was a decision of the AAT to overturn the cancellation of the individual’s visa,” the spokesperson said.

“The AAT’s decision is inconsistent with the Ministerial Direction which places a significant emphasis on serious offending and family violence.

“As this matter is before the courts I won’t comment further.”

The minister has refused to answer questions about why he did not exercise his ministerial powers to overrule the AAT and revoke Saki’s visa anyway, with the Coalition seizing on his lack of action as the latest example of the government’s botched handling of criminal detainees.

Direction 99 included guidance specifying that conduct such as family violence was particularly serious when considering whether individuals should have their visas cancelled, so much so that “even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community”.

Saki’s visa was cancelled after he was convicted of a series of violent acts committed against his partner and the mother of his youngest child in the ACT in August 2018. The sentencing magistrate in that matter found Saki had held his partner by the neck and applied force to her neck on a number of occasions, with the offending occurring in front of their infant daughter. The AAT also noted Saki’s “indifference” to the domestic violence charges and said he had engaged in “victim blaming” in both that case and in previous charges against him.

Mr Boyle’s AAT decision noted Saki had also committed an act of family violence towards his previous partner and acknowledged the acts clearly weighed against revoking the cancellation of the visa, but determined only moderate weight should be given to that consideration.

Instead, Mr Boyle placed a greater emphasis on the strength, nature and duration of the man’s ties to Australia and Direction 99’s guidance that weight should be placed on the fact that a non-citizen had resided in Australia during and since their formative years. Saki was 12 when he arrived in Australia.

“The minister accepted … that considerable weight should be given to the fact that the applicant has been ordinarily resident in Australia during and since his formative years and accepted that this primary consideration weighs in the applicant’s favour,” Mr Boyle wrote.

“I agree that that is the case.”

It came as Peter Dutton vowed to scrap the Direction 99 changes and revert to the previous structure if elected. Speaking in Perth, the Opposition Leader said that under the previous system some 6300 people had had their visas cancelled.

“It worked well and it kept our country safe. We deported bikies and we deported rapists and people who have committed sexual offences against young boys and girls. It kicked out people who had committed the most heinous crimes in domestic settings,” Mr Dutton said.

“Now the Prime Minister has changed that, which has meant that this individual has stayed in our country, and this individual allegedly has now gone to commit a murder.”

Mr Dutton also questioned why Mr Giles had not used his ministerial powers to overturn the AAT decision, something which had occurred numerous times under the previous government.

“It’s very obvious to me that it should have been taken over by the minister and the visa should have been cancelled. That person should have been held in immigration detention until they could be deported,” Mr Dutton said.

The death of Saki’s alleged victim, Bosco Minyurano, has left behind brokenhearted family members.

A GoFundMe page set up to help cover the costs of Minyurano’s funeral described him as a cherished individual who was beloved by all who knew him.

“He was a diligent and determined soul, striving to create a beautiful life for himself and his family,” a statement by Niakwer Majak on the fundraising page said.

“His kindness and happiness touched everyone he encountered, and his infectious dancing could brighten up any room. Bosco was always ready to lend a helping hand, deeply valuing his family and friends.”

The AAT’s decision to release Saki came despite the tribunal finding that there was a “trend of increasing seriousness” in Saki’s “clearly frequent” offending leading up to his detention.

Saki, Mr Boyle noted, had committed over 40 offences as an adult and one as a 17-year-old between 2012 and 2018.

A year before Saki was convicted over the domestic violence charges, he had been found guilty of making a reckless threat to kill and common assault over an unprovoked incident in which he approached two men, pulled a knife and told them he was going to kill them.

He had also been convicted of using a motor vehicle to cause impact with another person.

The alleged murder by Saki is the latest in a string of controversies stemming from the federal government’s handling of detainees in criminal detention.

The government was forced to release at short notice some 152 people who had been held in ­indefinite immigration detention last November after the High Court ruled that the practice was unlawful. Several of those detainees have since been rearrested on other charges.

Mr Albanese and Mr Giles have blamed commonwealth prosecutors over their failure to push back against granting those rearrested detainees with bail, while Mr Giles has said a decision not to compel a detainee to wear a tracking device was the responsibility of an unnamed “delegate” in his department.

That detainee Majid Jamshidi Doukoshkan – a declared drug trafficker who had already been charged with multiple offences subsequent to his release – allegedly went on to participate in the brutal bashing and burglary of a pair of grandparents in the Perth suburb of Girrawheen.

Opposition immigration spokesman Dan Tehan criticised Mr Giles for failing to explain why he had not overturned the AAT decision.

“Once again, Andrew Giles fails to front up and address questions directly when it comes to keeping Australians safe,” Mr Tehan told The Australian.

“He still needs to answer the following: why didn’t he use his ministerial powers to cancel the visa once the AAT had made the decision? And given the findings of the AAT, will he now rescind ministerial Direction 99?”