Opinion; Subjects: AUSTRALIA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.18-10070(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-first session, 17–26 April 2018
Opinion No. 20/2018 concerning William Yekrop (Australia)*
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 33/30.
2.
In accordance with its methods of work (A/HRC/36/38), on 22 December 2017 the
Working Group transmitted to the Government of Australia a communication concerning
William Yekrop. The Government replied to the communication on 21 February 2018. The
State is a party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
* In accordance with paragraph 5 of the Working Group’s methods of work, Leigh Toomey did not
participate in the discussion of the present case.
United Nations
A/HRC/WGAD/2018/20
General Assembly
Distr.: General
20 June 2018
Original: English
A/HRC/WGAD/2018/20
2
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
Submissions
Communication from the source
4.
William Yekrop, born in 1984, is a Dinka man from South Sudan (as it is now
known). He usually resides at the Christmas Island Immigration Detention Centre, Australia.
Background
5.
The source reports that Mr. Yekrop’s early life in the Sudan and in an Egyptian
refugee camp was marked by hardship, violence and tragedy. He grew up in the Sudan
during the second Sudanese civil war between the Government of the Sudan and the Sudan
People’s Liberation Army, which was reportedly one of the longest and bloodiest civil wars
ever recorded. Approximately 2 million people died during that war and approximately 4
million people were displaced. In addition, it was reportedly marked by gross human rights
violations, including the use of child soldiers, amputation of limbs and sexual slavery.
6.
The source indicates that Mr. Yekrop’s father served with the Sudan People’s
Liberation Army as a soldier. Mr. Yekrop was approximately 5 years old when his father
was killed. Before and after his father’s death, he experienced extreme violence, including
being trained as a child soldier and witnessing many deaths. According to the source, Mr.
Yekrop’s family was forced to flee the Sudan when his older brother turned 18 years old
and was in danger of being conscripted by the Sudanese military, which fought against the
Sudan People’s Liberation Army. If Mr. Yekrop’s brother had been conscripted, he would
have been forced to fight against his own people and family, and his dead father’s fellow
soldiers. As a result, Mr. Yekrop and his family fled from the Sudan to an Egyptian refugee
camp.
7.
According to the source, Mr. Yekrop remembers feeling scared and in danger for the
three years his family lived in the refugee camp in Egypt. As there was limited
humanitarian assistance available at this camp, both Mr. Yekrop and his brother worked to
support the family.
8.
The source reports that on 22 August 2003, Mr. Yekrop, his mother and his siblings
were granted humanitarian visas. On 10 October 2003, Mr. Yekrop and his family arrived
in Australia, when he was approximately 16 years old. In granting Mr. Yekrop a
humanitarian visa, the Government of Australia recognized his refugee status and the fact
that any return to South Sudan would constitute refoulement.
9.
The source reports that when Mr. Yekrop and his family arrived in Australia, he was
excited about his new life and had plans for his future. He wanted to learn English, get
educated and work. He reportedly commenced intensive English classes and completed
year 12. On arrival in Australia, it was the first time in Mr. Yekrop’s life that he had felt
safe. He felt that he could relax for the first time and would no longer have to be afraid and
cautious all the time.
10.
However, although Mr. Yekrop was finally physically safe in Australia, his
underlying psychological issues were not addressed. On arrival in Australia, he received no
counselling or other support to deal with his traumatic past.
11.
Within six months of arriving in Australia, Mr. Yekrop reportedly began self-
medicating with drugs and alcohol,1 and on 25 April 2004, he was convicted of low-level
property damage. Thereafter, he was convicted of numerous offences relating to property
damage, drink-driving, dangerous driving, violence and miscellaneous other offences. The
1 The source refers to several reports that illustrate the problems experienced by refugees from South
Sudan in settling into their new lives in a safe environment. These problems include alcohol and other
substance abuse and mental health issues. These factors reportedly apply to Mr. Yekrop.
