A/HRC/WGAD/2020/35

GE.20-13081(E)

*2013081*

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-seventh session, 27 April–1 May 2020

Opinion No. 35/2020 concerning Jamal Talib Abdulhussein

(Australia)*, **

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. 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 42/22.

2.

In accordance with its methods of work (A/HRC/36/38), on 24 October 2019 the

Working Group transmitted to the Government of Australia a communication concerning

Jamal Talib Abdulhussein. The Government replied to the communication on 24 December

2019. 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,

* 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.

** The partially dissenting opinion of José Guevara Bermúdez and Seong-Phil Hong is contained in the

annex to the present opinion.

United Nations

A/HRC/WGAD/2020/35

General Assembly

Distr.: General

6 October 2020

Original: English

A/HRC/WGAD/2020/35

2

religion, economic condition, political or other opinion, gender, sexual orientation,

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.

Jamal Talib Abdulhussein, born in 1958, is an Iraqi national. On 15 December 2012,

Mr. Abdulhussein was detained on Christmas Island. Mr. Abdulhussein came to Australia

by boat to seek asylum, accompanied by his two minor children. The authorities from the

Department of Home Affairs, which carried out the arrest, showed a detention notification.

5.

The reason for the arrest, provided by the Australian authorities, was the Migration

Act 1958, which states in its section 189 (1) and section 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. As an “unlawful non-citizen”, Mr. Abdulhussein was

automatically detained and placed in administrative detention.

6.

The source specifies that Mr. Abdulhussein had already been the subject of

administrative detention between 11 December 1999 and May 2000. On 11 December

1999, Mr. Abdulhussein arrived by boat in Darwin, seeking asylum from persecuting forces

in Iraq, and was subsequently detained at Curtain Detention Centre. On 24 May 2000, Mr.

Abdulhussein was granted asylum and a temporary protection visa. In 2000, Mr.

Abdulhussein worked as a security guard during the Olympic Games. Between 2002 and

2003, he applied for his family to come to Australia.

7.

In January 2003, Mr. Abdulhussein was charged with three counts of having a false

instrument relating to an intent to use fraudulently obtained credit cards. He was sentenced

to 12 months of imprisonment and lodged a severity appeal. In August 2003, Mr.

Abdulhussein was charged with common assault, driving with high blood alcohol, driving

with a licence that had expired less than two years ago, and breaking and entering a

building. In October 2003, he was convicted in absentia for these offences.

8.

On 20 November 2003, while on bail, Mr. Abdulhussein left Australia and returned

to Iraq using a friend’s passport. On 30 November 2003, he arrived in Iraq. Reportedly, Mr.

Abdulhussein left Australia as he missed his family and considered it safe to return home to

care for them. On his arrival back in Iraq, Mr. Abdulhussein discovered that his spouse had

divorced him in his absence. Mr. Abdulhussein later remarried.

9.

In May 2009, Mr. Abdulhussein and one of his children from his first marriage were

assaulted and kidnapped in Iraq. Mr. Abdulhussein then fled to Turkey with his five

children, where on 20 July 2009 the Office of the United Nations High Commissioner for

Refugees (UNHCR) found them to be refugees. The source understands that in late 2009,

the United States of America offered to resettle the family. Given, however, that the mother

of the older children had separately and previously been resettled in Australia as a refugee,

the older children asked Mr. Abdulhussein to wait for Australia to accept them. As such,

the source informs the Working Group that UNHCR applied to Australia to take the family.

10.

In 2012, Mr. Abdulhussein decided that they had waited long enough for a response

from Australia. In the interim, the children from the first marriage were granted asylum in

Australia and were flown there. On 14 December 2012, Mr. Abdulhussein arrived in

Australia with his two youngest children. On this occasion, he used his own Iraqi passport.

On 15 December 2012, Mr. Abdulhussein and his two children were detained on Christmas

Island.

11.

The source further reports that on 23 July 2015, following an incident in

immigration detention, Mr. Abdulhussein’s youngest children were transferred to

community detention, to a care home, where they remain to date. Mr. Abdulhussein

remains in closed detention.

12.

Moreover, on 18 August 2015, Mr. Abdulhussein’s criminal sentence was varied to

reflect that he had served a custodial sentence from 15 August 2014 until 14 August 2015

while in immigration detention. Reportedly, this means that the time that he has spent in

administrative detention has been taken into account by the court to satisfy his prison

A/HRC/WGAD/2020/35

3

sentence. As such, if and when he is released from detention, he will not be arrested and

taken to prison.

13.

On 14 June 2016, the Minister for Home Affairs invited the family to apply for

protection visas. Consequently, on 13 October 2016, Mr. Abdulhussein lodged a protection

visa application, with his minor children listed as dependants. On 22 March 2017, the

family’s protection visa application was refused by the Department of Home Affairs and

was automatically referred to the Immigration Assessment Authority.

14.

On 13 April 2017, submissions were made to the Immigration Assessment Authority

on behalf of the family. On 10 May 2017, this authority found that Mr. Abdulhussein and

his children were owed protection obligations, and remitted the decision to the Department

of Home Affairs. On 21 June 2017, the Department of Home Affairs issued Mr.

Abdulhussein with a notice of intention to consider visa refusal. Mr. Abdulhussein made

submissions in response to this notice on 14 August 2017.

15.

On 19 December 2017, Mr. Abdulhussein’s children were granted temporary

protection visas, and on 7 March 2018, the Department of Home Affairs issued Mr.

Abdulhussein with a request for further information regarding the notice. Submissions were

made in response to this request on 3 April 2018. On 13 July 2018, the Department

provided Mr. Abdulhussein with a temporary protection renewal notification for his

children, as their visas are due to expire at the end of 2020.

16.

Furthermore, reportedly, on 31 August 2018, the Department of Home Affairs

rejected Mr. Abdulhussein’s visa application, which he appealed to the Administrative

Appeals Tribunal. On 23 November 2018, the Tribunal found in favour of Mr.

Abdulhussein and remitted the matter back to the Department. On 1 March 2019, the

Department issued Mr. Abdulhussein with a notice of intention to refuse his visa

application. On 25 March 2019, submissions were made in response to that notice of

intention.

17.

On 19 June 2019, Mr. Abdulhussein filed a claim in the Federal Court for

unreasonable delay by the Department in making a decision on his visa application. On 12

July 2019, the Minister personally set aside the decision of the Administrative Appeals

Tribunal and refused to grant Mr. Abdulhussein a visa. Mr. Abdulhussein has appealed to

the Federal Court. The Federal Court hearing date regarding Mr. Abdulhussein’s visa

rejection was set for 30 September 2019 and then postponed until 19 November 2019.

