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.18-16233(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-second session, 20–24 August 2018
Opinion No. 50/2018 concerning Edris Cheraghi (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 11 May 2018 the
Working Group transmitted to the Government of Australia a communication concerning
Edris Cheraghi. The Government replied to the communication on 10 July 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 para. 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/2018/50
General Assembly
Distr.: General
1 October 2018
Original: English
A/HRC/WGAD/2018/50
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.
Edris Cheraghi, born in 1987, is of Iranian origin. He usually resides at the
Villawood immigration detention centre, Australia.
Arrest and detention
5.
According to the source, Mr. Cheraghi arrived at Christmas Island, Australia, on a
boat on 13 December 2012 to seek asylum from persecuting forces in Iran. He reportedly
sought recognition of his refugee status because:
(a)
Mr. Cheraghi is from the Arab Kamari ethnic group, which is a subtribe of
the Bakhtiari tribe. In 2011, the Government of the Islamic Republic of Iran reportedly
confiscated (without compensation or permission) Mr. Cheraghi’s family land in order to
build the Gotvand Dam in Khuzestan. The confiscation of the land left Mr. Cheraghi’s
family without sufficient means to subsist. The confiscation of land without compensation
or permission is allegedly also reflective of the treatment of Arabs in Iran;
(b)
In approximately August 2014, while living in Australia, Mr. Cheraghi
converted from Islam to Christianity. He would thus be viewed as an apostate in Iran;
(c)
Mr. Cheraghi reportedly had a relationship with a divorced woman, whose
ex-husband was well connected with the Government of the Islamic Republic of Iran. In
2012, she ended the relationship and Mr. Cheraghi was subsequently targeted by various
groups for threats and assaults.
6.
Mr. Cheraghi was detained upon arrival at Christmas Island by officials from the
Department of Immigration and Border Protection. The source reports that all those arriving
by boat are provided with a type of warrant issued by the Department, but no documents are
currently available.
7.
The source reports that Mr. Cheraghi was subsequently transferred to the Darwin
immigration detention centre, where he spent approximately three weeks before being
moved to Wickham Point detention centre in the Northern Territory for approximately two
months. Sometime around May 2013, Mr. Cheraghi was reportedly released into the
community on a series of bridging visas E.
8.
Around July 2015, Mr. Cheraghi was charged with an offence and arrested, and on
11 September 2015 his bridging visa was cancelled by the Department of Immigration and
Border Protection and he was transferred to the Villawood immigration detention centre.
9.
The source states that Mr. Cheraghi is being detained on the basis of the Australian
Migration Act 1958. The Act specifically provides in sections 189 (1), 196 (1) and 196 (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.
10.
Around October 2015, Mr. Cheraghi was placed by the Department of Immigration
and Border Protection in administrative detention. He was subsequently transferred
between Christmas Island and Villawood immigration detention centre a couple of times
before being transferred back to Villawood in about February 2016, where he remains
today.
11.
The source notes that while Mr. Cheraghi has been charged with (a) breaking and
entering, (b) assault occasioning actual bodily harm and (c) stealing, he has not been
convicted of any offence.
12.
The court dates for Mr. Cheraghi’s offences have been rescheduled several times.
The source reports that at a trial held in mid-December 2017, the jury was unable to reach
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(even by majority) a verdict and the court date for a retrial was subsequently set for 13
August 2018. The source points out that by that time, Mr. Cheraghi would have been held
in administrative detention for almost three years while waiting for the criminal justice
process.
13.
According to the source, that means, in effect, that the Department of Immigration
and Border Protection has prejudged Mr. Cheraghi’s guilt and determined that merely a
criminal charge, without conviction, is sufficient to determine that a person is guilty and, as
such, to cancel a person’s visa and administratively detain that person. The source also
notes that the subject matter of the offence is immaterial — what is material is the
prejudgment of guilt resulting in detention. Furthermore, the source emphasizes that the
behaviour of the Department in doing so represents a worrying intrusion into the separation
of powers on which the Australian political system is based.
14.
The source also notes that Mr. Cheraghi has a history of mental illness or
psychosocial disability. He has been diagnosed with various conditions, including
borderline personality disorder, bipolarity, depression and anxiety. He has a history of self-
harm (both in the Islamic Republic of Iran and Australia) and he continues to be assessed as
being at high risk of self-harm. The source notes that the continuing detention of Mr.
Cheraghi is having a negative impact on his mental health. In that regard, the source notes
that the counsellors provided by the Government of Australia have recommended that he be
released into the community to better manage his mental health. Given that Mr. Cheraghi
had reported hearing voices and a high level of anxiety, the counsellors also recently
recommended an assessment by a psychiatrist and regular observation by a counsellor
while he is detained owing to his past suicide attempts and history.
