A/HRC/WGAD/2020/70

GE.21-01116(E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-ninth session, 23–27 November 2020

Opinion No. 70/2020 concerning Mr. Laltu (alias Somrat Morol)

(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 29 June 2020 the Working

Group transmitted to the Government of Australia a communication concerning Mr. Laltu

(alias Somrat Morol). The Government replied to the communication on 28 September 2020.

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, disability,

or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

* In accordance with paragraph 5 of the Working Group’s methods of work, Leigh Toomey did not

participate in the discussion of the present case.

United Nations

A/HRC/WGAD/2020/70

General Assembly

Distr.: General

28 January 2021

Original: English

A/HRC/WGAD/2020/70

2

Submissions

Communication from the source

4.

Mr. Laltu (alias Somrat Morol) is a citizen of Bangladesh, born on about 20 July 1988.

He speaks Bangla and was born and raised as a Sunni Muslim. In 2017, he converted to

Christianity. Mr. Laltu was raised by adoptive parents and has no contact with his biological

parents. He has no identification documents and has never held a passport or had a birth

certificate.

5.

In about 2008, Mr. Laltu began a relationship with a Christian woman and was

threatened by her family. Following an attempt to marry, the couple was captured and taken

back to their village, where Mr. Laltu was beaten by locals and detained by the police without

charge for over a month. Mr. Laltu was disowned by his adoptive father and expelled from

the village.

6.

Mr. Laltu fears for his safety also owing to the fact that he witnessed a killing in his

father’s shop in 2007 or 2008. The killing took place during an incident between two local

political party members. Members of the political party to which the victim belonged have

put pressure on Mr. Laltu to act as a witness. However, members of the opposing party have

threatened to kill him if he gives evidence. In October 2010, Mr. Laltu fled to Malaysia by

boat, where he worked illegally as a welder. In October 2012, he fled to Australia, via

Indonesia, also by boat.

7.

On 7 November 2012, Mr. Laltu reached Australian territorial waters in a boat coming

from Indonesia. The boat was intercepted by the Australian Navy. The source assumes that

some document warranting the detention was shown, but no such document is currently

available. It is further noted that the officers were identifiable by their uniforms and the

markings on their ship.

8.

The detention was based on the decision of the Department of Immigration and

Citizenship. The reason for the arrest imputed by the authorities was unauthorized entry into

Australia by boat. More specifically, the Australian Migration Act 1958 specifically provides

in sections 189 (1) and 196 (1) and (3) that unlawful non-citizens must be detained and kept

in detention until they are: (a) removed or deported from Australia; or (b) granted a visa.

Section 196 (3) specifically provides that an unlawful non-citizen may not be released from

detention, even by a court, unless the non-citizen has been granted a visa.

9.

Mr. Laltu was initially taken to Wickham Point Alternative Place of Detention in

Darwin. On 14 November 2012, he was transferred to the Immigration Detention Centre on

Christmas Island.

10.

The source explains that Mr. Laltu remains detained because he is classified as an

unauthorized maritime arrival and an unlawful non-citizen under the Migration Act.

Specifically, section 189 of the Act provides that “if an officer knows or reasonably expects

that a person in the migration zone (other than an excised offshore place) is an unlawful non-

citizen, the officer must detain the person”.

11.

On 28 August 2015, Mr. Laltu was invited to apply for a Temporary Protection visa

or a Safe Haven Enterprise visa. Persons considered to be unauthorized maritime arrivals are

prohibited from making a valid application for protection unless they are invited to do so by

the Minister for Home Affairs or the Minister for Immigration and Border Protection. For

Mr. Laltu, that prohibition was lifted more than two and a half years after he had arrived

seeking asylum and was detained. The relevant Ministers may exercise their non-delegable

and non-reviewable powers to release Mr. Laltu from detention at any time.

12.

On 15 January 2016, Mr. Laltu submitted a Safe Haven Enterprise visa application.

On 12 July 2016, the Department of Home Affairs denied it, which automatically referred

the case to the Immigration Assessment Authority. On 16 September 2016, the Immigration

Assessment Authority upheld the decision not to grant a visa. On 1 March 2017, the Federal

Circuit Court affirmed that decision.

13.

On 6 August 2018, the Full Federal Court issued a decision allowing Mr. Laltu to

appeal and holding that the Immigration Assessment Authority did not have jurisdiction to

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3

hear Mr. Laltu’s case and that he should have been referred to the Administrative Appeals

Tribunal. However, on 5 April 2019, Mr. Laltu was notified again of the decision taken by

the Department of Home Affairs. He lodged an appeal against that decision before the

Administrative Appeals Tribunal on 8 April 2019. On 11 October 2019, the Administrative

Appeals Tribunal affirmed the decision of the Department of Home Affairs to deny Mr. Laltu

a Safe Haven Enterprise visa.

14.

According to the information received, throughout this complex and lengthy appeal

process, Mr. Laltu has remained in various immigration detention centres both offshore and

on mainland Australia, including in the Christmas Island Immigration Detention Centre,

Wickham Point Alternative Place of Detention in Darwin, Yongah Hill Immigration

Detention Centre in Western Australia and Melbourne Immigration Transit Accommodation.

15.

Throughout his detention, Mr. Laltu has been known to be of good character and has

been consistently held in low-security compounds and facilities. His record shows that he is

a person who has respectful relationships with other detainees, staff and authorities.

16.

Mr. Laltu has become increasingly mentally unwell during his period in immigration

detention. He is prescribed the maximum daily dosage of a drug used to treat anxiety and

major depressive disorders. He has been diagnosed with mild recurring depression and is also

on medication for insomnia.

17.

Mr. Laltu lodged an appeal against the decision of the Administrative Appeals

Tribunal before the Federal Circuit Court, which was scheduled to be heard by September

2020, almost a year after the decision of the Administrative Appeals Tribunal. However, the

Federal Circuit Court action has been withdrawn and Mr. Laltu remains in detention.