18.

The most recent decision of the Minister to personally deny Mr. Abdulhussein a visa

by setting aside the Administrative Appeals Tribunal’s decision is based on the Minister’s

assessment that Mr. Abdulhussein does not pass the character test and that granting him a

visa is not in the national interest. The source notes that in discussing Mr. Abdulhussein’s

behaviour, the Minister referred to Mr. Abdulhussein’s engagement with people smugglers.

According to the source, this suggests that the Minister believes there are similarities

between seeking asylum and criminal behaviour.

19.

The source concludes that Mr. Abdulhussein has been found to be owed protection

obligations and be a refugee four times, including three times by Australian institutions. It

notes that the detention of Mr. Abdulhussein amounted to over six years.

20.

The source submits that given the decision of the High Court of Australia which

upheld the view that mandatory detention of non-citizens was not contrary to the

Constitution of Australia,1 Mr. Abdulhussein lacks any chance of his detention being the

subject of real judicial review. The source further notes that the Human Rights Committee

has determined that there is no effective remedy or people subject to mandatory detention

in Australia.2

21.

The source further submits that Mr. Abdulhussein 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. It also notes that the detention does not meet international norms relating

to the right to a fair trial, given that Mr. Abdulhussein is not being criminally detained, and

1 Al-Kateb v. Godwin, Commonwealth Law Reports, vol. 219 (2004), p. 562; case also available at

https://jade.io/article/68483?at.hl=al-kateb.

2 C. v. Australia (CCPR/C/76/D/900/1999).

A/HRC/WGAD/2020/35

4

the Minister had been given direction by both the Administrative Appeals Tribunal and the

Immigration Assessment Authority that Mr. Abdulhussein meets the criteria for the

granting of a visa.

22.

Moreover, the source submits that Mr. Abdulhussein, as an asylum seeker who is

being subjected to administrative custody, has not been guaranteed the possibility of

administrative or judicial review or remedy.

23.

Furthermore, it is submitted that the Minister has stated Mr. Abdulhussein will not

be allowed to make another visa application unless the refusal decision is set aside or Mr.

Abdulhussein is invited by the Minister to apply for a Bridging R (Class WR) visa under

subsection 501E (2) of the Act. The source regards this as unlikely. The source states that

the Minister also noted that the refusal decision could not be reviewed by the

Administrative Appeals Tribunal, as the review decision had been made by the Minister

personally.

24.

The source informs the Working Group that the Minister has issued instructions to

the Department of Home Affairs that all controversial cases, such as that of Mr.

Abdulhussein, are to be referred to him for decision. The source submits that it is very

unlikely that the Minister has asked for these cases to be referred to him for these people to

be considered for release. This, according to the source, raises questions regarding actual or

perceived biases and procedural fairness. The source notes that a freedom of information

request for the instruction has been made and the response is still pending.

25.

According to the source, Australian citizens and non-citizens are not equal before

the courts and tribunals of Australia. The decision of the High Court of Australia in Al-

Kateb v. Godwin stands for the proposition that the detention of non-citizens pursuant to,

inter alia, section 189 of the Migration Act does not contravene the Constitution of

Australia. The effective result of this decision is that while Australian citizens can

challenge administrative detention, non-citizens cannot.

26.

The source further notes that while Mr. Abdulhussein has not exhausted all domestic

remedies, even if he is successful in the Federal Court, the decision to grant him a visa will

be remitted to the Department of Home Affairs and/or the Minister. Given that the

Department and Minister have refused Mr. Abdulhussein’s visa application three times, the

source considers it unlikely that Mr. Abdulhussein will be granted a visa. As such, he will

likely remain in indefinite detention. The source again emphasizes that section 196 (3) of

the Migration Act specifically provides that “even a court” cannot release an unlawful non-

citizen unless the person has been granted a visa.

27.

The source concludes that the detention of Mr. Abdulhussein falls under categories

I, II, III, IV and V of the Working Group.

Response from the Government

28.

On 24 October 2019, 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 23 December 2019, detailed information about the

current situation of Mr. Abdulhussein, and to clarify the legal provisions justifying his

continued detention, as well as the compatibility of his detention with the obligations of

Australia under international human rights law, particularly with regard to the treaties

ratified by the State. Moreover, the Working Group called upon the Government of

Australia to ensure the physical and mental integrity of Mr. Abdulhussein.

29.

On 9 December 2019, the Government requested an extension in accordance with

paragraph 16 of the Working Group’s methods of work, which was granted, with the new

deadline being set for 23 January 2020.

30.

The Government submitted its reply on 24 December 2019, in which it argues that

the Government, through the Department of Home Affairs, is considering Mr.

Abdulhussein’s case in accordance with the ministerial intervention guidelines made for the

purposes of section 195A of the Migration Act 1958. Section 195A of that Act enables the

Minister to grant a visa to a person in immigration detention, if the Minister considers that

it is in the public interest to do so. In addition, section 197AB of the Act provides the

Minister with the power to make a residence determination in respect of a person in

immigration detention, allowing him or her to reside in the community at a specified place

A/HRC/WGAD/2020/35

5

and under specified conditions, if the Minister considers that it is in the public interest to do

so.

31.

The Government explains that in Mr. Abdulhussein’s circumstances, he can only be

granted a visa or placed into the community by a Minister exercising his or her personal

intervention powers. The Minister’s powers are non-compellable, meaning that the Minister

is under no obligation to exercise or to consider exercising these powers. What is in the

public interest is a matter for the Minister to determine. If Mr. Abdulhussein’s case is found

to meet the guidelines for referral, it will be referred to the Minister for consideration.

32.

On 26 November 2019, the Federal Court set aside the Minister’s 12 July 2019

decision to set aside the Administrative Appeals Tribunal decision and refuse to grant Mr.

Abdulhussein a temporary (subclass 785) protection visa under section 501A of the

Migration Act. As a result, the Administrative Appeals Tribunal’s decision stands and Mr.

Abdulhussein’s application for a temporary protection visa has been remitted to the

Department for reconsideration, which remains ongoing. Mr. Abdulhussein remains in

immigration detention as an unlawful non-citizen without a valid visa.

33.

On 11 October 1999, Mr. Abdulhussein first arrived in Australia as an unauthorized

maritime arrival, using the alias Jamal Al Ghariri. He was detained under section 189 of the

Act and transferred to an immigration detention centre. On 24 May 2000, he was granted a

temporary protection visa and released from immigration detention. On 26 May 2000, he

lodged an application for a protection visa (subclass 866).