15.
According to the source, Mr. Cheraghi has exhausted all domestic remedies to
secure his release. Following his arrival in Australia on 13 December 2012, the Department
of Immigration and Border Protection conducted an irregular maritime arrival entry
interview on 17 January 2013 as part of his protection obligation application process. He
was subsequently granted legal assistance to complete a protection visa application on or
about 24 February 2016. On 27 June 2016, he lodged a safe haven enterprise (subclass 790)
visa application which was refused by the Department on 10 October 2016. On 14 October
2016, the refusal of the Department was referred to the Immigration Assessment Authority
for its review of the merits; on 17 January, it upheld the decision of the Department.
Submissions under category II
16.
The source submits that Mr. Cheraghi has been deprived of his liberty as a result of
the exercise of his rights guaranteed by 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”. The source thus submits that the detention of Mr. Cheraghi constitutes
an arbitrary deprivation of his liberty, falling within category II.
Submissions under category IV
17.
The source further submits that Mr. Cheraghi, as an asylum seeker, who is subject to
prolonged administrative custody, has not been guaranteed the possibility of administrative
or judicial review or remedy.
18.
As referred to in paragraph 9 above, the Australian Migration Act 1958 specifically
provides in sections 189 (1), 196 (1) and 196 (3) that unlawful non-citizens must be
detained and kept in detention until they are either removed or deported from Australia
(which in Mr. Cheraghi’s case would very likely constitute refoulement (including
constructive refoulement)), or granted a visa. In that respect, the source notes that Mr.
Cheraghi has not been recognized as being owed protection obligations by Australia.
Furthermore, given that he currently faces criminal charges, it is extremely unlikely that the
Government would grant him either a bridging visa or community detention placement to
enable him to reside in the community. The source further recalls that 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).
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19.
In that respect, the source notes that the High Court of Australia, in its decision on
the case of Al-Kateb v. Godwin (2004) 219 CLR 562, has upheld mandatory detention of
non-citizens as a practice which is not contrary to the Constitution of Australia. The source
further notes that the Human Rights Committee in C. v. Australia (CCPR/C/76/D/900/1999)
held that there is no effective remedy for people subject to mandatory detention in Australia.
As such, while Mr. Cheraghi has progressed with the protection visa process, the
Department of Immigration and Border Protection has had approximately five and a half
years in which to determine his protection claim. The Immigration Assessment Authority
most recently reviewed the decision by the Department Mr. Cheraghi’s protection visa
application and upheld that decision.
20.
In addition, Mr. Cheraghi has sought legal advice as to the merits of any judicial
review of the decision of the Immigration Assessment Authority. The advice that Mr.
Cheraghi has received is that there is no judicial (as opposed to the merits, which a court
cannot review) error in the decision of the Authority and there are thus no prospects of
success for a judicial review of that decision. The source notes that such processes relate to
Mr. Cheraghi’s protection visa process and not directly to his detention. However, the
source also notes that a positive protection process assessment without character concerns
would result in the release of Mr. Cheraghi from detention.
21.
The source also states that if Mr. Cheraghi was found to be owed protection
obligations by Australia, because of the criminal charge against him, it is extremely
unlikely that he would meet the Department’s character requirements for the granting of a
visa.
22.
On the basis of the above, the source notes that Mr. Cheraghi lacks any chance of his
detention being the subject of a real administrative or judicial review or remedy. His
detention thus constitutes an arbitrary deprivation of liberty, falling within category IV.
Submissions under category V
23.
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 the case of Al-Kateb v. Godwin, as referred to in paragraph 19 above, is that while
Australian citizens can challenge administrative detention, non-citizens cannot. The
detention of Mr. Cheraghi thus constitutes an arbitrary deprivation of his liberty, falling
within category V.
Response from the Government
24.
On 11 May 2018, 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 10 July 2018, detailed information about the
current situation of Mr. Cheraghi and any comments on the source’s allegations.
25.
In its reply of 10 July 2018, the Government of Australia reiterates its long-standing
commitment to cooperating with the United Nations and its strong human rights record.
The Government remains committed to an effective and robust international protection
programme, recognizing the dual humanitarian imperative to both afford protection where
it is engaged and to protect people from abuse and exploitation. The Government also
reiterates that it takes its protection obligations very seriously, and its protection
arrangements are premised on the fundamental obligation of non-refoulement.
26.
The Government then outlines its legal and policy framework in relation to
immigration detention. The Government considers that mandatory immigration detention of
unlawful non-citizens is an essential component of strong border control. According to the
legislative framework, the length of immigration detention is not limited by a set time
frame but is dependent upon a number of factors, including identity determination,
developments in country information and the complexity of processing according to
individual circumstances relating to health, character or security matters. Relevant
assessments are completed as expeditiously as possible to facilitate the shortest possible
time frame for detaining people in immigration detention facilities.