18.

The source notes that, under section 195A of the Migration Act, the ministerial powers

that could be used to release Mr. Laltu from detention are non-compellable and non-

reviewable. While some Constitutional challenges to the power of the Department of Home

Affairs to indefinitely detain unlawful non-citizens have been lodged, to date, they have been

unsuccessful.

19.

The source further submits that Mr. Laltu has been deprived of his liberty as a result

of the exercise of his rights guaranteed under article 14 of the Universal Declaration of

Human Rights. Since arriving in Australia, he has been detained while exercising his right to

asylum. He was also denied the right to seek asylum until August 2015, when the Department

of Home Affairs lifted the bar on his ability to lodge an application.

20.

Mr. Laltu has also been deprived of his rights in contravention of article 26 of the

Covenant, which provides that all persons are entitled to equal protection under the law,

without any discrimination. As an unauthorized maritime arrival, Mr. Laltu has been subject

to the fast track review process, in which the initial decision by the Department of Home

Affairs is reviewable only by the Immigration Assessment Authority.

21.

According to the source, the Immigration Assessment Authority is a limited avenue

of review that offers limited opportunities to conduct a substantive reassessment of the

applicant’s case. The fast track review process subjects vulnerable asylum seekers to a high

risk of falling victim to legal errors, including possible breaches of the principle of non-

refoulement.

22.

The source states that subsequent review of Mr. Laltu’s case determined that he was

not an unauthorized maritime arrival and therefore should not have been subject to the fast

track review process. That error on the part of the Department of Home Affairs caused

lengthy delays to the processing of Mr. Laltu’s case and has therefore significantly extended

the length of time that Mr. Laltu has spent in detention.

23.

Immigration detention is described by the Department of Home Affairs as being used

as a last resort and for a very small proportion of the people whose status requires resolution,

sometimes through protracted legal proceedings. That is not the case for Mr. Laltu, who was

detained immediately on arrival and has lived peaceably and without incident in low-security

facilities throughout his time in immigration detention.

24.

The source notes that, in its general comment No. 35 (2014), the Human Rights

Committee required that detention in the course of proceedings for the control of immigration

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4

“must be justified as reasonable, necessary and proportionate in the light of the circumstances

and reassessed as it extends in time”. Mr. Laltu has been held in administrative detention for

over seven years and remains in custody. There is no mechanism under Australian law to

challenge his detention, given that such detention is authorized under the Migration Act and

case law.

25.

Mr. Laltu was not invited to apply for protection under section 46A of the Migration

Act until August 2015, when he had been in closed detention for almost two and a half years.

During that time, there is no evidence that he was put forward for a bridging visa or

community detention (under section 195A of the Act), despite his exemplary behaviour and

consistently being assigned to low-security facilities.

26.

The High Court of Australia has upheld mandatory detention of non-citizens as a

practice that is not contrary to the Constitution. Furthermore, the Human Rights Committee

has held that there is no effective remedy for people subject to mandatory detention in

Australia.

27.

The source asserts that 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 (2004) confirms that detention of non-citizens pursuant to, inter alia, section 189 of

the Migration Act does not contravene the Constitution. The source concludes that the

effective result of that is that, while Australian citizens can challenge administrative

detention, non-citizens cannot.

Response from the Government

28.

On 29 June 2020, 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 28 August 2020, detailed information about the current

situation of Mr. Laltu and to clarify the legal provisions justifying his continued detention,

as well as its compatibility 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 Mr. Laltu’s physical and mental

integrity.

29.

On 6 July 2020, the Government requested an extension, which was granted, and a

new deadline of 28 September 2020 was set. The Government submitted its reply on 28

September 2020. It submits that Mr. Laltu is a citizen of Bangladesh who arrived in Australia

on 12 November 2012. He was determined to be an offshore entry person, under section 5

(1) of the Migration Act, as he was believed to have entered Australia by sea at an excised

offshore place. However, as a consequence of the judgment in DBB16 v. Minister for

Immigration and Border Protection (2018), in which the Federal Court found that the

appointment as a proclaimed port the area of waters within the Territory of Ashmore and

Cartier Islands to be invalid, Mr. Laltu did not enter Australia by sea at an excised offshore

place and is not therefore an unauthorized maritime arrival as defined in section 5AA of the

Act. Mr. Laltu is currently held in immigration detention at the Melbourne Immigration

Transit Accommodation and he remains in immigration detention because he is an unlawful

non-citizen, under section 14 of the Migration Act, given that he is a non-citizen who does

not hold a valid visa.

30.

Mr. Laltu does not hold a substantive visa and is currently barred from applying for a

visa under section 48 of the Migration Act, except for those visas prescribed under regulation

2.12 of the Migration Regulations 1994, including partner visas, protection visas and certain

bridging visas. Mr. Laltu is unable to meet the criteria to make a valid onshore application

for any of the exempted classes of visa, except for a Bridging Visa E (subclass 050). To make

a valid application, Mr. Laltu must be classified as an “eligible non-citizen”, as defined in

section 72 of the Migration Act. However, since Mr. Laltu was not immigration cleared at

the time of his arrival, he does not meet the section 72 (1) (a) eligibility criterion for

classification as an “eligible non-citizen”.

31.

The Minister has determined that Mr. Laltu does not satisfy all the criteria under

regulation 2.20 (1) of the Migration Regulations. Mr. Laltu therefore cannot be considered

an eligible non-citizen pursuant to section 72 (1) (b) of the Migration Act. He cannot make a

A/HRC/WGAD/2020/70

5

valid application for a bridging visa to become a lawful non-citizen. He can only be released

from immigration detention if he is granted a visa, removed from Australia or if the Minister

chooses to exercise his or her discretionary and non-compellable personal intervention

powers to do so. Cases are referred to the Minister for consideration only if the Department

of Home Affairs assesses that they meet the ministerial intervention guidelines, which

establish the types of cases that should be referred for ministerial consideration.

32.