34.

On 7 January 2003, Mr. Abdulhussein was charged with fraud-related offences. On

22 May 2003, he was convicted on three counts of having a false instrument with the intent

to use, and was sentenced to 12 months’ imprisonment. On 16 May 2003, Mr.

Abdulhussein’s temporary protection visa expired, and on the same day his Bridging A

(subclass 010) visa, granted in association with his protection visa application, came into

effect.

35.

Mr. Abdulhussein departed Australia in 2004, using a friend’s New Zealand

passport. The Government understands that around this time, the New South Wales police

had issued warrants for his arrest in relation to further offences alleged to have been

committed by Mr. Abdulhussein.

36.

On 16 March 2005, Mr. Abdulhussein was found not to engage the protection

obligations of Australia and a delegate of the Minister refused to grant him a protection visa.

On 15 December 2012, Mr. Abdulhussein arrived in Australia again as an unauthorized

maritime arrival with two of his sons, using the alias Jamal Talib Abdul Hussein Al Ghariri.

He was detained under section 189 (3) of the Migration Act and transferred to an

immigration detention centre. On 10 January 2013, during an entry interview, he stated that

he had lived in Australia for four years from 10 November 1999. A fingerprint analysis

confirmed Mr. Al Ghariri to be Mr. Abdulhussein.

37.

In February 2015, Mr. Abdulhussein’s case was referred to the then Minister for

consideration under section 197AB of the Act. The submission included his two children.

On 16 February 2015, the then Minister chose not to consider the case under section 197AB

of the Act.

38.

On 30 June 2015, Mr. Abdulhussein requested voluntary removal for himself and his

two sons. On 15 July 2015, Mr. Abdulhussein withdrew his request. On 14 August 2015,

Mr. Abdulhussein was taken from immigration detention into criminal custody in relation

to the outstanding warrants for his arrest from his first period of time in Australia. On 21

August 2015, he was located at Fairfield Police Station, bailed, detained under section 189

(1) of the Act and transferred to an immigration detention centre.

39.

On 27 August 2015, Mr. Abdulhussein was convicted of offences including

common assault, breaking and entering a building, destroying or damaging property (three

counts), failure to appear in accordance with a bail undertaking, and driving-related

offences for which he was fined and disqualified from driving and had an 18-month good

behaviour bond imposed on him.

40.

On 29 September 2015, the Minister lifted the bar under section 46A of the

Migration Act to allow Mr. Abdulhussein and his family to make a valid application for a

visa. Section 46A is a statutory bar which precludes an unauthorized maritime arrival who

A/HRC/WGAD/2020/35

6

is either an unlawful non-citizen or the holder of a bridging visa or temporary protection

visa from making a valid visa application.

41.

On 1 July 2016, Mr. Abdulhussein withdrew his request for voluntary removal for

himself and his sons. On 13 October 2016, he lodged an application for a temporary

protection visa, with his two sons listed as dependant applicants.

42.

On 22 March 2017, Mr. Abdulhussein was found not to engage the protection

obligations of Australia and a delegate of the then Minister refused to grant Mr.

Abdulhussein and his two children temporary protection visas. On 10 May 2017, following

a review, the Immigration Assessment Authority remitted the application to the Department

with a direction that there were substantial grounds for believing that if removed, the family

would be subject to a real risk of harm upon their return to Iraq.

43.

On 22 June 2017, Mr. Abdulhussein was issued a Notice of Intention to Consider

Refusal of his temporary protection visa, under section 501 of the Migration Act. Mr.

Abdulhussein responded to the notice on 14 August 2017. On 22 August 2017, Mr.

Abdulhussein again requested voluntary removal for himself and his sons. The Department

began progressing their voluntary removal.

44.

On 19 December 2017, Mr. Abdulhussein’s children were granted temporary

protection visas. On 31 August 2018, a delegate of the Minister refused to grant Mr.

Abdulhussein a temporary protection visa under section 501 (1) of the Migration Act, on

the basis of his substantial criminal record.

45.

On 9 October 2018, Mr. Abdulhussein sought a merits review of the refusal decision,

at the Administrative Appeals Tribunal. On 23 November 2018, the Administrative Appeals

Tribunal set aside the delegate’s decision, remitting the matter back to the Department for

reconsideration with a direction that discretionary factors be exercised in the applicant’s

favour so that he would be granted a visa.

46.

On 14 February 2019, Mr. Abdulhussein’s case was included on a submission

referred to the Assistant Minister, on which it was noted that an indication was being

sought from Mr. Abdulhussein as to whether he would like to consider ministerial

intervention options. On 26 February 2019, the Assistant Minister indicated that Mr.

Abdulhussein’s case should not be referred for consideration under the ministerial

intervention powers.

47.

On 1 March 2019, Mr. Abdulhussein was issued with a Notice of Intention to

Consider Refusal in connection with the considered exercise of the Minister’s personal

power under section 501A (2) of the Act. The Minister’s personal power under section

501A of the Act to set aside an Administrative Appeals Tribunal decision and refuse a visa

in the national interest is non-delegable. Such decisions can only be made by the Minister.

48.

On 28 March 2019, the Department received a response to the Notice of Intention to

Consider Refusal. On 12 July 2019, the Minister decided to set aside the Administrative

Appeals Tribunal’s decision and refuse Mr. Abdulhussein a temporary protection visa

under section 501A (2) of the Act.

49.

On 17 July 2019, the Department initiated a further assessment of Mr.

Abdulhussein’s case under the ministerial intervention guidelines relating to section 195A

of the Migration Act. The assessment is in progress.

50.

Mr. Abdulhussein’s health and welfare are monitored by International Health and

Medical Services (IHMS) General Practitioners and Psychiatrists. IHMS continue to

support Mr. Abdulhussein with his physical and mental health care. All detainees are made

aware of the health referral system.

51.

The Government explains that Australia’s universal visa system requires all non-

citizens to hold a valid visa. The immigration detention legislative framework provides that

under the Migration Act, an unlawful non-citizen must be detained where it is known or

reasonably suspected that an individual is an unlawful non-citizen. An unlawful non-citizen

must remain in immigration detention until removed from Australia or granted a visa.

52.