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27.
It is the position of the Government that the immigration detention of an individual
on the basis that he or she is an unlawful non-citizen is not arbitrary per se under
international law. Continuing detention may become arbitrary after a certain period of time
without proper justification. Being held in detention is a last resort for the management of
unlawful non-citizens. The Government adds that its case management practices ensure that
any person who is detained understands the reason for their detention and the choices and
pathways which may be available to them, including choosing to return to their country of
origin or deciding whether to pursue legal remedies. The Government also notes that the
immigration detention system is subject to regular scrutiny, including visits by external
agencies, to ensure that people in immigration detention are treated humanely, decently and
fairly.
28.
Against that background, the Government explains that Mr. Cheraghi arrived at
Christmas Island, an excised offshore place, on 16 December 2012, as an illegal maritime
arrival. At the time of his arrival, he was reasonably suspected to be an unlawful non-
citizen and did not hold a visa to enter Australia. As a consequence, he was detained under
section 189 (3) of the Migration Act 1958, which provides that if an officer knows or
reasonably suspects that a person in an excised offshore place is an unlawful non-citizen,
the officer must detain the person.
29.
On 22 March 2013, Mr. Cheraghi was transferred to the Northern immigration
detention centre and detained under section 189 (1) of the Act.
30.
The Government states that on 22 May 2013, the former Minister for Home Affairs
intervened under section 195A of the Migration Act, to grant Mr. Cheraghi a temporary
humanitarian stay (subclass 449) visa for seven days and a bridging visa E (subclass 050)
for six months. Mr. Cheraghi was released from immigration detention the same day.
31.
The bridging visa E ran out on 22 November 2013. On 9 October 2014, the Minister
intervened under sections 91L (1) and 46A (2) of the Migration Act to enable the
Department to grant Mr. Cheraghi a bridging visa E. On 31 October 2014, Mr. Cheraghi
was granted a bridging visa E and on 15 August 2015, he was granted a further one.
32.
According to the Government, on 26 August 2015, Mr. Cheraghi was remanded in
criminal custody on a number of criminal charges, including aggravated breaking and
entering with intent to inflict actual bodily harm and stealing property in a dwelling/house.
33.
On 11 September 2015, the delegate of the Minister cancelled Mr. Cheraghi’s
bridging visa E under section 116 (1) (g) of the Migration Act, pursuant to regulation 2.43
(p) (ii) of the Migration Regulation 1994 and on 18 September 2015, Mr. Cheraghi lodged
an application with the Administrative Appeals Tribunal for review of the cancellation of
his visa (WE050).
34.
The Government also states that on 30 October 2015, Mr. Cheraghi was detained
under section 189 (1) of the Migration Act upon release from the John Morony correctional
centre and was transferred to Villawood immigration detention centre.
35.
On 19 November 2015, the Administrative Appeals Tribunal confirmed the decision
to cancel Mr. Cheraghi’s bridging visa E.
36.
On 1 December 2015, the Minister intervened to lift the bar under section 46A (2) of
the Migration Act to allow Mr. Cheraghi to apply for a temporary protection (subclass 785)
visa or a safe haven enterprise visa.
37.
According to the Government, on 6 June 2016 Mr. Cheraghi was issued with a
criminal justice stay certificate by the New South Wales Department of Public Prosecutions
in respect of the criminal charges laid against him on 26 August 2015. On 28 June 2016, the
delegate of the Minister refused to grant Mr. Cheraghi a criminal justice (subclass 951) visa.
On the same day, Mr. Cheraghi applied for a safe haven enterprise visa.
38.
On 4 July 2016, he was interviewed by the Department in respect of his application.
On 29 July 2016, the bridging visa E application associated with the safe haven enterprise
visa application was found to be invalid. The delegate subsequently refused to grant Mr.
Cheraghi a safe haven enterprise visa on 10 October 2016.
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39.
On 17 January 2017, the Immigration Assessment Authority confirmed the
delegate’s decision. On 8 February 2017, Mr. Cheraghi lodged an appeal against the
decision of the Immigration Assessment Authority at the Federal Circuit Court. On 22 May
2017, he decided not to pursue this application and filed a notice of discontinuance.
40.
On 16 January 2018, Mr. Cheraghi applied for a bridging visa E but the application
was deemed invalid on 18 January 2018.
41.
According to the Government, the criminal charges laid against Mr. Cheraghi on 26
August 2015 are still in force. He was scheduled to appear before the Parramatta District
Court for mention on 26 July 2018 and his trial was scheduled to commence on 14 August
2018.