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source notes that Mr. Yekrop was convicted of a number of offences while he was still a
minor. He has reportedly served prison sentences as a result of these convictions.
12.
According to the source, on 9 August 2011, Mr. Yekrop received notice of the
intention of the Department of Immigration and Border Protection to consider cancellation
of his global special humanitarian (subclass 202) visa. The Department cancelled Mr.
Yekrop’s visa on 24 May 2013, owing to concerns about his character, but giving him the
right to apply for revocation of cancellation. The source indicates that under section 501 of
the Australian Migration Act 1958, the Minister of Immigration and Border Protection may
cancel a person’s visa if the Minister believes that the person does not meet the character
requirements as set out in that section. Due to Mr. Yekrop’s criminal history, the Minister
determined that he did not meet such character requirements.
13.
The source reports that on 22 January 2014, following the cancellation of his
humanitarian visa, Mr. Yekrop applied for a protection (class XA) visa.
Arrest and detention
14.
According to the source, on 1 May 2014, Mr. Yekrop was detained by officials from
the Department of Immigration and Border Protection, following the completion of his last
prison sentence upon his release from prison. He was initially administratively detained at
Villawood Immigration Detention Centre and he has since been moved to Christmas Island
Immigration Detention Centre, where he remains to date.
15.
On 31 May 2014, Mr. Yekrop’s protection visa application of 22 January 2014 was
refused by the Department of Immigration and Border Protection. He appealed the refusal
before the Refugee Review Tribunal. On 30 September 2014, the Tribunal remitted the
refusal to the Department, with the recommendation that Mr. Yekrop met the definition of a
refugee as a member of a particular social group (returnees and people with mental health
disorders). On 23 October 2014, the cancellation of Mr. Yekrop’s humanitarian visa was
confirmed.
16.
On 3 February 2015, the Department of Immigration and Border Protection sent
notice of the intention to consider refusal of a protection visa. On 5 August 2016, the
Minister again refused to grant Mr. Yekrop a protection (class XA) visa, due to character
concerns. On 15 August 2016, Mr. Yekrop appealed that second rejection of his protection
visa application to the Administrative Appeals Tribunal, and on 31 October 2016, the
Tribunal upheld the Minister’s decision not to grant Mr. Yekrop a protection visa. On 17
August 2016, the Full Federal Court of Australia upheld the cancellation of Mr. Yekrop’s
humanitarian visa.
17.
The source indicates that Mr. Yekrop is being detained on the basis of the Australian
Migration Act 1958. The Act specifically provides in sections 189 (1) and 196 (1) and (3)
that unlawful non-citizens must be detained and kept in detention until they are: (a)
removed or deported from Australia; or (b) granted a visa. In addition, section 196 (3)
specifically provides that “even a court” cannot release an unlawful non-citizen from
detention, unless the person has been granted a visa.
18.
According to the source, Australian law thus provides that a non-citizen can be
released from administrative detention only if they are removed from Australia or granted a
visa. However, the source notes that Mr. Yekrop is not eligible to apply for any other type
of visa.
19.
The source also notes that given that Mr. Yekrop has previously been recognized as
a refugee by the Department of Immigration and Border Protection, and given the current
emergency situation in South Sudan, he cannot be removed from Australia without it
constituting refoulement. Furthermore, as noted above, both the Department and the
Minister have refused to grant Mr. Yekrop a visa.
20.
The source further notes that it is unclear whether South Sudan would accept Mr.
Yekrop as a citizen. He left the Sudan before South Sudan was an independent country.
South Sudan would reportedly first have to grant Mr. Yekrop citizenship before he could be
returned to the country. Given the current humanitarian crisis in South Sudan, it is unlikely
that South Sudan would process such a citizenship request, particularly if the request would
A/HRC/WGAD/2018/20
4
result in the return of a person to South Sudan and thus place further pressure on the already
strained resources of that country.
21.