In order to be granted a visa, all visa applicants must meet certain criteria, including

the character requirements under section 501 of the Migration Act. Section 501 allows the

Minister, or a delegate, to refuse to grant a visa to a non-citizen where the non-citizen does

A/HRC/WGAD/2020/35

7

not satisfy the Minister that they pass the character test; or to cancel a visa where the

Minister reasonably suspects that the person does not pass the character test and the person

is not able to satisfy the Minister that they do. There are a number of grounds on which a

person may not pass the character test, including, but not limited to, where there is a risk

that the non-citizen would engage in criminal conduct in Australia or represent a danger to

the Australian community or a segment of it.

53.

When a decision is made either to refuse to grant or to cancel a visa, all relevant

information and circumstances relating to the case, including the impact on the individual,

are taken into account. However, the safety of the Australian public remains the primary

consideration and a decision to refuse to grant or to cancel a visa may be made because a

non-citizen represents a danger to the community, even where there are countervailing

factors. Cases under consideration for character are allocated to a decision maker according

to the seriousness and nature of adverse conduct.

54.

The Minister has the personal power, under section 501A of the Migration Act, to

set aside a decision of the Administrative Appeals Tribunal and to substitute it with a

decision to refuse to grant or to cancel a visa, if the person does not satisfy the Minister that

the person passes the character test and the Minister is satisfied that the decision is in the

national interest. The Department may refer cases to the Minister where the Administrative

Appeals Tribunal has set aside decisions made under section 501 of the Act, to ascertain

whether the Minister wishes to consider exercising his or her personal powers to set aside

the Administrative Appeals Tribunal’s decision under section 501A of the Act.

55.

The position of the Government of Australia is that the detention of an individual on

the basis that they are an unlawful non-citizen is neither unlawful nor arbitrary per se under

international law. Continuing detention may become arbitrary after a certain period of time

without proper justification. The determining factor, however, is not the length of detention,

but whether the grounds for the detention are justifiable. Detention in an immigration

detention centre is a last resort for the management of unlawful non-citizens.

56.

The Government argues that the immigration detention is administrative and not

punitive in nature. It reiterates its commitment to ensuring that all detainees are treated in a

manner consistent with the international legal obligations of Australia. Mr. Abdulhussein’s

immigration detention is due to his being an unlawful non-citizen without a valid visa, and

not by reason of his intention to seek protection in accordance with the international

obligations of Australia.

57.

In relation to review mechanisms, the Government notes that in accordance with

section 486N of the Migration Act, the Commonwealth Ombudsman is provided with a

report relating to the circumstances of a person’s detention, for every person who has been

in administrative immigration detention for more than two years, and every six months

thereafter. The Ombudsman will, as required, report to the Minister, providing an

assessment of the appropriateness of the arrangements for the detention of the person.

58.

Accordingly, the Government consults with relevant stakeholders on a regular basis

to review Mr. Abdulhussein’s placement and detention. Mr. Abdulhussein’s detention has

been reviewed 71 times by Case Management and Detention Review Committee meetings

within the Department of Home Affairs. The first review was conducted on 20 February

2013 and the most recent review was conducted on 14 November 2019. Each review to date

has found that Mr. Abdulhussein’s detention continues to be appropriate and his current

placement continues to be suitable, noting that only a Minister has the power to grant a visa

to Mr. Abdulhussein or to place him into the community, and that this has not occurred in

his case. There is currently a referral for ministerial intervention for Mr. Abdulhussein,

however his case will be considered against guidelines for referral.

59.

A person in immigration detention is able to seek judicial review of the lawfulness

of his or her detention before the Federal Court of Australia or the High Court of Australia.

Paragraph 75 (v) of the Constitution of Australia provides that the High Court has original

jurisdiction in relation to every matter where a writ of mandamus, prohibition or injunction

is sought against an officer of the Commonwealth of Australia. Subsection 39B (1) of the

Judiciary Act 1901 grants the Federal Court the same jurisdiction as the High Court under

paragraph 75 (v) of the Constitution. It is these provisions that constitute the legal

mechanism through which a non-citizen may challenge the lawfulness of their detention,

that is, challenge the legal application of section 189 of the Migration Act. This right to

A/HRC/WGAD/2020/35

8

seek a remedy against an officer of the Commonwealth of Australia under the Constitution

or in the Federal Court is available to Australian citizens and non-citizens alike.

60.

The Government further notes that the decision in Al-Kateb does not alter a non-

citizen’s ability to challenge the lawfulness of their detention under Australian law. The

right to seek a remedy against an officer of the Commonwealth of Australia under the

Constitution is still available to non-citizens.

61.

Australia’s universal visa system involves a binary system of lawful and unlawful

non-citizens. In order to be a “lawful non-citizen”, a non-citizen must hold a valid visa. A

non-citizen in Australia who does not hold a visa that is in effect is an unlawful non-citizen

(see sections 13 and 14 of the Migration Act). Subsection 189 (1) of the Act obliges officers

to detain a person that they know or reasonably suspect is an unlawful non-citizen.

62.

Nothing in the Migration Act, including its section 196 (3), prevents the court from

determining and enforcing the limitation in section 189 (1).3 It is thus open to immigration

detainees to approach the court to challenge their detention on the basis that the requisite

knowledge or reasonable suspicion does not exist. That can be on the basis that the person

concerned in fact holds a visa that is in effect and is a lawful non-citizen, or is an Australian

citizen and not a non-citizen at all. If the court agrees, it can order that a person be released

from immigration detention. Subsection 196 (3) does not prevent this, because the person in

question is necessarily either a lawful non-citizen or not a non-citizen at all.

63.

This right to approach the court is guaranteed under section 75 of the Constitution.

The section similarly guarantees judicial review rights in relation to all visa decisions under

the Migration Act. The Government submits that contrary to the source’s submissions, Mr.

Abdulhussein is guaranteed the possibility of judicial review.

64.

Furthermore, the Government states that Mr. Abdulhussein is able to seek and has

sought merits and judicial reviews of the migration decisions made in respect of him. The

Immigration Assessment Authority and the Administrative Appeals Tribunal both reviewed

decisions to refuse to grant Mr. Abdulhussein a temporary protection visa, on two separate

occasions (10 May 2017 and 23 November 2018 respectively). On 13 June 2019, Mr.

Abdulhussein commenced a judicial review with the Federal Court. On 26 November 2019,

the Federal Court set aside the Minister’s decision of 12 July 2019.

65.

The Government notes that, according to the source, Mr. Abdulhussein 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. It nevertheless states that Mr. Abdulhussein is

being detained as required under section 189 of the Migration Act as he is an unlawful non-

citizen. It is the Government’s view that Mr. Abdulhussein is being detained as a

consequence of the operation of the domestic laws of Australia, not as a consequence of

seeking protection in accordance with the country’s international obligations.