42.
On 20 June 2018, Mr. Cheraghi’s case was referred for assessment by the
Department of Home Affairs against the ministerial intervention guidelines, for a possible
referral to the Minister for consideration of the grant of a visa or residence determination
under sections 195A and 197AB of the Migration Act. Mr. Cheraghi’s case continues to be
assessed.
43.
The Government rejects the claims by the source that the removal or deportation of
Mr. Cheraghi would constitute refoulement. He is an unlawful non-citizen, detained under
section 189 of the Migration Act and is required under section 196 of the Act to be detained
under section 198 or 199 of the Act, or granted a visa. As noted above, Mr. Cheraghi
applied for a safe haven enterprise visa and this was refused. His case was thus assessed
against the country’s protection obligations and it was found that Australia did not owe him
protection.
44.
The Government also rejects claims made by the source that Mr. Cheraghi has not
been guaranteed the possibility of administrative or judicial review or remedy of his
ongoing detention. According to the Government, a person in immigration detention is able
to seek judicial review of the lawfulness of his or her detention before the Federal Court or
the High Court of Australia. Section 75 (v) of the Constitution provides that the High Court
of Australia has original jurisdiction in relation to every matter where a writ of mandamus,
prohibition or injunction is sought against an officer of the Commonwealth.
45.
The Government rejects further claims by the source that, as a result of the decision
of the High Court in the case of Al-Kateb v. Godwin non-citizens are not equal before the
courts. The High Court held that the provisions of the Migration Act requiring the detention
of non-citizens until they are removed, deported or granted a visa, even if removal is not
reasonably practicable in the foreseeable future, were valid.
46.
The Government explains that Mr. Cheraghi’s detention has been reviewed on
numerous occasions under case management processes in meetings of the Case
Management and Detention Review Committee. The outcomes of those reviews have found
that Mr. Cheraghi’s detention continues to be appropriate.
47.
The Government adds that Mr. Cheraghi remains in immigration detention in
Australia as he is an unlawful non-citizen with outstanding criminal matters. A number of
detention review mechanisms allow for a regular review of the merits of his ongoing
detention. They include detention review committees, which are held monthly to review all
cases in those being held in detention, to ensure the ongoing lawfulness and reasonableness
of the decision to detain a person, by taking into account all the circumstances of the case,
including adherence to legal obligations. In addition, part of the ongoing review of
individuals in immigration detention includes a risk-based approach to the consideration of
the appropriate placement and management of an individual while their status is being
resolved. In accordance with section 486N of the Migration Act, the Secretary of the
Department of Home Affairs provides the Commonwealth Ombudsman with a report
relating to the circumstances of a person’s detention for every person who has been in
immigration detention for more than two years and every six months thereafter.
48.
The Government concludes by noting that people in immigration detention have
access to clinically recommended physical and mental health-care services of a standard
generally commensurate with the health care available to the Australian community, taking
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into account the diverse and potentially complex health needs and cultural sensitivity of
people in immigration detention.
Further information from the source
49.
On 10 July 2018 the Working Group transmitted the reply from the Government to
the source for any further comments.
50.
In its response of 24 July 2018, the source notes that the Government response
overall appears to assert that because open-ended detention (subject to certain events,
discussed below) is lawful in Australia, that it is either not arbitrary or otherwise complies
with the country’s international obligations. According to the Government, Mr. Cheraghi,
as an unlawful non-citizen, is lawfully detained under Australian law. The source, however,
argues that such lawful detention is arbitrary and open-ended (or worse, indefinite).
51.
The source reiterates that under the Migration Act 1958, an unlawful non-citizen
must be detained, and kept in immigration detention until they are removed from Australia
or granted a visa. In addition, section 196 (3) of the Act provides that: “To avoid doubt,
subsection (1) prevents the release, even by a court, of an unlawful non-citizen from
detention (otherwise than as referred to in paragraph (1) (a), (aa) or (b)) unless the non-
citizen has been granted a visa.” As such, providing there is some sort of process relating to
the grant of a visa or removal (even if removal is not reasonably practicable in the
foreseeable future), the detention of an unlawful non-citizen is permitted under Australian
law.
52.
The source adds that the detention of Mr. Cheraghi has a further element, which is
that he has been issued with a criminal justice stay certificate that prevents his removal
while his criminal matter is ongoing. That means that he is detained, despite the
Government making no current attempts to remove him or to grant him a visa. The source
adds that Mr. Cheraghi remains in detention, despite pleading not guilty, and a jury being
unable to render a verdict. As such, he faces a second trial. In that respect, the source
submits that the length of time Mr. Cheraghi has waited for an outcome on his criminal
matters exceeds the maximum custodial sentence that could be imposed if he is found
guilty.