In addition, the source notes that it is unlikely, given that Mr. Yekrop is a Dinka
man and the son of a Sudan People’s Liberation Army soldier that the Sudan would accept
him back. According to the source, it is thus extremely unlikely that Mr. Yekrop could be
returned to the Sudan or South Sudan.
Analysis of violations
22.
The source asserts that Mr. Yekrop’s detention constitutes an arbitrary deprivation
of his liberty under categories II, III, IV and V of the categories applicable to the
consideration of cases by the Working Group.
Category II
23.
The source submits that Mr. Yekrop has been deprived of liberty as a result of the
exercise of his rights guaranteed under article 14 of the Universal Declaration of Human
Rights, whereby everyone has the right to seek and to enjoy in other countries asylum from
persecution. Mr. Yekrop came to Australia as a refugee in exercise of his right to seek and
enjoy asylum. Had he not travelled to Australia to seek asylum, Mr. Yekrop would not
currently be detained.
24.
According to the source, Mr. Yekrop has also been deprived of his liberty in
contravention of article 26 of the International Covenant on Civil and Political Rights. As a
non-Australian citizen, Mr. Yekrop is subject to administrative detention, whereas
Australian citizens in the same position as Mr. Yekrop, namely those who have served
custodial sentences, are not subject to administrative detention following the completion of
their criminal sentence.
Category III
25.
The source submits that the international norms relating to the right to a fair trial
have not been observed in relation to Mr. Yekrop’s detention, specifically the rights
protected under articles 9 and 10 of the Universal Declaration of Human Rights and article
9 of the Covenant.
26.
The source notes that the Human Rights Committee, in its general comment No. 35
(2014) on liberty and security of person, requires that detention must be justified as
reasonable, necessary and proportionate in the light of the circumstances and reassessed as
it extends in time (para. 18).
27.
Nevertheless, the source highlights the fact that Mr. Yekrop has been held in
administrative detention for more than three years. The Government of Australia and the
Department of Immigration and Border Protection, by granting Mr. Yekrop a humanitarian
visa, recognized him as a person who engages the country’s protection obligations. South
Sudan is currently experiencing a period of humanitarian emergency. As such, even if he
was a citizen of South Sudan (which he is not), any return of Mr. Yekrop to South Sudan
would constitute refoulement.
28.
The source thus submits that unless Mr. Yekrop is released from administrative
detention, he will be in detention indefinitely. Given that he cannot return to South Sudan,
his detention is not reasonable. Furthermore, he has reportedly participated in a variety of
rehabilitation and counselling programmes. The source thus argues that Mr. Yekrop no
longer represents a threat to the Australian community, and his detention is not necessary or
proportionate. According to the source, there is no evidence that the Department of
Immigration and Border Protection has reassessed Mr. Yekrop’s detention as it extends in
time.
Category IV
29.
The source submits that Mr. Yekrop, as a recognized refugee who is subject to
prolonged administrative custody, has not been guaranteed the possibility of administrative
or judicial review or remedy.
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30.
As mentioned above (see para. 17), the Australian Migration Act 1958 specifically
provides in sections 189 (1) and 196 (1) and (3) that unlawful non-citizens must be detained
and kept in detention until they are: (a) removed or deported from Australia; or (b) granted
a visa. Section 196 (3) specifically provides that “even a court” cannot release an unlawful
non-citizen from detention, unless the person has been granted a visa.
31.
In this regard, the source notes that the High Court of Australia, in its 2004 decision
on Al-Kateb v. Godwin, upheld mandatory detention of non-citizens as a practice that is not
contrary to the Constitution of Australia. The source also notes that, in its decision in Mr. C.
v. Australia, the Human Rights Committee held that there is no effective remedy for people
subject to mandatory detention in Australia (see CCPR/C/76/D/900/1999, para. 7.4). The
source submits that Mr. Yekrop therefore lacks any chance of his detention being the
subject of a real administrative or judicial review remedy.
Category V
32.