66.

The Government notes that the object of the Migration Act is to “regulate, in the

national interest, the coming into, and presence in, Australia of non-citizens”. The purpose

of the Act is to differentiate on the basis of nationality between non-citizens and citizens.

The Human Rights Committee has recognized in the context of the International Covenant

on Civil and Political Rights that: “The Covenant does not recognize the right of aliens to

enter or reside in the territory of a State party. It is in principle a matter for the State to

decide who it will admit to its territory. However, in certain circumstances an alien may

enjoy the protection of the Covenant even in relation to entry or residence, for example,

when considerations of non-discrimination, prohibition of inhuman treatment and respect

for family life arise. Consent for entry may be given subject to conditions relating, for

example, to movement, residence and employment.” (See the Committee’s general

comment No. 15 (1986) on the position of aliens under the Covenant).

67.

The Government underlines its prerogative to determine who may enter its territory

and under what conditions, including by requiring that a non-citizen hold a visa; in

circumstances where a visa is not held, a non-citizen is subject to immigration detention.

Thus, to the extent that there is differential treatment of citizens and non-citizens in that

citizens are not subject to immigration detention, the Government’s view is that this

3 Plaintiff SI 64/2018 v. Minister for Home Affairs (2018), High Court of Australia transcript 172.

A/HRC/WGAD/2020/35

9

differential treatment is based on reasonable and objective criteria for a legitimate purpose

and therefore does not amount to prohibited discrimination under the International

Covenant on Civil and Political Rights.

Reply from the source

68.

The reply of the Government was transmitted to the source on 2 January 2020 for

further comments, which the source submitted on 6 January 2020. In its reply, the source

notes that the Government does not accurately interpret the law regarding the remittal of Mr.

Abdulhussein’s case from the Federal Court to the Department of Home Affairs, for the

latter to remake the decision according to law. While the response of the Government of

Australia notes that the relevant ministers can remake the decision, it is also permissible for

a delegate to make a decision. The result of the Federal Court matter is that the

Administrative Appeals Tribunal decision is re-enlivened. It is therefore possible for a

delegate of the ministers to make a decision.

69.

The source argues that if a delegate is to make such a decision, then under the

Migration Act, Mr. Abdulhussein must be granted a visa. It is only ministers who can

refuse to grant Mr. Abdulhussein a visa. The source thus claims that the fact that the

government response does not appear to consider this delegation implies either a

misunderstanding of law or a bias. The source concludes that, either way, the basis for

potential court action is formed.

70.

The source further notes that the government response claims that the Department is

considering Mr. Abdulhussein’s case against the ministerial guidelines for the purposes of

sections 195A and 195AB of the Migration Act. This implies that there is some action

taking place in the processing of Mr. Abdulhussein’s protection visa application. The

source states that this is misleading. Mr. Abdulhussein’s visa application is not before the

ministers, instead it is with the Department for assessment against guidelines to potentially

send to the ministers for consideration.

71.

The source submits that it is inaccurate to suggest that, after having refused Mr.

Abdulhussein a visa multiple times, the Department will now assess whether Mr.

Abdulhussein meets the guidelines for referral to the ministers, and that the ministers will

then decide to grant Mr. Abdulhussein a visa. This is all the more so considering that such

referral occurred only five days after the Minister set aside the tribunal decision, and no

action has been taken to date – more than seven months after the initial referral.

72.

The source argues that this appears to be merely a tactic used by the Department to

give the impression that it remains engaged with Mr. Abdulhussein’s matter, instead of

pursuing a constructive refoulement approach by ensuring that Mr. Abdulhussein remains

in detention or “agrees” to return to Iraq.

73.

The source also states that the Government’s assertion that detention in an

immigration detention centre is a last resort for the management of unlawful non-citizens is

not correct. The source claims that detention is the first resort for unlawful non-citizens.

Under section 189 of the Migration Act, unlawful non-citizens must be detained.

74.

The source also refers to the governmental response in relation to detention review

mechanisms. The source submits that these mechanisms operate within the legal framework

of Australia which permits arbitrary detention.

75.

Furthermore, the source notes the Government’s claim that the Commonwealth

Ombudsman has no power to compel the Department to release a person from immigration

detention. The source states that indeed, the Department has consistently failed to act on

recommendations of the Ombudsman to release individual asylum seekers and refugees

from detention.

76.

The source claims that the Al-Kateb case reinforces the position of Mr.

Abdulhussein: his arbitrary open-ended detention is authorized by law, through both

legislation and the case law. The source further notes that the review mechanisms available

to Mr. Abdulhussein relate to the decision-making process concerning granting of a visa,

rather than to Mr. Abdulhussein’s detention. Finally, the source submits that but for coming

to Australia to seek asylum, Mr. Abdulhussein would not be an unlawful non-citizen and

would not be liable for detention.

A/HRC/WGAD/2020/35

10

Discussion

77.

The Working Group thanks the Government and the source for their timely

submissions. The Working Group recalls that in determining whether Mr. Abdulhussein’s

detention is arbitrary, the Working Group has regard to the principles established in its

jurisprudence to deal with evidentiary issues. If the source has presented a prima facie case

for breach of international requirements constituting arbitrary detention, the burden of proof

should be understood to rest upon the Government if it wishes to refute the allegations.

Mere assertions by the Government that lawful procedures have been followed are not

sufficient to rebut the source’s allegations (A/HRC/19/57, para. 68).

78.

Noting that the source has submitted that the detention of Mr. Abdulhussein falls

under categories I, II, III, IV and V, allegations denied by the Government, the Working

Group shall proceed to examine the submissions under each of the categories, in turn.

79.

Before proceeding, the Working Group wishes to make an initial observation that

many of the submissions made discuss whether the decisions concerning Mr.

Abdulhussein’s applications for asylum were well founded and whether the decisions of the

Minister for Home Affairs not to release Mr. Abdulhussein were justified. The Working

Group recalls that its mandate does not cover the substantive issue of whether Mr.

Abdulhussein should be granted asylum or refugee status.4 Equally, the question of whether

the Minister for Home Affairs has acted within his powers or not is first and foremost one

for the domestic courts to consider. The Working Group reiterates that it has consistently

refrained from taking the place of national judicial authorities or acting as a kind of

supranational tribunal, when it is urged to review the application of domestic law by the

judiciary5 or other domestic bodies.

80.