53.
According to the Government response, persons can make a request to the Minister
of Home Affairs to exercise his personal, discretionary and non-compellable powers under
the Migration Act to intervene in their case. The source adds that they are also not
reviewable. As such, Mr. Cheraghi can reportedly not pursue this option as a legitimate
path to end his detention. In addition, even if an unlawful non-citizen does make
submissions to the Minister to exercise those powers, the submission must pass through a
series of guideline checks to determine if the submission should be referred to the Minister.
Mr. Cheraghi was referred under this power on 20 June 2018. That followed a diagnosis of
deep vein thrombosis and pulmonary embolism, following hospitalization after he had
coughed blood for several days. In addition, since 20 June 2018, Mr. Cheraghi has
reportedly been assaulted twice in detention and has two broken hands, both of which
required surgery. He also suffered a head injury, which required staples. Despite repeated
requests to the Department of Home Affairs for Mr. Cheraghi to be urgently assessed
against the guidelines for referral to the Minister, the source is not aware that any progress
has been made.
54.
The source refers to the Government response, where it notes its commitment to
ensuring that all individuals in administrative immigration detention are treated in a manner
consistent with the country’s international legal obligations. In that respect, the source
submits that it is not the treatment of people in detention that is the subject of its current
complaint. It is the actual fact of detention itself. The source adds that despite five opinions
issued in 2017 and 2018, where the Working Group found that the subjects of those
opinions were held in arbitrary detention, none of those individuals have been released.
55.
In its response, the Government notes various situations in which detention may not
be arbitrary and where a person can challenge their detention, through actions such as
habeas corpus. However, the source submits that these situations do not apply to Mr.
Cheraghi. The source adds that the discussion of such situations generates an impression
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that options may be available to Mr. Cheraghi. That is not correct, as his detention is lawful
under Australian law, whereas a habeas corpus action relates to unlawful detention.
56.
In relation to the statement by the Government that the length of detention is not
limited by a set time frame but is dependent upon a number of factors, including identity
determination, developments in country information and the complexity of processing
according to individual circumstances relating to health, character or security matters, the
source submits that Mr. Cheraghi’s identity is not in question, nor have any health or
security matters been raised by the Department. The source adds that Mr. Cheraghi is in
detention because the Department has determined that he does not meet the character
requirements under section 501 of the Migration Act. That is despite Mr. Cheraghi pleading
not guilty to the criminal charges he is accused of and a jury being unable to render a
verdict.
57.
The Government further states in its response that relevant assessments are
completed as expeditiously as possible to ensure that people are detained in immigration
detention facilities for the shortest possible time. According to the source, that is not correct,
as people in detention centres can wait for more than five years for a primary assessment to
be completed (including character considerations).
58.
According to the Government response, being held in detention is a last resort for
the management of unlawful non-citizens. The source notes that this is not correct, as it is
the first resort for unlawful non-citizens. Under section 189 of the Migration Act, unlawful
non-citizens must be detained.
59.
The source reiterates that the case of Al-Kateb v. Godwin reinforces the position of
Mr. Cheraghi, given that his arbitrary open-ended detention is authorized by Australian law
(in terms of both legislation and case law). In relation to the detention review mechanisms
referred to in the Government response, the source notes that those mechanisms operate
within the legal framework that permits arbitrary detention. They also operate within a set
of referral guidelines.
60.
In conclusion, the source disagrees with the assessment of the Government in
relation to access to health care in Australian detention centres and it refers to a report of
the Public Interest Advocacy Centre.1 The source adds that the Islamic Republic of Iran is
not a safe country for Mr. Cheraghi to return to and the country does not accept involuntary
returnees from Australia.
Discussion
61.
The Working Group thanks the source and the Government for their submissions.
The Working Group appreciates the cooperation and engagement of both parties in the
present matter.
62.
The source has submitted that the detention of Mr. Cheraghi is arbitrary and falls
within categories II, IV and V. While not addressing those categories specifically, the
Government of Australia rejects the submissions. The Working Group will examine them in
turn.
63.
The source has submitted that Mr. Cheraghi has been deprived of liberty as a result
of the exercise of his rights guaranteed by article 14 of the Universal Declaration of Human
Rights. It is submitted that since being charged with an offence and arrested, Mr.
Cheraghi’s visa was cancelled on 11 September 2015 and that he has been in administrative
detention ever since. The source emphasizes that Mr. Cheraghi has not been convicted of a
crime and that he has been held in administrative detention for almost three years while
waiting for the criminal justice process.
64.
The Government has argued that anyone who arrives in Australia without a visa or
whose visa is cancelled must be detained until that person is removed from Australia or a
visa is issued. In relation to Mr. Cheraghi, the Government has submitted that he arrived at
1 Public Interest Advocacy Centre, “In poor health: health care in Australian immigration detention”
(2018).
