NZYQ debacle: Ex-detainee who raped teenager has ankle bracelet removed

The government lifted electronic monitoring and curfew on an ex-detainee who was jailed for raping a half-asleep teenager at a party.

Immigration Minister Andrew Giles.

The Albanese government last month quietly lifted ankle bracelet monitoring and curfew conditions imposed on an ex-detainee who spent two years in prison for raping a half-asleep teenager at a party, and a further 10 months locked up for “causing harm” to a government official, as more ­details of the legal landmines emerging as a result of the NZYQ indefinite detention decision come to light.

The revelations come as the Coalition requests a briefing from the government on “recent developments” in relation to dangerous non-citizens released into the community, including an update on Labor’s approach to the ASF17 case that is before the High Court.

The Australian on Tuesday revealed the commonwealth had been dispelling cases brought by former detainees challenging strict monitoring and curfew conditions enforced as part of their bridging visas.

One of the cases in which The Australian understands Immigration Minister Andrew Giles agreed to lift monitoring conditions was brought by a 42-year-old Cuban entertainer known as XTVC, who raped a 19-year-old girl at a party without using protection in 2009.

XTVC, who has a number of brothers and sisters and once had a serious alcohol addiction, maintained that the intercourse was consensual, but NSW District Court judge Richard Cogswell said the offence was “serious” due to the fact he did not wear “any form of condom … and ejaculated in her vagina”.

“He had a lot to drink before and at the party. At 7 o’clock in the morning of 7 December 2009 he came into a room at the house where the party was and found a young woman who was asleep,” Judge Cogswell said, in sentencing XTVC in 2011.

“He penetrated her vagina from behind with his unprotected penis and had sex with her until he ejaculated. He did not ask her whether she agreed or not, he simply went ahead and did it.”

The Australian is aware of at least three other cases where Mr Giles has lifted the ankle bracelet and curfew conditions for former detainees as he seeks to defuse legal challenges.

Lawyers for YBFZ, an Eri­trean-born man charged with breaching his curfew and failing to recharge his electronic ankle bracelet, have launched a High Court challenge to the conditions imposed on him after his release from detention in November.

The court in 2011 heard XTVC had been trained as a musician and was “a very accomplished performer”.

At the time of his sentencing, XTVC had separated from his Australian wife, and was subsequently applying for citizenship. He was unable to return to Cuba because he “made a ­documentary containing his views about the conditions of the people in the country and he is therefore regarded as a counter-revolutionary”.

Judge Cogswell took into consideration the damaging effects of the offence on the victim, who said she was “a more scared and ­anxious person and I have a lot of trouble trusting people” as a result of being raped.

He sentenced XTVC to four years imprisonment with a non-parole period of two years and six months.

After being released, XTVC was labelled an “unlawful non-citizen” and was detained in a West Australian immigration centre in 2015.

Four years later, he was charged with causing harm to a commonwealth public official, and sentenced to a further 10 months in prison.

Once released from criminal custody, he was re-detained by immigration in 2020.

XTVC was released from immigration detention late last year as a result of the NZYQ decision, and was issued a bridging visa under which strict conditions were imposed, including electronic monitoring and a curfew daily from 10pm to 6am.

XTVC filed a challenge to the conditions in the High Court in December, with his legal team, led by immigration silk David Hooke SC and barrister Jason Donnelly, arguing the conditions interfere “with the plaintiff’s privacy, ­dignity and bodily integrity throughout the whole of ­everyday”.

“The curfew condition impedes the plaintiff’s liberty in a manner that is relevantly un­disguisable from being in custody for eight hours of every day,” the lawyers argued.

“Breach of over condition or its components renders the plaintiff liable to criminal sanction.

“These factors are true for every individual the subject to these conditions.

“Both conditions impact upon the plaintiff’s ability to work, socialise, and attend to personal matters, and impose considerable disruption upon his daily life, which he likens to penal ­conditions.

“Such conditions cause him significant mental distress and anxiety, ‘sending him mad’.”

The matter was withdrawn from the High Court on February 7 and finalised on Monday, with Dr Donnelly telling The Australian the monitoring conditions were revoked and the government picked up XTVC’s legal tab.

Mr Giles told The Australian the government “does not comment on individual cases nor court matters” but said “the location of every individual required to be released by the High Court is known.”

“After the former Liberal government’s cuts to immigration compliance, we have invested in our agencies and the Community Protection Board, made up of legal and security experts as well as people from across agencies,” the minister said.

“As ABF Commissioner Outram has stated, ‘the ABF stands ready to adapt our tactics and approach to deliver the best outcomes for the community’.”

Mr Giles has also vowed to fight a High Court challenge from an Iranian man known as ASF17, who will attempt to overturn a Federal Court ruling against his freedom after he refused to return to Iran where he fears he will be persecuted on the basis of his sexuality.

The Coalition on Monday requested a briefing from the government relating to non-citizens released into the community, including an update on Labor’s approach to the ASF17 case.

The letter, signed by opposition legal affairs spokeswoman ­Michaelia Cash, immigration spokesman Dan Tehan and Home Affairs spokesman James Paterson, was sent to their ministerial counterparts just days after the government conceded the High Court had drawn new boundaries around the powers of the executive and its limits.

“It is very disturbing to learn that there is the risk further detainees will be released into the Australian community on your government’s watch, and that your public response appears to be to blame the courts,” the Coalition frontbenchers wrote.

Mr Tehan repeated his call for Mr Giles to be sacked, telling ABC radio that the minister “didn’t turn up to three key briefings” on the legal implications of the High Court’s NZYQ decision.

“They’re getting legal advice on a daily basis as to how to manage these issues,” Mr Tehan said.

“You need to be doing your job, sitting down, taking all that legal advice, working through it, and making sure that you’re putting plans in place to be able to deal with these issues.”

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ADDITIONAL REPORTING: JOE KELLY