Mr. Laltu’s case has been assessed against or referred to the Minister under section

195A of the Migration Act on six separate occasions. The Department is currently examining

a group submission that will again include Mr. Laltu’s case for ministerial consideration.

33.

Following his arrival in Australia on 12 November 2012, Mr. Laltu was initially

detained under section 189 (1) of the Migration Act and was subsequently transferred to the

Immigration Detention Centre on Christmas Island. On 15 January 2013, the Department

initiated consideration of Mr. Laltu’s case under the section 195A ministerial intervention

guidelines. On 25 January 2013, his case was finalized without referral to the Minister, as it

was found not to meet the guidelines.

34.

On 11 August 2015, believing Mr. Laltu to be an unauthorized maritime arrival, the

Department initiated consideration for ministerial intervention under section 46A of the

Migration Act to allow him to apply for a Protection or a Safe Haven Enterprise visa. On 13

August 2015, the Minister lifted the statutory bar, pursuant to section 46A of the Act, to allow

Mr. Laltu to submit a visa application. On 28 August 2015, Mr. Laltu was invited to apply

for a visa.

35.

Mr. Laltu applied for a Safe Haven Enterprise visa on 15 January 2016. His

application was also taken to be an application for a Protection visa. The Protection visa

application was determined to be invalid, as Mr. Laltu is not an eligible non-citizen under

section 72 of the Migration Act, given that he was not immigration cleared upon arrival in

2012. Additionally, the Minister had only intervened under section 46A of the Act to allow

Mr. Laltu to lodge a valid application for the above-mentioned types of visa. That is, the

determination only provided for Mr. Laltu to make a valid application for a Safe Haven

Enterprise visa.

36.

On 22 April 2016, the Department commenced further assessment of Mr. Laltu’s case

under section 195A of the Migration Act. His case was referred for ministerial consideration

under that section on 6 May 2016. On 11 May 2016, the Minister declined to consider

intervening.

37.

On 12 July 2016, Mr. Laltu’s visa application was refused, as he was not found to

engage the protection obligations of Australia and could not therefore be granted a Protection

visa under section 65 of the Migration Act.

38.

On 14 July 2016, as Mr. Laltu was then considered to be an unauthorized maritime

arrival, the visa refusal decision was referred to the Immigration Assessment Authority for

review of the delegate’s refusal decision. Under section 473CA of the Migration Act, the

Minister must refer a fast track reviewable decision to that Authority as soon as reasonably

practicable after the decision is made.

39.

The Immigration Assessment Authority is a separate office within the Refugee

Review Tribunal, independent of the Department and of the Minister. It conducts reviews of

fast track reviewable decisions, which are decisions made by the Minister or a delegate who

refuses to grant a Temporary Protection visa to a fast track reviewable applicant. Immigration

Assessment Authority decisions are reviewable in the federal courts of Australia.

40.

On 16 September 2016, the Immigration Assessment Authority affirmed the

delegate’s decision to refuse Mr. Laltu’s visa application.

41.

On 10 October 2016, the Department commenced a further assessment of Mr. Laltu’s

case under the section 195A guidelines. His case was referred for ministerial consideration

on 30 January 2017. On 13 February 2017, the Minister declined to consider intervening.

42.

On 18 October 2016, Mr. Laltu lodged an appeal with the Federal Circuit Court in

relation to the 16 September 2016 Immigration Assessment Authority decision. On 1 March

2017, that Court dismissed the appeal.

A/HRC/WGAD/2020/70

6

43.

On 15 March 2017, Mr. Laltu lodged an appeal of the Federal Circuit Court decision

in the Full Federal Court. Mr. Laltu contended that he was never a fast track applicant and,

as a result, he was not properly notified of his right to have the decision to refuse his visa

application reviewed by the Administrative Appeals Tribunal under part 7 of the Migration

Act, rather than by the Immigration Assessment Authority under part 7AA of the Act.

44.

On 30 June 2017, the Department commenced a further assessment of the case under

the section 195A guidelines. On 18 August 2017, the case was not referred to the Minister as

it did not meet the guidelines for referral.

45.

On 6 August 2018, the Full Federal Court allowed the appeal and set aside the Federal

Circuit Court decision of 1 March 2017. The matter was remitted to the Administrative

Appeals Tribunal for review. On 19 August 2018, Mr. Laltu applied to the Tribunal for a

merits review of the delegate’s 12 July 2016 visa refusal decision.

46.

On 5 September 2018, the Department commenced a further assessment of Mr. Laltu’s

case under the section 195A guidelines and his case was referred for ministerial consideration

on 24 September 2018. On 23 October 2018, the Minister declined to consider intervening.

47.

On 14 February 2019, the Department briefed the then Assistant Minister on

Mr. Laltu’s case as part of a wider briefing on a number of long-term detention cases. The

submission provided the then Assistant Minister an opportunity to indicate whether she was

willing to consider the cases on an individual basis. On 26 February 2019, she indicated that

Mr. Laltu’s case should again be referred for consideration under the section 195A ministerial

intervention powers.

48.

Following the 6 August 2018 decision of the Full Federal Court, on 5 April 2019, the

Department notified Mr. Laltu of the decision to refuse to grant him a Safe Haven Enterprise

visa in accordance with section 66 of the Migration Act. That repeat notification was

necessary as the Department had previously notified Mr. Laltu that his visa application had

been refused and that the refusal decision had been referred to the Immigration Assessment

Authority as he was considered at the time to be a fast track applicant. However, the Full

Federal Court determined that Mr. Laltu was not a fast track applicant and that he had not

been correctly notified of the decision to refuse his visa application. As a result, the

Department sought to correctly notify Mr. Laltu of the visa refusal decision and his right to

seek review of the decision by the Administrative Appeals Tribunal.

49.

On 8 April 2019, Mr. Laltu lodged a further application with the Administrative

Appeals Tribunal for review of the refusal decision.

50.

