A stateless refugee who has been charged with breach of curfew and failing to recharge his ankle monitor has launched an urgent high court challenge against visa conditions imposed on those released from detention.
Lawyers for YBFZ, a pseudonym for the plaintiff born in Eritrea, have asked the high court to expedite the case by requiring the Albanese government to file a defence in weeks for a full hearing as early as March or April.
Five previous attempts to overturn the ankle bracelet and curfew conditions imposed on those released as a result of the court’s NZYQ decision have been discontinued after the immigration minister, Andrew Giles, lifted the conditions from early plaintiffs.
According to documents filed in the high court, YBFZ and his family fled Eritrea in 1997 due to religious persecution and came to Australia in 2002, when he was granted a refugee visa at age 14.
YBFZ is diagnosed with schizophrenia, and “has a record of criminal offending commencing in 2004”, including a conviction in September 2017 for “offences of burglary and recklessly [causing] injury”.
After being sentenced to an aggregate sentence of 18 months in prison, YBFZ’s visa was cancelled in December 2017.
YBFZ went into immigration detention in March 2018. Despite being assessed as a refugee and owed protection, he was refused a further visa in July 2020 because he had been convicted of a “serious crime” and was judged by a delegate of the then home affairs minister to be “a danger to the community”.
YBFZ was released from immigration detention on 23 November 2023 due to the high court’s NZYQ decision ruling that indefinite detention is unlawful where it is not possible to deport the person.
YBFZ was given a series of bridging visas, the first and third of which contained the 10pm to 6am curfew condition and the requirement to wear an ankle bracelet for electronic monitoring.
On 8 December YBFZ was arrested and charged with failing to comply with the curfew.
On 30 January, YBFZ was arrested and charged with offences of failing to comply with the curfew on 27 and 28 January and failing to charge his ankle bracelet on 29 January.
The offences are punishable by a mandatory minimum sentence of one year in prison, after Labor agreed to toughen sentences at the request of the Coalition.
YBFZ was also charged with breaching conditions of bail and committing an indictable offence on bail, for breach of the curfew.
YBFZ is in custody at Melbourne assessment prison, on remand to appear before Melbourne magistrates court on 20 March.
On 22 February Refugee Legal launched YBFZ’s challenge, submitting the conditions were punitive and breach the separation of powers.
On Monday YBFZ’s lawyers applied seeking directions for the commonwealth to file its defence seven days after a procedural hearing.
They said the case was of “significant public importance” because more than 100 of the 149 people released so far have the ankle bracelet and curfew conditions and face the “continued threat of prosecution and mandatory imprisonment” for breach of either.
YBFZ’s lawyers submitted it was “feasible” a special case agreeing the facts of the case could be finalised in March, with a hearing “as early thereafter as the court can accommodate”.
The Albanese government has previously insisted that curfews and ankle bracelets will withstand challenge.
A spokesperson for Giles said it would be “highly irresponsible” to comment on legal matters or individual cases, but noted the government received advice from the community protection board on management of individuals released due to the high court decision on indefinite detention.