According to the source, Australian citizens and non-citizens are not equal before
the courts and tribunals of Australia. The effective result of the decision of the High Court
in Al-Kateb v. Godwin is that while Australian citizens can challenge administrative
detention, non-citizens cannot.
Response from the Government
33.
On 22 December 2017, the Working Group transmitted the allegations from the
source to the Government under its regular communications procedure. The Working
Group requested the Government to provide, by 21 February 2018, detailed information
about the current situation of Mr. Yekrop and any comments on the source’s allegations.
34.
In its reply of 21 February 2018, the Government of Australia reiterated that it takes
its protection obligations very seriously, and its protection arrangements are premised on
the fundamental obligation of non-refoulement.
35.
In relation to the specific case, the Government confirms that Mr. Yekrop arrived in
Australia on 10 October 2003 as the holder of a global special humanitarian visa (subclass
202) as a dependant on his mother’s visa. The Government notes that since his arrival, Mr.
Yekrop has received over 40 convictions for a range of offences, including destroying or
damaging property, drink-driving, driving vehicles without a licence, larceny and common
assault.
36.
It was due to Mr. Yekrop’s criminal convictions that the Department of Home
Affairs considered cancelling his visa on two separate occasions. On 31 May 2007 and 12
January 2010, Mr. Yekrop was advised that his visa would not be cancelled and he was
issued with a warning letter on both occasions, indicating that any future criminal conduct
could result in his visa being cancelled.
37.
Following further criminal convictions, Mr. Yekrop’s visa was indeed cancelled on
8 November 2012 under section 501 of the Australian Migration Act. On 6 May 2013, Mr.
Yekrop sought review of the decision to cancel his visa at the Administrative Appeals
Tribunal, but since this application was lodged outside the required time frame, the
Tribunal found that it had no jurisdiction to review the decision. As Mr. Yekrop was
released from prison on 1 May 2014, he was detained under section 189 of the Act and
transferred to an immigration detention facility. He has remained in immigration detention
since then.
38.
On 22 January 2014, Mr. Yekrop lodged a protection visa (subclass 866) application.
On 31 May 2014, he was found not to engage the protection obligations of Australia, and
the Department of Home Affairs refused his protection visa application. Further to this, Mr.
Yekrop sought review of the refusal decision at the Refugee Review Tribunal on 4 July
2014, and on 1 October 2014, the Tribunal remitted the case to the Department of Home
Affairs with the direction that Mr. Yekrop was found to engage the protection obligations
of Australia.
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39.
On 3 July 2014, Mr. Yekrop lodged an application for a bridging visa (subclass 050),
which was deemed invalid on 7 July 2014 since he had previously had a visa cancelled
under section 501 of the Australian Migration Act.
40.
According to the Government, on 8 October 2014, Mr. Yekrop’s protection visa
application was referred for refusal consideration under section 501 of the Act and he was
issued with a notice of intent to consider refusal on 3 February 2015. Following
consideration of Mr. Yekrop’s case, the Department of Home Affairs refused his protection
visa application under section 501 of the Act on 5 August 2016. On 15 August 2016, Mr.
Yekrop sought review of the decision to refuse his protection visa application at the
Administrative Appeals Tribunal, which affirmed the decision on 31 October 2016.
41.
On 28 February 2017, the Department of Home Affairs commenced an assessment
of Mr. Yekrop’s case against the section 195A ministerial intervention guidelines for
possible referral to the Minister. On 24 October 2017, his case was found not to meet the
guidelines for referral due to his criminal history, a visa cancelled under section 501 of the
Australian Migration Act and another visa refused under section 501 of the Act. On the
same day, the Department of Home Affairs commenced an International Treaties
Obligations Assessment to consider the ongoing non-refoulement obligations of Australia
in relation to Mr. Yekrop, which is still under way.
42.