On 7 May 2019, Mr. Laltu’s case was referred for ministerial consideration under

section 195A of the Migration Act. On 24 July 2019, the Minister declined to consider

intervening in Mr. Laltu’s case.

51.

On 11 October 2019, the Administrative Appeals Tribunal affirmed the decision not

to grant Mr. Laltu a Safe Haven Enterprise visa. On 14 October 2019, the second application

lodged by Mr. Laltu with the Tribunal in reference to the same refusal decision was found to

have no jurisdiction, as the Tribunal had already made a decision on the matter.

52.

On 20 November 2019, Mr. Laltu appealed the Administrative Appeals Tribunal’s

decision of 11 October 2019 in the Federal Circuit Court. On 27 May 2020, he withdrew that

application.

53.

On 30 January 2020, Mr. Laltu’s case was again referred for assessment against the

section 195A guidelines. His case will be referred for the Minister’s consideration as part of

a group submission. The Department is currently examining that submission. The ongoing

section 195A ministerial intervention process is not a barrier to Mr. Laltu’s removal.

54.

As Mr. Laltu’s visa application has been finally determined and he has no ongoing

litigation matters, his case has been referred for removal. Due to his consistent refusal to

engage with Status Resolution Officers regarding a voluntary removal from Australia, the

Department is proceeding with Mr. Laltu’s involuntary removal.

55.

The Government submits that Mr. Laltu has a history of mental health issues, which

are managed by the Department’s Health Service Provider, International Health and Medical

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Services. Recently, he developed somatic preoccupation, which was investigated with no

specific cause found. International Health and Medical Services has supported Mr. Laltu in

relation to his somatization and modified his mood and sleep medication with his consent.

While Mr. Laltu continues to appear anxious and frustrated about his current circumstances,

International Health and Medical Services continues to provide him with appropriate targeted

health and mental health support.

56.

On 13 May 2016, Mr. Laltu was attended by a physician. He was diagnosed with an

adjustment disorder with an anxious mood and was prescribed medication. In a follow-up

review on 28 October 2016, he was noted to be experiencing a normal mood.

57.

On 25 November 2016, Mr. Laltu was attended by a psychiatrist, who recommended

that his medication dosage be increased to the maximum daily dosage over ensuing weeks.

At subsequent appointments on 6 and 14 December 2016, he reported benefiting from his

prescribed medication. During the assessment in 2018, Mr. Laltu again stated that he derived

benefit from the medication prescribed and wished to continue taking it.

58.

The Government submits that the universal visa system in Australia requires all non-

citizens to hold a valid visa.

59.

The Australian immigration detention legislative framework provides that an

individual must be detained where an officer knows or reasonably suspects that the individual

is an unlawful non-citizen (section 189 of the Migration Act). An unlawful non-citizen must

be kept in immigration detention until he or she is removed or is granted a visa (sect. 196).

60.

Section 195A of the Migration Act enables the Minister to grant a visa to a person in

immigration detention. The Minister’s powers under that section are personal, discretionary

and non-compellable. It is for the Minister to decide what is in the public interest. The

Minister has established guidelines that set out the types of cases that should or should not

be referred for consideration under that section.

61.

Applicants for protection visas will have their claims assessed by the Government.

The legislation, policies and practices of Australia are designed to implement the country’s

non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as

amended by the 1967 Protocol thereto, the Covenant and the Second Optional Protocol

thereto, and the Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment.

62.

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 if it continues without proper justification. In instances of continuing detention, the

determining factor is not the length of the detention, but whether the grounds for the detention

are justifiable. Mr. Laltu’s case has been repeatedly referred for ministerial consideration

under section 195A intervention powers. The Minister’s powers under section 195A of the

Migration Act are non-compellable. Mr. Laltu is an unlawful non-citizen, and as he was not

immigration cleared upon his arrival, he cannot satisfy the criteria to be classified as an

eligible non-citizen under section 72 (1) (a) of the Act. He can be an eligible non-citizen only

if he is in a class of persons prescribed for that purpose under section 72 (1) (b) or if the

Minister determines him to be an eligible non-citizen under section 72 (1) (c).

63.

Section 72 (1) (b) of the Migration Act allows for prescribed classes of people, as set

out in regulation 2.20 of the Migration Regulations, to be defined as eligible non-citizens. If

so defined, Mr. Laltu would be permitted to also test his eligibility against item 1305 (3) (ba)

of schedule 1 of the Regulations. There would then not appear to be any impediment to him

lodging a valid application for a bridging visa (subclass 050).

64.

Subregulation 2.20 (1) of the Migration Regulations provides that for the purposes of

the definition of eligible non-citizen in section 72 (1) (b) of the Act, the classes of persons

described in subregulations (6) to (12) and (14) to (17) are prescribed.

65.

Due to his consistent refusal to engage with Status Resolution Officers regarding

voluntary removal, as at 3 June 2020, Mr. Laltu did not satisfy subregulation 2.20 (12) (c) of

the Migration Regulations. Mr. Laltu is thus unable to make a valid application for a bridging

visa. Moreover, he has been found not to be owed protection and prior to the finalization of

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his litigation matters in May 2020, the Department was prevented from returning him to his

country owing to the ongoing merits and judicial review processes.

66.

Immigration detention is administrative in nature. The Government is committed to

ensuring that all individuals in immigration detention are treated in a manner consistent with

the international legal obligations of Australia. Mr. Laltu’s immigration detention is lawful

because he is an unlawful non-citizen. The ongoing detention of Mr. Laltu is justifiable and

not arbitrary in the context of the Covenant as the Department of Home Affairs is proceeding

with Mr. Laltu’s removal from Australia.

67.