As the Working Group has previously stated, a deprivation of liberty falls under

category I as lacking a legal basis not only if there is no law authorizing such deprivation of

liberty but also if the authorities fail to invoke such legal basis through, for example, an

arrest warrant or a detention notice.6 It is not disputed that Mr. Abdulhussein was detained

on 15 December 2012 following his arrival on Christmas Island. It is also not disputed that

the Migration Act 1958 was the legal basis for his detention and that authorities from the

Department of Home Affairs, which carried out the arrest, showed a detention notification.

81.

Notwithstanding the serious reservations that the Working Group has about the

Migration Act 1958, it cannot find that the detention of Mr. Abdulhussein was not carried

out in accordance with this Act, and therefore is unable to find that detention falls under

category I.

82.

Turning to the submission that the detention of Mr. Abdulhussein falls under

category II, the Working Group notes that the source claims that Mr. Abdulhussein was

detained due to his migratory status, a claim which is not denied by the Government.

83.

However, the Working Group must observe that Mr. Abdulhussein had previously

legally lived in Australia and had a valid visa until he fled the jurisdiction. When he

attempted to re-enter Australia in December 2012, he was travelling under an alias and his

true identity was not established until the entry interview on 10 January 2013. It is only

from that time that the authorities were able to establish a number of outstanding claims in

relation to Mr. Abdulhussein, including outstanding prison sentences.

84.

The Working Group has always maintained that seeking asylum is not a criminal act

but a universal human right, enshrined in article 14 of the Universal Declaration of Human

Rights, and in the Convention relating to the Status of Refugees, of 1951, and its 1967

Protocol. The Working Group notes that these instruments constitute international legal

obligations that Australia has undertaken.7

85.

As the Working Group stated in its revised deliberation No. 5:

4 Opinion No. 74/2017, para. 56.

5 Opinions Nos. 40/2005, 15/2017, 16/2017, 30/2017, 58/2017 and 49/2019.

6 Opinions Nos. 46/2017, 66/2017, 75/2017, 35/2018 and 79/2018.

7 Opinions Nos. 28/2017 and 42/2017.

A/HRC/WGAD/2020/35

11

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.8

86.

Mr. Abdulhussein was not truthful about his identity when he arrived on Christmas

Island in December 2012, which may have served as a justification for his initial detention.

Moreover, he had previously fled Australia and had outstanding prison sentences. In the

light of these facts, which are not disputed by the source, the Working Group is unable to

conclude that the initial detention of Mr. Abdulhussein was purely due to his exercise of the

right to seek asylum. The Working Group is therefore unable to find that the detention of

Mr. Abdulhussein falls under category II.

87.

However, Mr. Abdulhussein has been in detention for over eight years, since 15

December 2012. Although for approximately a year of that time Mr. Abdulhussein served

an outstanding prison sentence, the remainder of the time he has been detained purely due

to his migratory status. It is therefore upon the Working Group to examine whether this

detention falls under its category IV, which may arise if asylum seekers, immigrants or

refugees are subjected to prolonged administrative custody without the possibility of

administrative or judicial review or remedy.

88.

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. 9 That right, which constitutes a peremptory norm of

international law, applies to all forms of deprivation of liberty10 and to all situations of

deprivation of liberty, including not only to detention for the 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.11 It

applies irrespective of the place of detention or the legal terminology used in the legislation,

and furthermore, any form of deprivation of liberty on any ground must be subject to

effective oversight and control by the judiciary.12

89.

The Working Group wishes to underline that although the Government argues that

throughout the relevant period the detention of Mr. Abdulhussein has been reviewed 71

times by the Case Management and Detention Review Committee, as the Working Group

has already clearly stated in its previous opinions,13 this Committee is not a judicial body as

required by article 9 (4) of the Covenant. The Working Group observes the repeated failure

to explain how the reviews carried out by this Committee satisfy the guarantees

encapsulated in the right to challenge the legality of detention enshrined in article 9 of the

Covenant.14 The Working Group therefore finds that Mr. Abdulhussein’s right to challenge

the legality of his detention before a judicial body, the right stipulated in article 9 (4) of the

Covenant, has been violated. In making this finding, 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 of the Covenant.15

8 A/HRC/39/45, annex, para. 12.

9 See paras. 2–3.

10 Ibid., para. 11.

11 Ibid., para. 47 (a).

12 Ibid., para. 47 (b).

13 Opinions No. 20/2018, para. 61; No. 50/2018, para. 77; No. 74/2018, para. 103; No. 1/2019, para. 80;

No. 2/2019, para. 95; and No. 74/2019, para. 67.

14 Ibid.

15 C. v. Australia; Baban et al. 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 and 1288/2004); Bakhtiyari v. Australia (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).

A/HRC/WGAD/2020/35

12

90.

Moreover, the Working Group observes that at present, the detention of Mr.

Abdulhussein appears to be indefinite. He has been in detention since 15 December 2012,

and the Working Group is mindful that the Government in its response has failed to give an

indication as to when this detention might come to an end or what steps it is taking or

intends to take to bring it to an end.

91.

The Working Group therefore must address the argument presented by the

Government that the continuing detention in the context of migration is lawful under

international law so long as the grounds for detention are justifiable, and that the length of

detention is not a determining factor. 16 The Working Group considers this to be a

misinterpretation of the applicable international human rights law. The Working Group

wishes to underline that indefinite detention of individuals in the course of migration

proceedings cannot be justified and is arbitrary,17 which is why it has required that a

maximum period for detention in the course of migration proceedings be set, by legislation,

and that upon expiry of the period for detention set by law, the detained person must be

automatically released.18

92.

The Working Group disagrees with the Government’s submission that the length of

detention in itself is not a determining factor and that so long as reasons justifying detention

are present, the detention may legally continue. To follow this reasoning would mean to

accept that individuals could be caught up in an endless cycle of periodic reviews of their

detention without any prospect of actual release. This situation is akin to indefinite

detention which cannot be remedied even by the most meaningful review of detention

carried out on an ongoing basis.19 As stated in revised deliberation No. 5:

There may be instances when the obstacle for identifying or removal of persons in

an irregular situation from the territory is not attributable to them – including non-

cooperation of the consular representation of the country of origin, the principle of

non-refoulement20 or the unavailability of means of transportation – thus rendering

expulsion impossible. In such cases, the detainee must be released to avoid

potentially indefinite detention from occurring, which would be arbitrary.21

93.

The Working Group considers that the de facto indefinite detention of Mr.

Abdulhussein is contrary to the obligations that Australia has undertaken under

international law and to article 9 of the Covenant in particular. The Working Group

therefore concludes that Mr. Abdulhussein 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 arbitrary, falling under category IV.