The Government confirms that Mr. Yekrop is not eligible to apply for any other type
of visa and that he remains in detention as an unlawful non-citizen. The Government
objects to the submission that Mr. Yekrop has not been granted the possibility of
administrative or judicial review or remedy and notes that he was able to seek merit and
judicial review of the decision to cancel his global special humanitarian visa (subclass 202)
and to refuse his protection visa application. While Mr. Yekrop did seek this in relation to
his global special humanitarian visa, he did so outside the prescribed time limit. His
application to review the decision to refuse his protection visa was unsuccessful. The
Government, however, points out that Mr. Yekrop did not seek judicial review of either of
those decisions, which he could have done before the Federal Court of the High Court of
Australia.
43.
The Government also rejects the submissions made by the source in relation to the
effect of the 2004 decision of the High Court in Al-Kateb v. Godwin and points out that
actions such as habeas corpus remain available to all citizens and non-citizens.
44.
Furthermore, the Government underlines that Mr. Yekrop’s detention has been
reviewed on 37 occasions under case management processes by the Case Management and
Detention Review Committee meetings. The outcomes of those reviews found that Mr.
Yekrop’s detention continues to be appropriate and that his current placement is suitable.
Further information from the source
45.
On 21 February 2018, the reply of the Government was sent to the source for its
comments. In its response of 6 March 2018, the source rejects the possibility of habeas
corpus in the case of Mr. Yekrop. Noting that Mr. Yekrop arrived in Australia on the basis
of a visa which was subsequently withdrawn, Mr. Yekrop’s detention complies with the
national legislation of Australia, which thus renders a habeas corpus application useless as
it applies to alleged instances of unlawful detention.
46.
The source points out that, according to its Smart Traveller website, the Government
of Australia is advising that no one should travel to South Sudan.2 The source also refers to
the most recent Administrative Appeals Tribunal decision of 6 March 2018 in relation to
South Sudan, in which the Tribunal decided that South Sudan was unsafe for anyone to
return to.3
2 http://smartraveller.gov.au/Countries/africa/east/Pages/south_sudan.aspx.
3 See Jayba and Minister for Immigration and Border Protection (Migration) [2018] AATA 385,
Administrative Appeals Tribunal of Australia, 6 March 2018.
A/HRC/WGAD/2018/20
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47.
The source agrees with the Government’s point that Mr. Yekrop has been able to
seek merits and judicial review of the decisions to cancel his visa and to refuse his
protection visa application. However, according to the source, those reviews relate to visa
processes, and not to the detention itself. The source reiterates that Mr. Yekrop’s detention
is legal in Australia, but it is nevertheless arbitrary, especially as it extends in time.
Discussion
48.
The Working Group thanks both the source and the Government for their
engagement in this case and for the extensive comments provided, which have assisted it in
reaching its conclusions.
49.
The source has submitted that Mr. Yekrop’s detention is arbitrary and falls under
categories II, III, IV and V. While not addressing the categories as applied by the Working
Group specifically, the Government of Australia rejects those submissions. The Working
Group has examined them in turn.
50.
The source submits that Mr. Yekrop has been deprived of liberty as a result of the
exercise of his rights guaranteed under article 14 of the Universal Declaration of Human
Rights, whereby everyone has the right to seek and to enjoy in other countries asylum from
persecution. Mr. Yekrop came to Australia as a refugee in exercise of his right to seek and
enjoy asylum and had he not travelled to Australia to seek asylum, Mr. Yekrop would not
currently be detained.
51.
The Working Group observes that Mr. Yekrop arrived in Australia on 10 October
2003 as the holder of a global special humanitarian visa (subclass 202) as a dependant on
his mother’s visa and that he has lived in Australia ever since. The Working Group also
observes that he received this particular visa following an assessment that his case engages
the international protection responsibility of Australia; and that upon his arrival he was not
detained but was free to live in the community. These are all points which are not contested
by either the source or the Government.
52.
The Working Group notes that since his arrival in Australia, Mr. Yekrop has had
some 40 criminal convictions and that due to his criminal convictions, the Department of
Home Affairs considered cancelling his visa on two separate occasions. On 31 May 2007
and 12 January 2010, Mr. Yekrop was advised that his visa would be cancelled and he was
issued with a warning letter on both occasions, indicating that any future criminal conduct
could result in his visa being cancelled. Following further criminal convictions, Mr.