As for available review mechanisms, the Department is required under section 486N

of the Migration Act to provide the Commonwealth Ombudsman with reports detailing the

circumstances of individuals who have been detained under section 189 of the Act for a

cumulative period of two years and every six months thereafter. Following receipt of the

Department’s reports, the Commonwealth Ombudsman prepares independent assessments of

the individual’s circumstances and provides the Minister with a report under section 486O of

the Act. The Commonwealth Ombudsman may make recommendations to the Minister or

Department regarding the circumstances of individuals, including detention placement. The

Department has reported on Mr. Laltu’s circumstances on 12 occasions, with the most recent

report sent to the Commonwealth Ombudsman on 29 May 2020. Another report in relation

to Mr. Laltu under section 486N of the Act will be due in November 2020 unless he is

removed before that.

68.

The Commonwealth Ombudsman has provided the Minister with six assessments

under section 486O of the Migration Act, most recently on 2 December 2019. The

anonymized version of the assessment and the Minister’s response was tabled in Parliament

on 6 February 2020.

69.

Mr. Laltu’s detention continues to be reviewed monthly under case management

processes by the Department’s Detention Review Committee. The Commonwealth

Ombudsman also continues to provide an assessment of the ongoing conditions under which

Mr. Laltu is detained every six months.

70.

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. Paragraph 75 (v) of the

Constitution provides that the High Court has original jurisdiction in relation to every matter

in which a writ of mandamus or prohibition or injunction is sought against an officer of the

Commonwealth. Subsection 39B (1) of the Judiciary Act 1903 grants the Federal Court the

same jurisdiction as the High Court under paragraph 75 (v) of the Constitution. It is those

provisions that constitute the legal mechanism through which a non-citizen may challenge

the lawfulness of his or her detention, that is, to challenge the legal application of section 189

of the Migration Act.

71.

The Government also argues that in Al-Kateb v. Godwin (2004), the High Court held

that provisions of the Migration Act requiring the detention of non-citizens until they are

removed or granted a visa, even if removal is not reasonably practicable in the foreseeable

future, are lawful. The decision in that case does not alter a non-citizen’s ability to challenge

the lawfulness of his or her detention under Australian law. Furthermore, non-citizens are

also able to challenge the lawfulness of their detention through actions such as habeas corpus.

The mechanisms outlined above indicate that the right to seek a remedy against an officer of

the Commonwealth under the Constitution is still available to non-citizens.

72.

The universal visa system in Australia involves a binary system of lawful and

unlawful non-citizens. A non-citizen who does not hold a visa that is in effect is an unlawful

non-citizen (sects. 13–14 of the Migration Act). Subsection 189 (1) of the Act obliges officers

to detain a person they know or reasonably suspect to be an unlawful non-citizen. The source

claims that the effect of section 196 (3) of the Act is that even a court cannot release an

unlawful non-citizen from immigration detention unless the person has been granted a visa.

However, the courts have the ability to find that a person is not, in fact, an unlawful non-

citizen.

73.

Nothing in the Migration Act prevents a court from determining and enforcing the

limitation in section 189 (1). It is thus open to immigration detainees to challenge their

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9

detention before court on the basis that the relevant officer cannot maintain reasonable

suspicion that the person is an unlawful non-citizen. That can be on the basis that the detainee

in fact holds a valid visa and is a lawful non-citizen, or that he or she is an Australian citizen

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

immigration detention. Subsection 196 (3) does not prevent that because the person in

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

74.

Mr. Laltu is able to and has sought judicial review of the migration decisions

concerning him. On 18 October 2016, he lodged an application in the Federal Circuit Court

for judicial review of the decision of 16 September 2016 of the Immigration Assessment

Authority. On 15 March 2017, he applied to the Full Federal Court to review the Federal

Circuit Court decision. On 19 August 2018 and 8 April 2019, he applied to the Administrative

Appeals Tribunal for a merits review of the delegate’s decision to refuse to grant him a visa.

75.

The source argues that Mr. Laltu has been deprived of his right guaranteed under

article 14 of the Universal Declaration of Human Rights. The Government notes that, while

proclaimed by the General Assembly, the Universal Declaration of Human Rights does not

create binding legal obligations on signatories. Nevertheless, the Government submits that

Mr. Laltu is lawfully detained under section 189 of the Migration Act as he is an unlawful

non-citizen. It reiterates that a person will not be removed in breach of the non-refoulement

obligations of Australia, even in circumstances where the person has been refused a

Protection visa.

76.

In response to the submission that Mr. Laltu has been deprived of his liberty in

contravention of article 26 of the Covenant, 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 Government recalls that the Human

Rights Committee, in its general comment No. 15 (1986), stated 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 (para. 5).

77.

Articles 12 and 13 of the Covenant imply that States parties have the right, under

international law, to control the residence, entry and expulsion of aliens. The Government

submits that it is a matter for it to determine, in accordance with its obligations under

international law, who may enter its territory and under what conditions, including by

requiring that a non-citizen hold a visa in order to lawfully enter and remain in Australia and

that in the case that a visa is not held, a non-citizen is subject to immigration detention.

78.

To the extent that there is differential treatment of citizens and non-citizens in that

Australian citizens are not subject to immigration detention, the Government submits that the

differential treatment is not discriminatory and does not breach article 26 of the Covenant,

since it is aimed at achieving a purpose which is legitimate, based on reasonable and objective

criteria, and is proportionate to the aim to be achieved.

79.

The Government submits that the differential treatment in the Migration Act between

nationals and non-nationals is for the legitimate aim of ensuring the integrity of the Australian

migration programme, assessing the security, identity and health of unlawful non-citizens

and protecting community. That is consistent with articles 12 and 13 of the Covenant. Any

differential treatment between citizens and non-citizens is based on reasonable and objective

criteria for a legitimate purpose and does not amount to prohibited discrimination under the

Covenant.

80.

The Government submits that Mr. Laltu is lawfully detained under section 189 (1) of

the Migration Act and that that is consistent with the international obligations of Australia.

Additional comments from the source

81.

The response of the Government was transmitted to the source for comments, which

the source submitted on 13 October 2020. In its comments, the source notes that the detention

of an unlawful non-citizen is permitted under Australian law. It also notes that the

Government’s response is similar to its previous responses.