94.

Furthermore, the Working Group notes the source’s argument that Mr. Abdulhussein

as a non-citizen appears to be in a different situation from Australian citizens in relation to

his ability to challenge effectively the legality of his detention before domestic courts and

tribunals, owing to the effective result of the decision of the High Court in Al-Kateb v.

Godwin. According to that decision, while Australian citizens can challenge administrative

detention, non-citizens cannot. The Government denies those allegations, arguing that in

the cited case the High Court held that provisions of the Migration Act requiring detention

of non-citizens until they were removed, deported or granted a visa, even if removal were

not reasonably practicable in the foreseeable future, were valid.

95.

The Working Group notes that the same explanation was provided by the

Government in relation to the High Court’s decision in that case, and that this is the same

explanation which the Government has repeatedly presented to the Working Group and

which has been rejected by the Working Group on previous occasions.22 This explanation

16 Opinion No. 74/2019, paras. 69–70.

17 See the Working Group’s revised deliberation No. 5 (A/HRC/39/45, annex), para. 18, and opinions

Nos. 28/2017, 42/2017 and 7/2019; see also A/HRC/13/30, para. 63.

18 Revised deliberation No. 5, para. 17. See also A/HRC/13/30, para. 61; and opinion No. 7/2019.

19 Opinions Nos. 1/2019 and 7/2019.

20 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3;

Convention relating to the Status of Refugees, art. 33.

21 A/HRC/13/30, para. 63; opinion No. 45/2006; A/HRC/7/4, para. 48; and A/HRC/10/21, para. 82.

22 Opinions No. 21/2018, para. 79; No. 50/2018, para. 81; No. 74/2018, para. 117; No. 1/2019, para. 88;

No. 2/2019, para. 98; and No. 74/2019, para. 72.

A/HRC/WGAD/2020/35

13

only confirms that the High Court affirmed the legality of the detention of non-citizens until

they were removed, deported or granted a visa, even if removal were not reasonably

practicable in the foreseeable future.

96.

The Working Group has previously noted that the Government does not explain how

such non-citizens can challenge effectively their continued detention after this decision of

the High Court, which is what the Government should show in order to comply with

articles 9 and 26 of the Covenant. The Working Group recalls the jurisprudence of the

Human Rights Committee in which it examined the implications of the High Court’s

judgment in 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.23

97.

In the past, the Working Group has concurred with the views of the Human Rights

Committee on this matter,24 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 article 26 of the Covenant. It therefore concludes that the detention of Mr.

Abdulhussein is arbitrary, falling under category V.

Migration Act 1958

98.

The Working Group observes that the present case is the latest in a number of cases

from Australia that have come before it since 2017 which have concerned the same issue,

namely mandatory immigration detention as per the Migration Act 1958. 25 This Act

stipulates that an unlawful non-citizen must be detained, and kept in immigration detention

until 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 granting of a visa, or to removal (even if removal is not

reasonably practicable in the foreseeable future), the detention of an unlawful non-citizen is

permitted under Australian law.

99.

The Working Group reiterates that seeking asylum is not a criminal act but a

universal human right, enshrined in article 14 of the Universal Declaration of Human

Rights, and in the Convention relating to the Status of Refugees, of 1951, and its 1967

Protocol.26 The Working Group notes that these instruments constitute international legal

obligations undertaken by Australia, and in particular notes the legally binding nature of the

1951 Convention and its 1967 Protocol in relation to Australia.

100.

The Working Group wishes to underline 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.27 Moreover, as the Human

Rights Committee has stated in paragraph 18 of 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 particular reasons 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.

23 C. v. Australia; Baban et al. 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 and 1288/2004); Bakhtiyari v. Australia (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), para. 9.3.

24 Opinions No. 28/2017, No. 42/2017, No. 71/2017, No. 20/2018, No. 21/2018, No. 50/2018, No.

74/2018, No. 1/2019, No. 2/2019 and No. 74/2019.

25 Ibid.

26 Opinions Nos. 28/2017, 42/2017 and 50/2018; see also revised deliberation No. 5, para. 9.

27 A/HRC/10/21, para. 67. See also revised deliberation No. 5, paras. 12 and 16.

A/HRC/WGAD/2020/35

14

101.

The provisions of the Migration Act 1958 stand at odds with these requirements of

international law, as section 189 (1) (and (3)) of the Act provide for de facto mandatory

detention of all unlawful non-citizens unless they are being removed from the country or

are granted a visa. The Working Group further observes that the Act does not reflect the

principle of exceptionality of detention in the context of migration as recognized in

international law, and nor does it provide for alternatives to detention to meet the

requirement of proportionality.28

102.

The Working Group is concerned about the number of cases from Australia

regarding the implementation of this Act. The Working Group is equally concerned that, in

all these cases, the Government has argued that the detention is lawful because it follows

the stipulations of the Migration Act 1958. The Working Group wishes to clarify that such

argument cannot be accepted as legitimate under international law. The fact that a State is

following its own domestic legislation does not in itself approve that legislation as

conforming with the obligations that the State has undertaken under international law. In

the Working Group’s view, no State can legitimately avoid its obligations arising from

international law by evoking its domestic laws and regulations.

103.

The Working Group therefore wishes to emphasize that it is the duty of the

Government to bring its national legislation, including the Migration Act 1958, into line

with its obligations under international law. Since 2017, the Government has been

consistently reminded of these obligations by numerous international human rights bodies,

including the Human Rights Committee,29 the Committee on Economic, Social and Cultural

Rights,30 the Committee on the Elimination of Discrimination against Women31 and the

Committee on the Elimination of Racial Discrimination, 32 as well as by the Special

Rapporteur on the human rights of migrants33 and by the Working Group.34 The Working

Group therefore calls upon the Government to review this legislation in the light of its

obligations under international law, without delay. In accordance with paragraph 33 (a) of

its methods of work, the Working Group refers the present case to the Special Rapporteur

on the human rights of migrants, for appropriate action.

104.

The Working Group notes the spread of the coronavirus disease (COVID-19)

pandemic, which has required many countries around the world to take unprecedented steps.