Yekrop’s visa was indeed cancelled on 8 November 2012 under section 501 of the 1958
Australian Migration Act. Mr. Yekrop was placed in administrative detention upon being
released from prison on 1 May 2014 and has been in immigration detention ever since.
These are also points which are not contested by either the source or the Government.
53.
The Working Group observes that the cancellation of Mr. Yekrop’s visa resulted
from an adverse character assessment, which in turn resulted from the sheer number of
criminal convictions. The cancellation of his visa was the reason why he was detained as an
unlawful non-citizen. On the basis of these facts, the Working Group is unable to agree
with the source that Mr. Yekrop’s detention resulted from his legitimate exercise of the
right to seek asylum as provided in article 14 of the Universal Declaration of Human Rights.
On the contrary, it is clear to the Working Group that Mr. Yekrop was able to exercise his
right to seek asylum: he arrived in Australia and was permitted to live as freely as everyone
else in the country until he came into conflict with law. The Working Group therefore
concludes that the detention of Mr. Yekrop does not fall under category II.
54.
The source has also submitted that the international norms relating to the right to a
fair trial have not been observed in relation to Mr. Yekrop’s detention and that his detention
therefore falls under category III. The source notes that Mr. Yekrop has been held in
administrative detention for more than three years. The source argues that Mr. Yekrop no
longer represents a threat to the Australian community, and his detention is not necessary or
proportionate. According to the source, there is no evidence that the Department of
Immigration and Border Protection has reassessed Mr. Yekrop’s detention as it extends in
time.
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55.
The source also argues that Mr. Yekrop’s detention is arbitrary and falls under
category IV since, as a recognized refugee who is subject to prolonged administrative
custody, he has not been guaranteed the possibility of administrative or judicial review or
remedy. The source notes that the Australian Migration Act 1958 specifically provides in
sections 189 (1) and 196 (1) and (3) that unlawful non-citizens must be detained and kept in
detention until they are: (a) removed or deported from Australia; or (b) granted a visa.
Section 196 (3) specifically provides that “even a court” cannot release an unlawful non-
citizen from detention, unless the person has been granted a visa.
56.
In this regard, the source notes that the High Court of Australia, in its decision on
Al-Kateb v. Godwin, upheld mandatory detention of non-citizens as a practice that is not
contrary to the Constitution of Australia. The source also notes that, in its decision in Mr. C.
v. Australia, the Human Rights Committee held that there is no effective remedy for people
subject to mandatory detention in Australia, and that Mr. Yekrop therefore lacks any chance
of his detention being the subject of a real administrative or judicial review remedy.
57.
The Working Group recalls that, according to the United Nations Basic Principles
and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their
Liberty to Bring Proceedings Before a Court, the right to challenge the lawfulness of
detention before a court is a self-standing human right, which is essential to preserve
legality in a democratic society.4 This right, which in fact constitutes a peremptory norm of
international law, applies to all forms of deprivation of liberty, 5 and it applies to all
situations of deprivation of liberty, including not only to detention for purposes of criminal
proceedings but also to situations of detention under administrative and other fields of law,
including military detention, security detention, detention under counter-terrorism measures,
involuntary confinement in medical or psychiatric facilities and migration detention. 6
Moreover, it applies irrespective of the place of detention or the legal terminology used in
the legislation. Any form of deprivation of liberty on any ground must be subject to
effective oversight and control by the judiciary.7
58.
The Working Group observes that the facts of Mr. Yekrop’s case as presented to it
by both the source and the Government are characterized by various appearances by him
before courts, pursuing his visa applications and challenging their rejection. However, none
of these appearances have concerned his need to remain in detention while his visa
applications are being considered and no judicial body has ever been involved in the
assessment of the legality of Mr. Yekrop’s detention, which would necessarily involve the
assessment of the legitimacy, need and proportionality to detain.8
59.