A/HRC/WGAD/2020/70

10

82.

The source reports that recently, the Federal Court found that an immigration

detention applicant’s detention was unlawful, and he was released on a writ of habeas

corpus.1 While that case is pertinent to many immigration detainees, since in Mr. Laltu’s case,

a status resolution process has been ongoing for a number of years, it is not yet relevant for

him.

83.

The source notes that it is misleading to suggest that there is some action taking place

in the processing of Mr. Laltu’s Protection visa application. Mr. Laltu’s visa application is

not before the Ministers; it is with the Department of Home Affairs for assessment against

guidelines to potentially send to the Ministers for consideration. It is also misleading to

suggest that, after refusing Mr. Laltu a visa multiple times, the Department will somehow

now conclude that Mr. Laltu meets the guidelines for referral to the Ministers, and that the

Ministers will then decide to grant him a visa.

84.

Furthermore, the ministerial referral process is a non-reviewable and non-compellable

process of personal ministerial decision-making. Submissions are bounced between the

Department of Home Affairs and the Ministers without resolve for years. That is the situation

for Mr. Laltu. Instead of the Ministers’ personal non-discretionary and non-reviewable

powers, decisions relating to long-term detained and complex case asylum seekers should be

reviewed by a committee of experts that includes experts in legal, health and policy issues,

on a regular basis. That would provide an independent and timely review mechanism for such

cases.

85.

According to the source, the detention review mechanisms that operate within the

Australian legal framework permit arbitrary detention. The Commonwealth Ombudsman has

no power to compel the Department of Home Affairs to release a person from immigration

detention. The Department has consistently failed to act on the recommendations of the

Ombudsman to release individual asylum seekers and refugees from detention. Furthermore,

the Department’s Detention Review Committee is not an independent body.

86.

The source further states that the ruling in Al-Kateb v. Godwin reinforces the position

of Mr. Laltu, as his arbitrary open-ended detention is authorized by Australian law.

87.

The source asserts that the review mechanisms available to Mr. Laltu mentioned in

the Government’s reply concern the decision-making process relating to the granting of a

visa rather than Mr. Laltu’s detention.

Discussion

88.

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

detailed submissions.

89.

In determining whether the deprivation of liberty of Mr. Laltu 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 the

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest with 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).

90.

The source has submitted, and the Government has not disputed, that Mr. Laltu arrived

in Australia in November 2012 by boat. The Government submits that he was detained on 12

November 2012 and transferred to the detention centre on Christmas Island. The Department

of Immigration and Citizenship was the detaining authority and the reason for the arrest was

unauthorized entry to Australia by boat. Since then, he has remained in immigration detention

as an unlawful non-citizen. The Government contends that article 14 of the Universal

Declaration of Human Rights, while proclaimed by the General Assembly, does not create

binding legal obligations on signatories. Notwithstanding this, the Government submits that

Mr. Laltu is lawfully detained under section 189 of the Migration Act as an unlawful non-

citizen.

1 See AJL20 v. Commonwealth of Australia (2020). Available at https://jade.io/article/764869.

A/HRC/WGAD/2020/70

11

91.

The Government rejects the claim of a breach of article 26 of the Covenant since the

object of the Migration Act is to regulate the arrival of non-citizens in Australia and therefore,

by definition, it does not apply to citizens. The Government points to the Human Rights

Committee’s general comment No. 15 (1986) in which it made clear that the Covenant does

not recognize the right of aliens to enter or reside in the territory of a State party and that the

State, in principle, is free to decide who it will admit to its territory.

92.

The Working Group observes that it is not disputed that Mr. Laltu has been in

immigration detention for over eight years now. According to the Government, on 15 January

2013, the Department initiated consideration of Mr. Laltu’s case under the section 195A

ministerial intervention guidelines. This was finalized without referral to the Minister as the

case was found not to meet the guidelines on 25 January 2013. Thereafter, there was no action

in Mr. Laltu’s case until 11 August 2015, when he was allowed to apply for a visa. This was

followed by a series of visa applications, all unsuccessful, and challenges to these

unsuccessful applications. Throughout this time and to date, Mr. Laltu remains detained.

93.

As the Working Group explained in its revised deliberation No. 5 (A/HRC/39/45,

annex, para. 12): “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 their claims or

initial verification of identity if in doubt.”

94.

This echoes the views of the Human Rights Committee, which argued 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.

95.

In the present case, Mr. Laltu was detained immediately upon arrival and has remained

detained for over eight years. When his case was examined on 15 January 2013, it is clear to

the Working Group that the Government did not engage in the assessment of the need to

detain Mr. Laltu and there was no attempt to ascertain if a less restrictive measure would be

suited to his individual circumstances, as required by international law. In fact, throughout

his time in Australia, there has never been an attempt on the part of the Australian authorities

to do so. The Working Group cannot accept that detention for over eight years could be

described as a “brief initial period”, to use the language of the Human Rights Committee.

Furthermore, the Government has not presented any particular reason specific to Mr. Laltu,

such as an individualized likelihood of absconding, a danger of crimes against others or a

risk of acts against national security, that would have justified his detention.

96.

These two failures on behalf of the Government lead the Working Group to conclude

that there was no other reason for detaining Mr. Laltu but the fact that he was an asylum

seeker and was therefore subjected to the automatic immigration detention policy of Australia

under the Migration Act. The Working Group therefore concludes that Mr. Laltu was

detained due to the exercise of his legitimate rights under article 14 of the Universal

Declaration of Human Rights.

97.

Furthermore, while the Working Group agrees with the argument presented by the

Government in relation to article 26 of the Covenant, it must nevertheless highlight that in

the same general comment quoted by the Government, No. 15 (1986), the Human Rights

Committee also makes it clear that “aliens receive the benefit of the general requirement of

non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in

article 2 thereof” (para. 2) and that “aliens have the full right to liberty and security of the

person” (para. 7).2

98.

