All excuses for detainee debacle revoked, Andrew Giles

The Immigration Minister was warned months after Labor was elected that up to 2800 cases could be impacted by its decision to soften section 501 visa cancellations.

Anthony Albanese in question time on Wednesday amid the chaos of Immigration Minister Andrew Giles.

Immigration Minister Andrew Giles was warned months after the Albanese government was elected that up to 2800 cases could be ­impacted by its decision to soften section 501 visa cancellations, undermining his claim that judges had misinterpreted Direction 99 when allowing foreign-born rapists, pedophiles and other criminals to stay in Australia.

The revelations came as ­Anthony Albanese was forced to order a rewrite of the government’s own ministerial direction that had led to a spate of non-­citizen criminals facing deportation being allowed to stay in the country and commit further crimes.

“The only effective way of ­ensuring the (Administrative ­Appeals Tribunal) members are making better decisions is to issue a new revised direction, which the minister will be doing,” the Prime Minister told question time.

His comments came after The Australian this week revealed the cases of dozens of visa cancellations that had been overturned because of Direction 99.

“The new directive will ensure that the protection of the community outweighs any other consideration,” Mr Albanese said.

Adding to pressure for Mr Giles to resign as minister, Senate estimates revealed at least two murderers and 26 sex offenders released from immigration detention as part of the NZYQ High Court ruling were not wearing electronic ankle monitors.

The Australian understands a submission on Direction 99 from within the Department of Home Affairs was given directly to Mr Giles in August 2022 — four weeks after Mr Albanese declared a change to the rules for New Zealand citizens facing deportation.

It warned Mr Giles that about 2800 cases would need to be renotified of the changes to give “primary consideration” to long-term residence for non-citizens who had failed the character test and were seeking appeal, now known as Ministerial Direction 99. It also told Mr Giles that the direction would result in cancellations being overturned, suggesting the minister had warning of the potential consequences of the decision.

“To implement Ministerial Direction 99, the current caseload of 5000 cases will need to be reviewed to identify affected cases,” the submission said.

“The department anticipates around 2800 cases will need to be renotified. There will be a significant reduction in the number of cancellation, refusal or revocation decisions finalised in the first few months of the commencement of MD 99.”

When asked to comment on the departmental submission, a government spokesman said: “It’s clear the current direction has not been used as government intended. That’s why we’re imposing a new direction to make clear that the protection of the community outweighs any other considerations.”

Opposition immigration spokesman Dan Tehan said Mr Giles should resign.

“What this ministerial brief confirms beyond doubt is that the minister was warned by his department that Ministerial Direction 99 would impact around 2800 cases,” Mr Tehan said. “It clearly shows the minister was negligent beyond doubt in putting in place any monitoring of his decision, even though he was warned it could lead to different outcomes in 2800 cases. It shows why the Prime Minister has to ask him to resign.”

Mr Giles had no knowledge the visa cancellations of rapists, pedophiles and drug traffickers had been overturned until they were revealed in The Australian. He said on Wednesday he cancelled six visas of criminals who the AAT allowed to stay in Australia because of Direction 99 and was reviewing dozens of other cases.

Mr Giles’s backdown on Direction 99 came as it emerged that four more convicted sex offenders – including a child sex offender – and a prolific Sydney cocaine ­dealer were all spared deportation off the back of the direction. In one case, a Lebanese citizen named Mahmoud Younes was found to have strong ties to Australia despite the fact he had spent half of his six years in Australia behind bars. He had been convicted over an incident in which he dragged a woman off the street and into his car before molesting her.

Department of Home Affairs secretary Stephanie Foster blamed a lack of resources for failing to tell Mr Giles the visas of violent criminals were overturned, despite the decisions being publicly available.

When it was last week revealed the AAT released Sudan-born Emmanuel Saki a month before he was charged with murder, Mr Giles said the decision was “inconsistent with the Ministerial Direction which places a significant emphasis on serious offending and family violence”. In question time on Wednesday, Mr Giles did not apologise for the crisis and instead attacked the AAT for using Direction 99 to overturn visa cancellations.

“A number of recent AAT decisions have not shown common sense,” Mr Giles said.

He said the revised ­Direction 99 would give more clarity to the replacement of the AAT, the Administrative Review Tribunal. “The new direction will ensure that all members of the (Administrative Review Tribunal) will adopt a commonsense approach to visa decisions, consistent with the intent of Ministerial Direction 99,” he said. “First and foremost, this means ensuring that the protection of the community outweighs other considerations. (The) revised direction will also strengthen the principles of community safety in the making of decisions.”

Mr Giles has also blamed the Department of Home Affairs for failing to keep him and his ministerial office informed of the AAT’s decisions.

He attempted to turn the heat back towards Peter Dutton on his own track record on border protection, pointing to reports 102 convicted sex offenders, including 64 pedophiles, had been released into the community during the six years he oversaw the home affairs and migration portfolio.

The Home Affairs submission given to Mr Giles about Direction 99, dated August 8, 2022, was completed from within the visa cancellation unit of the department. It said the department would give further advice on community concerns of the “unintended consequences” of the family-related violence consideration of other ministerial directions. It is unclear what if any advice was given prior to Ministerial ­Direction 99 coming into force on March 3, 2023.

The submission revealed then Department of Home Affairs secretary Mike Pezzullo had not been consulted on the proposal. The Australian Government Solicitor was consulted as was the international division of the ­department, based on what it called sensitivities to “scrutiny from the international community, advocacy groups and human rights bodies”.

“Non-citizens who are long term residents in Australia who meet the thresholds for mandatory cancellation of their (visas) will continue to have their visas cancelled,” the submission said. “As unlawful non-citizens they will be liable for detention while awaiting a revocation ­decision under the new Ministerial ­Direction.”

The submission also alludes to a spike in the number of merit ­reviews before the AAT at the time of and following the election of the Albanese government in May 2022. “At a bilateral meeting between the department and the AAT on July 5, 2022, the AAT ­advised that it had received the highest number of annual applications for merits review during the 2021/2022 program year,” the submission went on to say.

One-third of those applications for review was lodged during May and June 2022, it said. The election was held on May 21, 2022.

“The introduction of a new Ministerial Direction would have a significant impact on the AAT’s capacity to finalise cases, noting that as a result of the recent significant surge, the AAT has already diverted more of its resources to decide character matters,” it said.

The submission to Mr Giles made several recommendations, which were signed off by Mr Giles on August 17, a week after he received the submission. Among them, it confirmed the intention to make long-term residence a “primary consideration in character related visa decision-making”.

It then recommended that the minister approve the department “testing” the new Ministerial ­Direction through a “desktop ­exercise”.