Home Affairs warned Andrew Giles over controversial Direction 99

Embattled Immigration Minister Andrew Giles was warned by bureaucrats in his own department that a controversial ministerial direction he issued risked overturning a quarter of visa cancellations for non-citizen criminals.

In a late night sitting of Senate estimates on Tuesday evening, it was revealed officials at the Department of Home Affairs modelled the implications of Mr Giles Direction 99 changes, finding that two of the eight individual cases analysed were likely to be overturned.

The direction, which was issued by Mr Giles in early 2023, requires the immigration minister or a body, including the Administrative Appeals Tribunal, to consider an individual’s community ties when considering to revoke the cancellation of a convicted criminal’s visa.

Under a barrage of Coalition queries during question time on Tuesday, Mr Giles refused to apologise, sought to put further distance between himself and his department, claiming he had not been informed about the AAT’s decisions.

Speaking before Senate estimates on Tuesday evening, Home Affairs secretary Stephanie Foster said the department had breached protocol by not alerting Mr Giles to a number of the AAT’s decision to overturn the cancellations.

“The department did fail him, we did not meet every protocol,” Ms Foster said.

Ms Foster said she knew of five cases where the department had not alerted Mr Giles, before being corrected by another official who said the number of cases was closer to 30.

Under questioning from the Coalition’s home affairs spokesman James Paterson, who labelled the revelation as “extraordinary”, Ms Foster apologised for the incidents.

“I regret very much that this has happened,” Ms Foster said, adding that she was ultimately responsible, and Home Affairs had since devoted further resources to addressing the issue.

British-born rapist and masseur Charles William Davidson had his visa cancellation revoked in February — even as he was convicted of 48 counts of sexual assault, eight counts of rape and three counts of indecent treatment of children under 16 — according to The Australian.

Ms Foster said the case was not among those that had been investigated by the department.

“We are working through all of the cases as quickly as we can,” Ms Foster admitted, before another departmental official revealed there was not an upper limit to the number of cases that could have been overturned via the ministerial direction.

Of those whose visa cancellations were overturned are Sudanese national Emmanuel Saki, who was charged with stabbing a 22-year-old in Queensland just weeks after the AAT revoked the cancellation of his visa, and Lebanese-born Abdul Wahab Trad, who was found to have strong ties to Australia despite raping a 13-year-old girl in 2020.

The Coalition put five examples to Mr Giles during question time, demanding whether he would apologise for his “catastrophic mistake, and reverse direction 99?”

During the questioning Mr Giles was at pains to argue that the decisions to overturn the visa were made by an “independent tribunal” in the AAT.

“I remind the house that the direction places a serious emphasis on family violence. These need to be considered in all matters by the tribunal,” he said.

“I have cancelled the individual’s visa.”

He said he had tasked his department with looking at the AAT cases “as a priority”.

The Coalition also hurled questions over an Afghan national, known as ZJFQ, who had his visa cancelled after he raped a 16-year-old girl and a disabled 14-year-old child, but was allowed to stay in Australia.

“I say again that Direction 99 did not and does not decrease the importance placed on the considerations such as the expectations of the Australian community and the protection of the community from crime,” Mr Giles said.