This means that Mr. Laltu is entitled to the right to liberty and security of person as

guaranteed under article 9 of the Covenant and that when guaranteeing these rights to him,

2 Revised deliberation No. 5, paras. 2 and 7.

A/HRC/WGAD/2020/70

12

Australia must ensure that this is done without distinction of any kind as required by article

2 of the Covenant. In the present case, Mr. Laltu is subjected to de facto indefinite detention

due to his immigration status, in clear breach of article 2, in conjunction with article 9, of the

Covenant.

99.

Consequently, noting that Mr. Laltu has been detained due to the legitimate exercise

of his rights under article14 of the Universal Declaration of Human Rights and articles 2 and

9 of the Covenant, the Working Group finds his detention arbitrary, falling under category II.

In making this finding, the Working Group notes the submission of the Government that Mr.

Laltu has always been treated in accordance with the stipulations of the Migration Act. Such

treatment is not compatible with the obligations Australia has undertaken under international

law (see also paras. 114–116 below). The Working Group also refers the present case to the

Special Rapporteur on the human rights of migrants for appropriate action.

100.

The source has further argued that Mr. Laltu has been subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy.

The Government denies those 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 and that the case of Mr. Laltu has been reviewed by the

Commonwealth Ombudsman and the Detention Review Committee.

101.

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.3 That right, which in fact constitutes a peremptory norm of international law, applies

to all forms of deprivation of liberty4 and applies to all situations of deprivation of liberty,

including not only to detention for purposes of criminal proceedings but also migration

detention.5

102.

The facts of Mr. Laltu’s case since his detention on 12 November 2012, as presented

to the Working Group, are characterized by various visa applications, their rejections and

challenges to these rejections. However, as observed above, none of these have concerned

the need to detain Mr. Laltu. There have also been numerous reviews by the Case

Management and Detention Review Committee, which, according to the Government, have

repeatedly examined the legality and reasonableness of Mr. Laltu’s detention. However, as

the Working Group has already clearly stated in its previous opinions,6 the Case Management

and Detention Review Committee is not a judicial body as required by article 9 (4) of the

Covenant. The Working Group observes the repeated failure on the Government’s part 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.7

103.

The Government has also argued that the case of Mr. Laltu is being periodically

reviewed by the Commonwealth Ombudsman. However, once again, in doing so, the

Government has not explained how such review satisfies the requirement of article 9 (4) for

a review of legality of detention by a judicial body. The Working Group is particularly

mindful that the Commonwealth Ombudsman has no power to compel the Department to

release a person from immigration detention.

104.

The Government has also argued that the Minister has reviewed Mr. Laltu’s detention,

but once again, noting that this is a review by an executive, the Working Group observes that

it does not satisfy the criteria of article 9 (4) of the Covenant.

105.

The Working Group therefore concludes that during his eight years of detention, no

judicial body has ever been involved in the assessment of the legality of Mr. Laltu’s

3 HRC/30/37, paras. 2–3.

4 Ibid., para. 11.

5 Ibid., para. 47 (a).

6 Opinions No. 20/2018, para. 61, No. 50/2018, para. 77, No. 74/2018, para. 112, and No. 1/2019, para.

80.

7 Opinions No. 20/2018, para. 61, No. 50/2018, para. 77, No. 74/2018, para. 112, and No. 1/2019, para.

80.

A/HRC/WGAD/2020/70

13

detention, noting that such consideration by a judicial body would necessarily involve the

assessment of the legitimacy, need and proportionality to detain.8

106.

In this connection, the Working Group wishes once again return to the argument

presented by the Government that continuing detention in the context of migration is lawful

under international law as long as the grounds for detention are justifiable and that the length

of detention is not a determining factor. 9 In the view of the Working Group, this is a

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

reiterates that indefinite detention of individuals in the course of migration proceedings

cannot be justified and is arbitrary,10 which is why the Working Group has required that a

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

legislation and upon the expiry of the period for detention set by law, the detained person

must be automatically released.11

107.

The Working Group rejects the argument that the length of detention in itself is not a

determining factor and that as long as reasons justifying detention are present, the detention

may legally continue. To follow this logic would mean accepting that individuals could be

caught up in an endless cycle of periodic reviews of their detention without any prospect of

actual release. This is a situation akin to indefinite detention which cannot be remedied even

by the most meaningful review of detention on an ongoing basis.12 As the Working Group

stated in its revised deliberation No. 5 (para. 27):

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-refoulement;13 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.14

108.

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.15 Moreover, as the Working Group noted in its revised deliberation No. 5,

detention in the context of migration must be exceptional (para. 12) and in order to ensure

this, alternatives to detention must be sought (para. 16).16 In the case of Mr. Laltu, the

Working Group has already established that since his detention on 12 November 2012, no

alternatives to detention have been considered.

109.

Moreover, despite the claims of the Government to the contrary, the Working Group

considers that Mr. Laltu’s detention is in fact punitive in nature. As the Working Group notes

in its revised deliberation No. 5, this should never be the case (paras. 9 and 14).17 Mr. Laltu

8 Revised deliberation No. 5, paras. 12–13.

9 Opinions No. 74/2019, paras. 69–70, and No. 35/2020, paras. 90–91.

10 Revised deliberation No. 5, para. 18, opinions No. 28/2017, No. 42/2017, No. 7/2019 and No.

35/2020 and A/HRC/13/30, para. 63.

11 Revised deliberation No. 5, para. 25, A/HRC/13/30, para. 61, and opinion No. 7/2019.

12 See opinions No. 1/2019 and No. 7/2019.

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

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

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

15 See Mr. C. v. Australia (CCPR/C/76/D/900/1999); Baban and Baban v. Australia

(CCPR/C/78/D/1014/2001); Shafiq v. Australia (CCPR/C/88/D/1324/2004); Shams et al. v. Australia

(CCPR/C/90/D/1255,1256,1259,1260,1266,1268,1270 and 1288/2004); Bakhtiyari et al. 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).

