New immigration directive to AAT is on the way but Minister Andrew Giles can’t give a date

Immigration Minister Andrew Giles has conceded the emergency laws passed last year do not allow Border Force to electronically monitor every person released from detention after a High Court ruling, as he fends off attacks over a backdown on a direction being cited in cases overturning visa cancellations.

The embattled minister is dealing with twin crises in his portfolio but insists he is just focused on doing his job, not the political arguments swirling.

The Government has become embroiled in a fresh immigration scandal as details emerged of dozens of cases where the AAT had overturned visa cancellations for people convicted of horrendous crimes.

Home Affairs officials failed to tell Mr Giles the department had been losing these cases.

They were linked to the “Direction 99” Mr Giles signed in January last year, which instructed decision-makers to “generally afford a higher level of tolerance” to criminal conduct by foreigners who had spent most of their lives in Australia.

Prime Minister Anthony Albanese announced on Wednesday Mr Giles would be issuing a replacement direction.

The minister has now re-cancelled the visas of eight people and is examining at least another 22 cases.

He said on Thursday he had given “really clear directions to the (Home Affairs) secretary and the senior legal counsel about exactly what I want to see” in the new direction.

“I am focused on outcomes, not political arguments,” he said.

“And certainly that’s how I’ve been conducting myself over the last few days — relentlessly focusing day and night on ensuring the visas which need to be cancelled are cancelled, putting in place mechanisms that make a difference right now and putting in place measures that will deal with some of the structural issues that have come to light.”

A January 2023 department briefing to the minister about direction 99 said it could not come into effect until six weeks after Mr Giles signed it “to ensure procedural fairness” for cases before the AAT.

The same briefing note, and an earlier one from August, anticipated about 2800 of the 5000 cases before the tribunal would be potentially affected by the change.

The furore is the latest chapter in the ongoing immigration detention saga, which erupted after a landmark High Court ruling promoted the release of 153 detainees into the community.

Home Affairs officials on Wednesday confirmed that at least two convicted murderers and 26 people previously charged with sex offences were not being electronically monitored as part of their visa conditions.

The conditions are based on advice from the Commonwealth’s Community Protection Board which is made up of public servants and independent experts.

The board was criticised – including by Prime Minister Anthony Albanese – after revelations it advised GPS tracking was not required for Majid Jamshidi Doukoshkan before his alleged involvement in the bashing of Perth grandmother Ninette Simons.

Appearing at Senate estimates, Home Affairs officials revealed it was implementing a “risked-based” approach to managing the former detainees.

That included using new tools to assess the risk an individual poses to the community and how that might change over time.

Mr Giles said everyone in the cohort was being monitored through a range of means, including drone surveillance, spot checks and home visits by officials.

But he said the law did not allow the Government to simply put electronic monitors on every person.

“The law requires a consideration of each person’s circumstances. That’s what the law requires,” he said.

“That’s why we put in place the Community Protection Board to provide advice to the delegates.”

The Coalition asked the board’s independent members to take the unusual step of fronting up to Senate estimates — but all were unavailable.

Shadow Home Affairs Minister James Paterson said it was considering pushing for a new hearing so members could “front up and explain their role” in the saga.

The public servants on the board, including chair Sandra Jeffrey, were present at Wednesday’s estimates.

The four independent members have been paid a combined $201,000 in board fees as of April 30.

More than $34 million overall has been spent on managing the ex-detainees.