Detainee spared after Andrew Giles’ visa cancellation delay

A sex offender has been spared deportation in a ruling that undermines Labor’s bid to contain the fallout of an immigration blunder.

Former immigration minister Andrew Giles. Picture: NewsWire / Martin Ollman

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A sex offender has been spared deportation in a ruling that undermines Labor’s bid to contain the fallout of an immigration debacle, after the Federal Court overruled a decision by ousted minister Andrew Giles because of his “unreasonable” delay.

In a legal ruling that could set a precedent demanding immigration ministers make decisions in a timely manner, the court has struck down Mr Giles’s decision to cancel the visa of a Somali man convicted of performing an indecent act in front of a child.

Federal Court judge Christopher Horan found the cancellation decision was unlawful because too much time had elapsed between the appeals tribunal deciding the man, known as XMBQ, could remain in Australia and Mr Giles terminating his visa.

The Australian understands the government is considering the judgment, which could place limits on the time Home Affairs and Immigration Minister Tony Burke has to personally intervene to cancel visas, if the decision is not appealed.

Amid intense pressure to address a political crisis stemming from a faulty ministerial direction, Mr Giles cancelled dozens of visas of foreign criminals who had been allowed to remain in Australia under the guideline.

The minister’s rush to cancel more than 30 visas came after The Australian revealed in May 2024 that ­offenders, including rapists and armed robbers, had used Mr Giles’s flawed Direction 99 to avoid deportation.

The Somali man, who has a long criminal history including convictions for kicking a police officer in the face and performing a sex act in front of a 29-year-old woman and a 13-year-old girl on public transport, challenged the legality of Mr Giles’s intervention in his case.

Mr Giles personally intervened to cancel XMBQ’s visa on June 8, 2024, after the appeals body, then called the Administrative Appeals Tribunal, decided the man’s visa should be returned to him in April 2021.

Home Affairs and Immigration Minister Tony Burke in Canberra. Picture: NCA NewsWire/Gary Ramage

Justice Horan said he was “comfortably satisfied” the three-year, two-month delay between the decisions went beyond the reasonable time limit a minister had to cancel a visa.

“If the minister is to exercise the power to set aside the original decision and cancel the visa, the minister must do so within a reasonable time,” the judgment said.

“Otherwise, the connection with the original decision as the object of the power will be lost, and it can no longer be said that the minister is addressing or responding to the state of affairs produced by or resulting from the original decision.”

Immigration law specialist Simon Jeans said the judgment was a “warning to decision-makers who try to cut corners”, with the case marking a possible first.

“A significant period of time passing between a tribunal decision and the minister overruling it has not been tested in the courts, to my knowledge,” Mr Jeans said.

“It was open for Minister Giles to do this, but there was a risk.”

Mr Jeans said the safer option was for the Immigration Department to cancel XMBQ’s visa, prompting him to appeal to the tribunal before the minister intervenes again.

“But we know Minister Giles was under pressure to save his job and this led to a decision in haste,” he said.

Barrister Greg Barns, spokesman for the Australian Lawyers Alliance, said the case was a “reminder of the need for timely decision-making in the migration area”, with delayed decisions taking a significant toll on applicants.

“While the migration system has a constantly heavy caseload, there is no excuse for keeping individuals waiting lengthy periods, such as in this case,” he said.

Lawyers for XMBQ also argued that Mr Giles’s decision had been made in prejudice by the applicant being charged with two counts of rape, though he was not convicted.

Justice Horan rejected this argument on the grounds that there was nothing to indicate the minister’s decision had been impacted by the charges.

He also dismissed the argument that the cancellation was illegitimate because Mr Giles had acted as if he was only making a visa decision, rather than overturning an AAT decision.

XMBQ was born in Somalia in the 1960s, before fleeing to Lebanon in 1993 and arriving in Australia in 2004 as a refugee.

His offending resulted in him being placed on the sex offenders register for 15 years, after he pleaded guilty to the public exposure charges in June 2017.

The man’s visa had previously been cancelled by a delegate of the immigration minister in December 2017, with this decision being supported by the AAT but overturned later in the Federal Court.