More than half of the 92 people in immigration detention the Australian government warned it would have to release if it lost a landmark high court decision had their visas cancelled by ministers due to serious concerns about criminality.
A document tendered in the high court, seen by Guardian Australia, reveals the majority (78) are owed protection, including citizens of war-torn or authoritarian countries such as Afghanistan, Iran and Sudan. Half a dozen have been in detention for over a decade.
The prospective release of these 92 people has become the subject of a fierce political debate about the Albanese government’s response to a landmark high court ruling that indefinite detention is unlawful where it is not possible to deport people, which is the purpose of immigration detention.
The Coalition has accused Labor of not doing enough to protect the Australian community, which the immigration minister, Andrew Giles, rejects, citing the fact the plaintiff, NZYQ, has been released with strict conditions.
On Friday Guardian Australia revealed the Australian government is preparing to immediately release some of the 92 people, despite earlier claiming on Thursday it “cannot” act on the high court decision until the full reasons for the decision are given.
The NZYQ dashboard document was prepared by the home affairs department to demonstrate the cohort of 92 who would be affected if the commonwealth lost the case.
They are likely to meet the new test for release if the person has “no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future”.
Of the 92, 78 are owed protection obligations while the rest are stateless or have “intractable” cases, such as an inability to identify the detainee or lack of cooperation from them or their home country.
The document shows that 21 of their cases were referred to the home affairs minister for character concerns related to “national security, cybercrime, serious and high profile organised/gang related, high ranking [outlaw motorcycle gangs] members”.
A further 27 were referred to Giles for concerns related to very serious “violent offences, crimes against children, family/domestic violence” or “violent, sexual or exploitative offences against women”.
Some 35 were character decisions made by delegates of the minister. The document warns that the former three categories do “not necessarily reflect the severity of the character concerns”.
Just nine were “general cancellations” for reasons other than character concerns, such as incorrect information in the visa application, change in circumstances, or the “the health, safety or good order” of Australia – the provision infamously used by former minister Alex Hawke against Novak Djokovic.
Most of the people have been in detention for five years or more, including 10 in their eighth year of detention, two in their ninth year, four in their 11th, and one each in the 12th and 13th year.
The most common countries of citizenship were: Afghanistan (18), Iran (17), Sudan (10), Iraq (7), South Sudan (4), Eritrea (3), Sri Lanka (3), and two each from China, Cambodia, Pakistan, Vietnam and Zimbabwe.
The document contains inconsistencies, and advocates warn it could be misleading or incomplete in some respects. At one point it states that nine people are stateless, but elsewhere in a graph suggests the number is five.
At the hearing on Wednesday, justices Michelle Gordon and Jacqueline Gleeson also noted that, despite the claim that the 92 people described by the document were in detention, it appeared to show that 21 were on residence determinations, which allows them to live at a specified residence in the community while technically still in detention.
These people are described as in NSW (10), Victoria (7), Western Australia (3) and South Australia (1).
The solicitor general, Stephen Donaghue, conceded on Wednesday he did not “know exactly where they are” and the estimates were not “comprehensive”.
“They show you, at least, some information – including information into the most directly [affected] cohort as that has been identified by the department,” he said.
Most detainees were held at Yongah Hill (27), Villawood (25) or Melbourne (13) immigration detention centres.
The “last known home state of detainees impacted by this decision” were: NSW (40), Victoria (24), Queensland (11), Western Australia (9), South Australia (6) and the ACT (2).
“This information will be used in stakeholder engagement, as well as to assist the department to develop an operational plan for release arrangements and transitional [status resolution] support services,” it said.
Giles has said “we are considering the implications of the judgment carefully and will continue to work with authorities to ensure community safety is upheld”.
“The plaintiff has been released – as ordered by the high court. Other impacted individuals will be released and any visas granted to those individuals will be subject to appropriate conditions.”
Labor’s Murray Watt told question time on Thursday that “where serious offenders are released from immigration detention, state and territory authorities are notified”.
The director of Human Rights for All, Alison Battisson, said the immigration powers do not require “finalisation of a criminal process to cancel a visa”, and it is “sufficient that someone is charged or the department thinks they are otherwise not of good character”.
As a result, even people whose charges are dropped or who are subsequently found not guilty can remain in immigration detention due to the department’s adverse assessment, which she said was “abhorrent to the separation of powers”.
On Thursday the shadow home affairs minister, James Paterson, told reporters in Canberra that the government’s response to the NZYQ case has gone from “bad to worse”.
He claimed Labor it is preparing to release “all 92 people” identified by the solicitor general as affected by the case.
Paterson said the government should respect the high court decision, but also called for “measures to to manage these people in the community, like an extended supervision order, or a control order” or in high-risk cases a continuing detention order.
The standfirst of this story was updated on 10 November 2023 to clarify the number held in detention for more than a decade was six not 46.