In other words, throughout his four years of detention, Mr. Yekrop has been unable
to challenge the legality of his detention per se. The only body that appears to have been
reviewing the need for Mr. Yekrop to remain in detention is the Case Management and
Detention Review Committee. However, the Working Group observes that this is not a
judicial body. Moreover, the Working Group observes the failure on behalf of the
Government to explain how the reviews carried out by that Committee have satisfied the
guarantees encapsulated in the right to challenge the legality of detention enshrined in
article 9 of the Covenant.
60.
The Working Group also recalls the numerous findings by the Human Rights
Committee in which the application of mandatory immigration detention in Australia and
the impossibility of challenging such detention has been found to be in breach of article 9
(1) of the Covenant.9
4 See A/HRC/30/37, paras. 2–3.
5 Ibid., para. 11.
6 Ibid., annex, para. 47 (a).
7 Ibid., annex, para. 47 (b).
8 See the Working Group’s revised deliberation No. 5 on deprivation of liberty of migrants, paras. 12–
13.
9 See Mr. C. v. Australia; Baban and Baban v. Australia (CCPR/C/78/D/1014/2001); Shafiq v.
Australia (CCPR/C/88/D/1324/2004); Shams et al. v. Australia
(CCPR/C/90/D/1255,1256,1259,1260,1266,1268,1270&1288/2004); Bakhtiyari et al. v. Australia
A/HRC/WGAD/2018/20
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61.
In addition, as the Working Group stated in its revised deliberation No. 5 on
deprivation of liberty of migrants, detention in the migration setting must be exceptional
and in order to ensure this, alternatives to detention must be sought.10 The Working Group
notes that the Government has not provided any details on the alternatives to detention that
the Case Management and Detention Review Committee or any other body have considered
in the case of Mr. Yekrop and therefore must conclude that these were not considered,
which is a further breach of article 9 (1) of the Covenant.
62.
The Working Group thus concludes that Mr. Yekrop has been denied the right to
challenge the continued legality of his detention in breach of article 9 of the Covenant and
that his detention is therefore arbitrary, falling under category IV and not category III as
submitted by the source.
63.
The source has further submitted that the detention of Mr. Yekrop falls under
category V since Australian citizens and non-citizens are not equal before the courts and
tribunals of Australia. The effective result of the decision of the High Court in Al-Kateb v.
Godwin is that while Australian citizens can challenge administrative detention, non-
citizens cannot. The Government rejects this submission made by the source and points out
that actions such as habeas corpus remain available to all citizens and non-citizens.
64.
The Working Group is surprised by the Government’s submission that actions such
as habeas corpus are a possible avenue of redress for Mr. Yekrop. It is clear to the Working
Group that the current Australian legislation does permit the detention of Mr. Yekrop and
therefore the habeas corpus challenge, which is aimed at challenging illegal detention, does
not provide a realistic avenue of redress for people in Mr. Yekrop’s situation. However, the
Working Group recalls that just because a detention is carried out in conformity with
national law, it does not mean that the detention is not arbitrary under international law. All
States must ensure that their domestic legislation duly and fully reflects the obligations
stemming from international law.
65.
The Working Group notes the numerous findings by the Human Rights Committee
in which the application of mandatory immigration detention in Australia and the
impossibility of challenging such detention has been found to be in breach of article 9 (1) of
the Covenant.11 The Working Group also notes that the effect of the decision of the High
Court of Australia in the case of Al-Kateb v. Godwin is such that non-citizens have no
effective remedy against their continued administrative detention.
66.
The Working Group specifically notes the decision of the Human Rights Committee
in paragraph 9.3 of F.J. et al. v. Australia. In that case, the Committee examined the
implications of the High Court’s judgment in the case of Al-Kateb v. Godwin and concluded
that the effect of that judgment is such that there is no effective remedy to challenge the
legality of continued administrative detention.