The World Health Organization has identified people deprived of their liberty, such as

prisoners and individuals in other places of deprivation of liberty, including those in

immigration detention, as being more vulnerable to COVID-19 than the general population

because of the confined conditions in which they live in very close proximity to each other

over prolonged periods of time.35 Numerous United Nations bodies have called upon all

States to release detainees, in particular those in immigration detention.36 The Working

28 Ibid.

29 CCPR/C/AUS/CO/6, paras. 33–38.

30 E/C.12/AUS/CO/5, paras. 17–18.

31 CEDAW/C/AUS/CO/8, para. 53.

32 CERD/C/AUS/CO/18-20, paras. 29–33.

33 See A/HRC/35/25/Add.3.

34 Opinions No. 50/2018, paras. 86–89; No. 74/2018, paras. 99–103; No. 1/2019, paras. 92–97; No.

2/2019, paras. 115–117; and No. 74/2019, paras. 37–42.

35 WHO Regional Office for Europe, “Preparedness, prevention and control of COVID-19 in prisons

and other places of detention: interim guidance”, 15 March 2020, p. 1.

36 See, for example, the statement of the United Nations High Commissioner for Human Rights on 25

March 2020 – Urgent action needed to prevent COVID-19 “rampaging through places of detention”;

the advice of the Subcommittee on Prevention of Torture to States parties and national preventive

mechanisms, relating to the coronavirus pandemic, adopted on 25 March 2020; WHO Regional

Office for Europe, “Preparedness, prevention and control of COVID-19 in prisons and other places of

detention: interim guidance”, 15 March 2020; the advice of the Subcommittee on Prevention of

Torture to the national preventive mechanism of the United Kingdom of Great Britain and Northern

Ireland regarding compulsory quarantine for coronavirus, adopted at its fortieth session (10–14

February 2020); and the statement of principles relating to the treatment of persons deprived of their

liberty in the context of the coronavirus disease (COVID-19) pandemic (CPT/Inf (2020)13), issued by

the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or

Punishment on 20 March 2020.

A/HRC/WGAD/2020/35

15

Group associates itself with these calls and calls upon the Government of Australia to

release those currently held in immigration detention.

105.

The Working Group welcomes the invitation of 27 March 2019 from the

Government for the Working Group to conduct a visit to Australia in 2020. Although the

visit had to be postponed due to the worldwide pandemic, the Working Group looks

forward to carrying out the visit as soon as practically possible. It views the visit as an

opportunity to engage with the Government constructively and to offer its assistance in

addressing its serious concerns relating to instances of arbitrary deprivation of liberty.

Disposition

106.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Jamal Talib Abdulhussein, being in contravention of

articles 2, 3, 7, 8 and 9 of the Universal Declaration of Human Rights and articles 2,

9 and 26 of the International Covenant on Civil and Political Rights, is arbitrary and

falls within categories IV and V.

107.

The Working Group requests the Government of Australia to take the steps

necessary to remedy the situation of Mr. Abdulhussein 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.

108.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Abdulhussein immediately and accord

him an enforceable right to compensation and other reparations, in accordance with

international law. In the current context of the global coronavirus disease (COVID-19)

pandemic and the threat that it poses in places of detention, the Working Group calls upon

the Government to take urgent action to ensure the immediate release of Mr. Abdulhussein.

109.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Abdulhussein and to take appropriate measures against those responsible for the violation

of his rights.

110.

The Working Group requests the Government to bring its laws, particularly the

Migration Act 1958, into conformity with the recommendations made in the present

opinion and with the international law commitments made by Australia.

111.

In accordance with paragraph 33 (a) of its methods of work, the Working Group

refers the present case to the Special Rapporteur on the human rights of migrants, for

appropriate action.

112.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

113.

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. Abdulhussein has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr.

Abdulhussein;

(c)

Whether an investigation has been conducted into the violation of Mr.

Abdulhussein’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.

114.

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

A/HRC/WGAD/2020/35

16

whether further technical assistance is required, for example through a visit by the Working

Group.

115.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of 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.

116.

The Working Group recalls that the Human Rights Council has encouraged all

States to cooperate with the Working Group and has 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.37

[Adopted on 1 May 2020]

37 Human Rights Council resolution 42/22, paras. 3 and 7.

A/HRC/WGAD/2020/35

17

Annex

Individual opinion of José Guevara Bermúdez and

Seong-Phil Hong (partially dissenting)

1.

We would like to express our dissenting view with regard to the conclusion related

to category I in the present case concerning Jamal Talib Abdulhussein. We consider that the

detention of Mr. Abdulhussein should have been considered as arbitrary under category I,

as it is impossible to invoke a legal basis justifying his deprivation of liberty, in violation of

articles 3 and 9 of the Universal Declaration of Human Rights and article 9 (1), (3) and (4)

of the Covenant.

2.

The Working Group has established a consistent practice of finding that a detention

pursuant to a law that is inconsistent with international human rights law does not satisfy

the exigencies of the principle of legality and thus the deprivation of liberty lacking in legal

basis is arbitrary under category I of its methods of work. Such practice can be seen, for

example, in opinions No. 4/2019, para. 49 (detention under lese majesty criminal

provisions); No. 69/2018, para. 21; No. 40/2018, para. 45; No. 43/2017, para. 34 (detention

pursuant to a law that criminalized conscientious objection to military service); No. 1/2018,

paras. 60 and 65 (detention under the Constitution and a law that provides for automatic

pretrial detention for certain crimes); and No. 14/2017 (detention pursuant to a law that

criminalized consensual same-sex relations between adults).

3.

In the present opinion, the Working Group presented an analysis of the compatibility

of the Migration Act of 1958 with the international obligations of Australia, including the

Universal Declaration on Human Rights, the International Covenant on Civil and Political

Rights, and the Convention relating to the Status of Refugees, of 1951, and its 1967

Protocol, outside of the sections of the opinion related to the discussion of five legal

categories that could be applied to the detention of Mr. Abdulhussein.

4.

In that regard, the Working Group found that the Migration Act 1958 per se

manifestly contravened international law, as it provided for the mandatory detention of all

unauthorized non-citizens (unless they were being removed from the country or granted a

visa), failed to respect the principle of exceptionality of detention in the context of

migration, and provided no alternatives to detention. In view of the foregoing, the Working

Group urged the Government of Australia to bring the Migration Act 1958 into conformity

with its international law obligations, and reiterated the relevant recommendations by

numerous international human rights bodies, including the Human Rights Committee, the

Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of

Discrimination against Women and the Committee on the Elimination of Racial

Discrimination, as well as by the Special Rapporteur on the human rights of migrants and

by the Working Group.

5.

We consider that such analysis should have been included in the section related to

the consideration of the situation under category I, and that the Working Group should have

concluded that the Migration Act 1958, as such, could not be considered as valid under

international law, and found that the detention of Jamal Talib Abdulhussein fell under

category I.