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Christmas Island, Australia, on 16 December 2012 and since he was not in the possession
of a valid visa, he was detained under section 189 (3) of the Migration Act. On 22 May
2013, he was granted a temporary visa for seven days with further visas granted
subsequently. However, on 26 August 2015, he was arrested and charged with a criminal
offence and his visa was cancelled on 11 September 2015. Since 30 October 2015, Mr.
Cheraghi has been held in administrative detention in accordance with section 189 (1) of
the Migration Act.
65.
The Working Group notes that Mr. Cheraghi was detained upon his arrival at
Christmas Island on 16 December 2012 by the Australian authorities, who held him in
detention until 22 May 2013, when he was granted a visa and released on the same day.
Some two years later, on 26 August 2015, he was arrested and charged with a criminal
offence. On 11 September 2015, his visa was cancelled and he has been in administrative
detention since 30 October 2015.
66.
The Working Group notes that the source has not argued that the arrest of Mr.
Cheraghi on 26 August 2015 may have been arbitrary. Rather, the source has argued that
the cancellation of his visa, which allegedly occurred on the basis of an adverse character
assessment due to his arrest, has resulted in Mr. Cheraghi being administratively detained
since 30 October 2015. The Government has not disputed the cancellation of the visa and
subsequent administrative detention of Mr. Cheraghi, noting that this has been carried out
strictly in accordance with the Migration Act. The Government has, however, failed to
provide any reasons for the cancellation of Mr. Cheraghi’s visa. The Working Group must
therefore accept that this has occurred on the basis of an adverse character assessment of
Mr. Cheraghi owing to him being charged with a criminal offence.
67.
The Working Group acknowledges that the detention of Mr. Cheraghi on 30 October
2015 appears to have been carried out in accordance with the provisions of the Migration
Act. However, as the Working Group has repeatedly stated in its jurisprudence, even when
the detention of a person is carried out in conformity with national legislation, the Working
Group must ensure that the detention is also consistent with the relevant provisions of
international law.2
68.
The Working Group wishes to reiterate that seeking asylum is not a criminal act; on
the contrary, seeking asylum is a universal human right, enshrined in article 14 of the
Universal Declaration of Human Rights, and in the 1951 Convention relating to the Status
of Refugees, and its 1967 Protocol.3 The Working Group notes that those instruments
constitute international legal obligations undertaken by Australia.
69.
In relation to Mr. Cheraghi, the Working Group observes that it is not disputed that
he has been in detention since 30 October 2015, a period of nearly three years. The
Working Group also observes that this is not detention exercised in pursuance of the
charges that have been brought against Mr. Cheraghi following his arrest on 26 August
2015, but rather administrative detention according to the provisions of the Migration Act.
70.
The Working Group refers to its revised deliberation No. 5 on deprivation of liberty
of migrants, whereby: “Any form of administrative detention or custody in the context of
migration must be applied as an exceptional measure of last resort, for the shortest period
and only if justified by a legitimate purpose, such as documenting entry and recording
claims or initial verification of identity if in doubt.”
71.
In the present case, the Government has not provided any explanation for the
continued detention of Mr. Cheraghi since 30 October 2015, aside from the fact that his
visa was cancelled on 11 September 2015. It is clear to the Working Group that his
administrative detention was not in pursuance of such legitimate aims as documenting an
entry or verification of identity. The Working Group also observes that Mr. Cheraghi has
not been convicted of any criminal offence and the Government has failed to provide any
other legitimate explanation for his continued detention for nearly three years.
2 See, for example, opinions No. 46/2011, No. 42/2012, No. 79/2017, No. 1/2018 and No. 20/2018.
3 See opinions No. 28/2017 and No. 42/2017 and revised deliberation No. 5 on deprivation of liberty of
migrants, para. 9.
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72.
In addition, the Working Group recalls that any detention in the context of migration
must be for the shortest period of time.4 In that respect, the Working Group observes that
the Government has failed to explain how that requirement was met in the case of Mr.
Cheraghi, who has been in detention for nearly three years.
73.
The Working Group therefore concludes that the detention of Mr. Cheraghi was
based purely on his earlier exercise of the legitimate right to seek asylum and is therefore
arbitrary, falling within category II.
74.
The source has further submitted that the detention of Mr. Cheraghi is arbitrary
within category IV since he is an asylum seeker who has been subjected to prolonged
administrative custody and has not been guaranteed the possibility of administrative or
judicial review or remedy. The Government of Australia denies such allegations, arguing
that a person in immigration detention is able to seek judicial review of the lawfulness of
his or her detention before the Federal Court or the High Court of Australia through such
actions as habeas corpus.