16 A/HRC/13/30, para. 59, E/CN.4/1999/63/Add.3, para. 33, A/HRC/19/57/Add.3, para. 68 (e),

A/HRC/27/48/Add.2, para. 124, A/HRC/30/36/Add.1, para. 81, and opinions No. 72/2017 and No.

21/2018.

17 Opinion 49/2020, para. 87.

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has been detained for over eight years, without charge or a trial, in what was clearly a punitive

detention, in breach of article 9 of the Covenant.

110.

Although the Government submits that Mr. Laltu’s case is being processed for

involuntary removal, the Working Group observes that such a decision, according to the

Government, was taken on 20 January 2020. Yet Mr. Laltu remains detained and has been

since 12 November 2012. This is clearly a case of indefinite detention. However, as stated in

revised deliberation No. 5, indefinite detention of individuals in the course of migration

proceedings cannot be justified and is arbitrary (para. 26).18 This is why the Working Group

has required that a maximum detention period in the course of migration proceedings is set

by legislation, and that such detention is permissible only for the shortest period of time.19

Mr. Laltu has no clear prospect of when he could be released; even the Government has been

unable to make any indication in that regard in its reply to the Working Group.

111.

Consequently, the Working Group finds that Mr. Laltu is subjected to de facto

indefinite detention due to his migratory status, without the possibility to challenge the

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

Covenant. Mr. Laltu’s detention of is therefore arbitrary, falling under category IV. In making

this finding, the Working Group 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.20

112.

The Working Group notes the argument presented by the source that, as a non-citizen,

Mr. Laltu appears to be in a different situation from Australian citizens in relation to his

ability to effectively challenge the legality of his detention before the 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 that

case, 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 were not

reasonably practicable in the foreseeable future, were valid.

113.

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

Government in relation to the High Court’s decision on numerous previous occasions and

that it has been rejected by the Working Group.21 This explanation 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 were not reasonably practicable in the foreseeable

future.

114.

The Working Group has noted that the Government does not explain how such non-

citizens can effectively challenge their continued detention after this decision of the High

Court, which is what the Government must show in order to comply with articles 9 and 26 of

the Covenant. To this end, the Working Group once again recalls the jurisprudence of the

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

judgment in the case of Al-Kateb v. Godwin and concluded that the effect of that judgment

was that there was no effective remedy to challenge the legality of continued administrative

detention.22

115.

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

Committee on this matter,23 and this remains the position of the Working Group in the present

18 A/HRC/13/30, para. 63, and opinions No. 42/2017 and No. 28/2017.

19 Revised deliberation No. 5, para. 26; opinions No. 5/2009 and No. 42/2017; E/CN.4/1999/63/Add.3,

para. 35; and A/HRC/33/50/Add.1, paras. 49–50.

20 See Mr. C. v. Australia; Baban and Baban v. Australia; Shafiq v. Australia; Shams et al. v. Australia;

Bakhtiyari et al. v. Australia; D and E and their two children v. Australia; Nasir v. Australia; and F.J.

et al. v. Australia.

21 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, No. 74/2019, para. 72, and No. 35/2020, paras. 95–96.

22 See F.J. et al. v. Australia.

23 See 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, No. 74/2019 and No. 35/2020.

A/HRC/WGAD/2020/70

15

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. Laltu is arbitrary,

falling under category V.

Migration Act 1958

116.

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

from Australia that have come before the Working Group since 2017 which have all

concerned the same issue, namely mandatory immigration detention in Australia under the

Migration Act.24 The Working Group reiterates its views on the Migration Act as expressed

most recently in opinion No. 35/2020 (paras. 98–103).

117.

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

concerning the implementation of this Act that are being brought to its attention. 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 an argument can never be accepted as legitimate

in international human rights law. The fact that a State is following its own domestic

legislation does not in itself prove that that legislation is in accordance with the obligations

the State has undertaken under international human rights law. A State cannot legitimately

avoid its obligations arising from international human rights law by evoking its domestic

laws and regulations.

118.

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

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

obligations under international human rights law. Since 2017, the Government has been

consistently and repeatedly reminded of these obligations by numerous international human

rights bodies, including the Human Rights Committee,25 the Committee on Economic, Social

and Cultural Rights,26 the Committee on the Elimination of Discrimination against Women,27

the Committee on the Elimination of Racial Discrimination, 28 as well as the Special

Rapporteur on the human rights of migrants29 and the Working Group.30 The Working Group

once again reiterates the voices of these independent international human rights mechanisms

and calls upon the Government to urgently review this legislation in the light of its obligations

under international human rights law without delay.

119.

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 global coronavirus disease (COVID-19) pandemic, the Working Group

looks forward to carrying out the visit as soon as 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

120.

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

The deprivation of liberty of Mr. Laltu, being in contravention of articles 2, 3, 7, 8, 9

and 14 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 II, IV and V.

121.

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

to remedy the situation of Mr. Laltu without delay and to bring it into conformity with the

24 See 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, No. 74/2019 and No. 35/2020.

25 CCPR/C/AUS/CO/6, paras. 33–38.

26 E/C.12/AUS/CO/5, paras. 17–18.

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

28 CERD/C/AUS/CO/18-20, paras. 29–33.

29 A/HRC/35/25/Add.3.

30 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, No. 74/2019, para. 80, and No. 35/2020, paras. 98–103.

A/HRC/WGAD/2020/70

16

relevant international norms, including those set out in the Universal Declaration of Human

Rights and the International Covenant on Civil and Political Rights.

122.

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

case, the appropriate remedy would be to release Mr. Laltu immediately and accord him an

enforceable right to compensation and other reparations, in accordance with international

law. In the current context of the global 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. Laltu.

123.

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

of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Laltu and to take

appropriate measures against those responsible for the violation of his rights.

124.

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.

125.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

126.

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

(b)

Whether compensation or other reparations have been made to Mr. Laltu;

(c)

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

127.

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.

128.

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.

129.

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.31

[Adopted on 24 November 2020]

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