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Indefinite detention: Coalition had already released 5 of 93 impacted by high court decision, document reveals

Five of the 93 people affected by the high court’s decision on indefinite detention had already been released into community detention by the Coalition.

According to a home affairs document, the person who spent the second longest time in detention – 12 years – was living in the Australian community under a “residence determination” granted by the Morrison government in February 2022.

The document, published by the high court on Tuesday, also confirms that not all the 93 people affected by the high court’s decision had convictions in Australia.

Earlier in November, Guardian Australia revealed that despite the department warning that 92 people in addition to the plaintiff would have to be released if the high court ruled that indefinite detention was unlawful, documents tendered in court appear to show that 21 were already on residence determinations.

These allow people to live at a specified residence in the community, subject to conditions including regular reporting and being prevented from working.

According to the Australian Human Rights Commission, they “are generally not under physical supervision, and can move about in the community”.

The NZYQ caseload snapshot is a “high level summary” created by the home affairs department to illustrate the circumstances of some of the people it is not possible to deport, who were eventually released as a result of the high court ruling against the immigration minister.

The release of the document on Tuesday follows Guardian Australia’s exclusive report of the NZYQ dashboard revealing that the majority of the cohort had their visas cancelled on character grounds.

The snapshot reveals that the person who had spent the second longest time in detention was there for 12 years, an “unauthorised maritime arrival” who came to Australia on 11 August 2011, who was “charged with indecent assault and was fined $2,000 on appeal”.

In February 2022 – while the Coalition was in office – an unnamed minister intervened and granted them a “residence determination”.

Another person jailed for eight years in Saudi Arabia for “murdering a man before being deported” who has “no criminal history in Australia”, had his safe-haven enterprise visa refused in November 2016. He has been detained for 11 years and was on a “residence determination” at the time of the judgment.

The dashboard reveals 21 people are on residence determinations, and of those 16 were granted by the current immigration minister. Guardian Australia understands the balance – five – were granted by the Coalition.

The snapshot noted that the immigration minister, Andrew Giles, is considering ministerial intervention to release people from long-term detention, although this is focused on those who meet criteria, including that they are “assessed as a low risk of harm to the Australian community”.

Of the 108 cases decided by the time the document was created, 36 applications had been refused, 33 people had been released into community detention, and 39 were granted bridging visas.

The revelation that five of the people affected by the court decision were released into community detention by the Coalition comes after weeks of inflammatory rhetoric by the opposition describing the cohort of people released as “hardened criminals”.

The document reveals that the longest serving detainee, who had been in detention for 13 years, has no convictions in Australia but “has been of interest” to spy agency Asio.

However, none of the people released have adverse security assessments. Two have “qualified security assessments”. One had a previous adverse and qualified assessment that “now has a non-prejudicial outcome”.

The document provides a “summary of some of those with more serious offences and their length of time in immigration detention”.

These include:

  • A stateless Rohingya unauthorised maritime arrival “sentenced to 5 years for aggravated sexual assault of a victim under the age of 16”, who had been in immigration detention for 5 years;

  • A person extradited to Australia on a criminal justice stay visa “to face people smuggling charges”. He was sentenced to 11 years in 2015, and had been in immigration detention for two years and nine months;

  • A person convicted in 1999 of “the murder of his wife sentenced to 22 years”, with a minimum of 18. His protection visa was cancelled, and he was in detention for four years;

  • A convicted sex offender currently on the child protection register after assaulting a 12-year-old girl in 2012;

  • A person convicted in 2017 of “supply [of a] commercial quantity of a prohibited drug” to 7 years and 4 months imprisonment who has been in immigration for 3 years;

  • A person convicted in 2012 of people smuggling, who received a three-year sentence and has been in detention for 11 years;

  • A person convicted in 2014 of rape, false imprisonment and indecent assault and sentenced to four years and six months;

  • A person convicted in 2020 for “trafficking a controlled drug (Meth)”. He was sentenced to three years, four months in prison, his protection visa was cancelled and he has been in detention for two years;

  • A person sentenced in 2015 to 10 years imprisonment for supply of prohibited drugs;

  • A person who had served “multiple prison sentences” including one in 2009 for “common assault … where he was found guilty of punching his eight month old daughter”, who has been in detention for nine years;

  • A person convicted of murder and “sexual intercourse with a person between 14-16 years”.

Several examples were provided of people who had “been in immigration detention for longer than their criminal convictions”.

On Sunday the home affairs minister, Clare O’Neil, said “if it were up to me all of these people would still be in detention”.

“That is why they were continuing to be detained when the high court made its call,” she told Sky News. “Some of these people have done deplorable, disgusting things, and I do not want these people in our country.”

Labor has rejected Coalition calls to redetain the cohort of people released, but has not ruled out further legislative options such as a continuing detention regime.

This would allow courts to order high risk unlawful non-citizens not be released after serving their sentence, akin to powers for terrorism offences.

Guardian Australia contacted current and past Coalition immigration portfolio holders for comment.

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