75.
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. That right, which in fact constitutes a peremptory norm of
international law, applies to all forms of deprivation of liberty and 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.5 It also
applies irrespective of the place of detention or the legal terminology used in the legislation,
and any form of deprivation of liberty on any ground must be subject to effective oversight
and control by the judiciary.6
76.
The Working Group observes that the facts of Mr. Cheraghi’s case since his
detention on 30 October 2015, as presented to it by both the source and the Government,
are characterized by various submissions by him to the courts, pursuing different visa
applications and challenging their rejection. However, none of those appearances have
concerned his need to remain in detention since the cancellation of his visa. Furthermore,
no judicial body has ever been involved in the assessment of the legality of Mr. Cheraghi’s
detention, noting that such consideration by a judicial body would necessarily involve the
assessment of the legitimacy, need and proportionality of such detention.7
77.
In other words, throughout his nearly three years of detention, Mr. Cheraghi 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. Cheraghi to remain in detention is the Case
Management and Detention Review Committee. However, as the Working Group has
already observed in another case, that is not a judicial body.8 Furthermore, the Working
Group observes the repeated failure on behalf of the Government of Australia to explain
how the reviews carried out by the Committee have satisfied the guarantees encapsulated in
the right to challenge the legality of detention enshrined in article 9 of the Covenant.9
78.
The Working Group also recalls the numerous findings by the Human Rights
Committee where 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.10 Furthermore, as the Working Group notes in its revised deliberation No. 5,
4 See revised deliberation No. 5, paras. 12 and 25.
5 See Basic Principles and Guidelines, para. 11 and guideline 1, para. 47 (a).
6 Ibid, para. 47 (b).
7 See revised deliberation No. 5, paras. 12 and 13.
8 See opinion No. 20/2018, para. 61.
9 Ibid.
10 See C. v. Australia; Baban et al. v. Australia (CCPR/C/78/D/1014/2001); D and E and their two
children v. Australia (CCPR/C/87/D/1050/2002); Bakhtiyari v. Australia (CCPR/C/79/D/1069/2002);
A/HRC/WGAD/2018/50
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detention in the migration setting must be exceptional and in order to ensure this,
alternatives to detention must be sought.11 In the case of Mr. Cheraghi, it is clear to the
Working Group that there was never any consideration of alternatives to detention, which is
a further breach of article 9 of the Covenant.
79.
The Working Group thus concludes that Mr. Cheraghi 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 within category IV.
80.
Furthermore, the source submits that the detention of Mr. Cheraghi falls within
category V, as Australian citizens and non-citizens are not equal before the courts and
tribunals of Australia owing to the effective result of the decision of the High Court in the
case of Al-Kateb v. Godwin. According to that decision, while Australian citizens can
challenge administrative detention, non-citizens cannot. The Government denies such
allegations, arguing that in the case cited the High Court held that the provisions of the
Migration Act requiring detention of non-citizens until they are removed, deported or
granted a visa, even if removal is not reasonably practicable in the foreseeable future, were
valid.
81.
The Working Group remains puzzled by this explanation from the Government,12 as
it only confirms that the High Court affirmed the legality of the detention of non-citizens
until they are removed, deported or granted a visa, even if removal is not reasonably
practicable in the foreseeable future. In other words, the Government has actually failed to
explain how such non-citizens can challenge their continued detention after that decision.
82.
The Working Group also remains surprised by the Government’s submission that
actions such as habeas corpus are a possible avenue of redress for Mr. Cheraghi.13 It is clear
to the Working Group that current Australian legislation does permit the detention of Mr.
Cheraghi and therefore the habeas corpus challenge, which is aimed at challenging illegal
detention, does not provide a realistic avenue of redress for people in his situation.
However, the Working Group once again recalls that merely 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.
83.
The Working Group notes the numerous findings by the Human Rights Committee,
as referred to in paragraph 78 above, and also notes that the effect of the decision of the
High Court of Australia in the above-mentioned case is such that non-citizens have no
effective remedy against their continued administrative detention.
84.
In that respect, the Working Group specifically notes the jurisprudence of the
Human Rights Committee in which it examined the implications of the High Court
judgment in the case of Al-Kateb v. Godwin and concluded that the effect of that judgment
was such that there was no effective remedy to challenge the legality of continued
administrative detention.14
85.
In the past, the Working Group has concurred with the views of the Human Rights
Committee on this matter and this remains the position of the Working Group in the present
case.15 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. Cheraghi
is arbitrary, falling within category V.
Shams et al. v. Australia (CCPR/C/90/D/1255,1256,1259, 1260,1266,1268,1270 and 1288/2004);
Shafiq v. Australia (CCPR/C/88/D/1324/2004); Nasir v. Australia (CCPR/C/116/D/2229/2012); and
F.J. et al. v. Australia (CCPR/C/116/D/2233/2013).
