DV abuser, people smuggler use NZYQ to secure their freedom
A convicted people smuggler and a serious domestic violence offender have used the landmark NZYQ High Court ruling to walk free from immigration detention.
A convicted people-smuggler and a serious domestic violence offender, who attacked his victim with a knife and doused her bedroom with petrol, have been released from immigration detention after they used the NZYQ High Court ruling to argue that their imprisonment was unlawful.
The men, both Iranians who argue they will be persecuted if returned, were released into the community after winning legal challenges against the Albanese government, as more cases of detainees using the finding that indefinite detention is unconstitutional to be set free came to light.
The revelations come as Immigration Minister Andrew Giles’s new Direction 110 comes into operation, replacing his ministerial order that had allowed foreign sex offenders and other criminals to halt their deportation, as questions swirl around the future of Labor’s bill to remove unco-operative non-citizens after it was dropped from the sitting week schedule.
The Australian understands the Iranians have been granted bridging visas and are being monitored along with other members of the NZYQ cohort after the court ordered their release in February.
One of the men, anonymised as David, came to Australia illegally by boat and was stripped of his visa after he contravened a family violence order, which was imposed after he launched an attack on his former partner using a knife, a plank of wood and a pillow.
The attack also constituted false imprisonment, three counts of assault with a weapon, making a threat to kill and unlawful assault.
He later contravened the order when he “entered the locked home of the victim, doused the bedroom with petrol and assaulted her physically and sexually”.
David, a Kurd born in Iran, has spent five years in immigration detention and has refused to co-operate with attempts to remove him by acquiring relevant travel documents, claiming he is stateless and Iran will not accept him.
He also fears he will be jailed for 11 years if deported after he was convicted of “insulting Iranian authorities and acting against the national security of Iran and for his membership of enemy groups”.
He also said he had converted to Christianity which would place him at further risk if returned to Iran.
In the judgment by the Federal Circuit and Family Court of Australia on February 28, judge Amanda Mansini said the court was “bound” to follow the NZYQ decision and concluded David had not been “lawfully detained and is entitled to be released immediately … This form of relief is not final in that it does not entitle David to indefinite freedom to live in the Australian community.
“If the prospect of his removal becomes real in the reasonably foreseeable future, he can be re-detained,” the judgment said.
The second Iranian, referred to as Adam, has also refused to co-operate with attempts to remove him and has argued he cannot be returned to Iran because he will face persecution for being a Christian, as a member of the Mandaean minority.
Adam was convicted of people-smuggling and sentenced in 2015 to seven years’ prison, where another month was added to his time for one count of “assault in company”, before being moved to immigration detention.
The court found Adam, who reached Indonesia in 2001 and registered with the UN before arriving in Australia, was likely owed protection by Australia, despite no formal finding being made in his case, and could not be returned.
Despite Iran’s longstanding stance against accepting its own citizens who have been involuntarily deported, the court found there were likely other factors preventing his deportation and Adam was ordered to be released.
A spokeswoman for Mr Giles said the government was obligated to follow the High Court’s decision. “The government has to comply with the orders of the High Court, which required the immediate release of affected individuals – as any government would have to,” she said.
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