67.
In the past, the Working Group has concurred with the views of the Human Rights
Committee on this matter,12 and this remains the position of the Working Group in the
present case. The Working Group underlines that this situation is discriminatory and
contrary to articles 16 and 26 of the Covenant. It therefore concludes that the detention of
Mr. Yekrop is arbitrary, falling under category V.
68.
The Working Group is deeply concerned that Mr. Yekrop has been in detention for
four years now. The Government itself acknowledges that he is not eligible for any other
type of visa, and he thus faces the real prospect of indefinite detention given that the only
(CCPR/C/79/D/1069/2002); D and E and their two children v. Australia (CCPR/C/87/D/1050/2002);
Nasir v. Australia (CCPR/C/116/D/2229/2012); and F.J. et al. v. Australia
(CCPR/C/116/D/2233/2013).
10 See A/HRC/13/30, para. 59. See also E/CN.4/1999/63/Add.3, para. 33; A/HRC/19/57/Add.3, para. 68
(e); A/HRC/27/48/Add.2, para. 124; A/HRC/30/36/Add.1, para. 81; and opinion No. 72/2017.
11 See C. v. Australia; Baban and Baban v. Australia; Shafiq v. Australia; Shams et al. v. Australia
(CCPR/C/90/D/1255,1256,1259,1260,1266,1268,1270&1288/2004); Bakhtiyari et al. v. Australia; D
and E and their two children v. Australia; Nasir v. Australia; and F.J. et al. v. Australia.
12 See opinions No. 28/2017, No. 42/2017, No. 71/2017 and No. 21/2018.
A/HRC/WGAD/2018/20
10
other possibility for him currently is deportation, which is likely to engage the
responsibility of Australia under the prohibition against refoulement.
69.
The Working Group has repeatedly pointed out that detention of asylum seekers
must never be unlimited or of excessive length, that a maximum period should be
imperatively provided by law and that indefinite detention is arbitrary. 13 The Working
Group once again emphasizes that just because a detention is carried out in conformity with
national law, it does not mean that the detention is not arbitrary under international law. All
States must ensure that their domestic legislation duly and fully reflects the obligations
stemming from international law.
70.
Lastly, the Working Group notes with concern that the present case is among several
cases concerning immigration detention in Australia that have come before it during the
past year.14 All of those cases address the mandatory immigration detention policy and, in
all cases, the Working Group has found the detention to be arbitrary.
Disposition
71.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of William Yekrop, being in contravention of
articles 2, 3, 7, 8 and 9 of the Universal Declaration of Human Rights and articles 2,
9, 16 and 26 of the International Covenant on Civil and Political Rights, is arbitrary
and falls within categories IV and V.
72.
The Working Group requests the Government of Australia to take the steps
necessary to remedy the situation of Mr. Yekrop without delay and bring it into conformity
with the relevant international norms, including those set out in the Universal Declaration
of Human Rights and the International Covenant on Civil and Political Rights.
73.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Yekrop immediately and accord him
an enforceable right to compensation and other reparations, in accordance with
international law.
74.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Yekrop and to take appropriate measures against those responsible for the violation of his
rights.
Follow-up procedure
75.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Yekrop has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Yekrop;
(c)
Whether an investigation has been conducted into the violation of Mr.
Yekrop’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of Australia with its international obligations in line
with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
76.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
13 See opinions No. 5/2009, No. 42/2017 and No. 71/2017; revised deliberation No. 5, paras. 25–26; and
A/HRC/13/30, para. 61.
14 See opinions No. 21/2018, No. 71/2017, No. 42/2017 and No. 28/2017.
A/HRC/WGAD/2018/20
11
whether further technical assistance is required, for example, through a visit by the
Working Group.
77.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
78.
The Government should disseminate through all available means the present opinion
among all stakeholders.
79.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.15
[Adopted on 20 April 2018]
15 See Human Rights Council resolution 33/30, paras. 3 and 7.