11 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; and A/HRC/30/36/Add.1, para. 81. See also opinions No.
72/2017 and No. 21/2018.
12 See opinion No. 21/2018, para. 79.
13 See opinion No. 20/2018, para. 64.
14 See F.J. et al. v. Australia, para. 9.3.
15 See opinions No. 28/2017, No. 42/2017, No. 71/2017, No. 20/2018 and No. 21/2018.
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12
86.
The Working Group observes that the present case is only the latest in a number of
cases from Australia that have come before the Working Group during the past two years
which have all concerned the same issue, namely the mandatory immigration detention in
Australia under the Migration Act.16 The Migration Act stipulates that an unlawful non-
citizen must be detained and kept in immigration detention until they are removed from
Australia or granted a visa. In addition, section 196 (3) of the Act provides that “To avoid
doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from
detention (otherwise than as referred to in paragraph (1) (a), (aa) or (b)) unless the non-
citizen has been granted a visa.” As such, providing there is some sort of process relating to
the grant of a visa or removal (even if removal is not reasonably practicable in the
foreseeable future), the detention of an unlawful non-citizen is permitted under Australian
law.
87.
The Working Group wishes to emphasize that deprivation of liberty in the
immigration context must be a measure of last resort and alternatives to detention must be
sought in order to meet the requirement of proportionality.17 Furthermore, as the Human
Rights Committee has argued in its general comment No. 35 (2014) on liberty and security
of person: “Asylum seekers who unlawfully enter a State party’s territory may be detained
for a brief initial period in order to document their entry, record their claims and determine
their identity if it is in doubt. To detain them further while their claims are being resolved
would be arbitrary in the absence of a particular reason specific to the individual, such as an
individualized likelihood of absconding, a danger of crimes against others or a risk of acts
against national security.”
88.
The provisions of the Migration Act are at odds with those requirements of
international law, as sections 189 (1) and 189 (3) of the Act provide for de facto mandatory
detention of all unlawful non-citizens, unless they are being removed from the country or
granted a visa. Furthermore, the Working Group observes that the Act does not reflect the
principle of exceptionality of detention in the context of migration as recognized in
international law, nor does it provide for alternatives to detention to meet the requirement
of proportionality.18
89.
The Working Group is seriously concerned at the increasing number of cases
emanating from Australia that are being brought to its attention concerning the
implementation of the Migration Act and it urges the Government of Australia to review
this legislation in the light of its obligations under international law without delay, while
paying due attention to the opinions of the Working Group.19
90.
On 7 August 2017, the Working Group sent a request to the Government of
Australia to undertake a country visit. The Working Group notes the encouraging response
received on 24 November 2017 in which the Government indicates that it would be in a
position to invite the Working Group to conduct a visit in the first quarter of 2019.
91.
The Working Group reiterates that it would welcome the opportunity to conduct a
visit to Australia and its offshore detention facilities in order to engage with the
Government in a constructive manner and to offer its assistance in addressing its serious
concerns relating to instances of arbitrary deprivation of liberty. The Working Group looks
forward to discussing concrete dates for such a visit to be carried out in 2019.
Disposition
92.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Edris Cheraghi, being in contravention of articles 2, 3,
7, 8, 9 of the Universal Declaration of Human Rights and of articles 2, 9, 16 and 26
of the International Covenant on Civil and Political Rights, is arbitrary and falls
within categories II, IV and V.
16 Ibid.
17 See A/HRC/10/21, para. 67. See also revised deliberation No. 5, paras. 12 and 16.
18 Ibid.
19 See opinions No. 28/2017, No. 42/2017, No. 71/2017, No. 20/2018 and No. 21/2018.
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13
93.
The Working Group requests the Government of Australia to take the steps
necessary to remedy the situation of Mr. Cheraghi 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.
94.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Cheraghi immediately and accord him
an enforceable right to compensation and other reparations, in accordance with
international law.
95.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Cheraghi and to take appropriate measures against those responsible for the violation of his
rights.
96.
In order to ensure the non-repetition of the violations presented in its opinions, the
Working Group requests the Government to urgently review the Migration Act 1958 in the
light of its obligations under international law.20
97.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
98.
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. Cheraghi has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Cheraghi;
(c)
Whether an investigation has been conducted into the violation of Mr.
Cheraghi’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.
99.
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
whether further technical assistance is required, for example, through a visit by the
Working Group.
100.
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.
101.
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.21
[Adopted on 22 August 2018]
20 Ibid.
21 See Human Rights Council resolution 33/30, paras. 3 and 7.