A/HRC/WGAD/2022/33

GE.22-07158(E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-third session, 30 March–8 April 2022

Opinion No. 33/2022 concerning Wissam Jadiri (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,1 on 15 December 2021 the Working Group

transmitted to the Government of Australia a communication concerning Wissam Jadiri. The

Government replied to the communication on 16 March 2022. 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 case.

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2022/33

General Assembly

Distr.: General

13 May 2022

Original: English

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Submissions

Communication from the source

4.

Wissam Jadiri is a Feyli Kurdish man, born in Basrah, Iraq, in 1977. He holds a white

card issued by the Iranian Office for Foreigners and Immigrants, which he obtained following

his deportation to the Islamic Republic of Iran.

5.

According to the source, Mr. Jadiri’s father and uncle were jailed multiple times from

1979 to 1981, before and after Saddam Hussein’s Decree No. 666 of May 1980, which

legalized and ordered the confiscation of property and the forced deportation and detention

of Feyli Kurds. In 1981, as a 4-year-old, Mr. Jadiri was reportedly jailed with his family in

Basrah Prison for seven months and in Baghdad Prison for 11 months. The source details the

constant violence, abuse and torture that Mr. Jadiri suffered while there.

6.

The source explains that, in 1982, Mr. Jadiri and his family were deported to the

Islamic Republic of Iran and forced to live in a detention camp run by the Red Cross and then

the Ministry of the Interior, until an amnesty enabled them to leave. The family’s recorded

date of departure is 2 January 1994, when Mr. Jadiri was 16 years old.

a.

Arrest and detention

7.

According to the source, the Royal Australian Navy arrested Mr. Jadiri on 17 August

2013, in Australian territorial waters, north of Darwin, for entering Australia by boat without

authorization. The arresting officers did not show a warrant or other decision from a public

authority, but they were identifiable by their uniform and the markings on their ship. The

source notes that the arrest decision was issued by the Department of Immigration and

Citizenship (subsequently subsumed into the Department of Home Affairs).

8.

The source reports that Mr. Jadiri arrived in Australian territorial waters on a boat

travelling from Indonesia, on or about 15 August 2013. The boat was reportedly intercepted

by the Australian Navy and Mr. Jadiri was taken to Christmas Island on 17 August 2013 and

held in North-West Point Immigration Detention Centre. Mr. Jadiri has reportedly been held

in closed detention since 17 August 2013.

9.

According to the source, over the course of his detention, Mr. Jadiri has been

frequently transferred between North-West Point and Yongah Hill Immigration Detention

Centres for medical treatment and “operational reasons”.

10.

In March 2015, Mr. Jadiri was reportedly transferred to Casuarina Prison for 10 days,

after breaking a window at Yongah Hill Immigration Detention Centre. Mr. Jadiri allegedly

witnessed guards forcibly restraining and assaulting an older detainee in the centre’s

recreation area for more than five minutes. The compound gates being locked, Mr. Jadiri

broke a window in frustration and distress. He was advised to plead guilty and was convicted

and released without a sentence, on condition of good behaviour for six months and the

payment of a reparation fine of 820.60 Australian dollars.

11.

The source further explains that in November 2015, Mr. Jadiri was transferred from

North-West Point Immigration Detention Centre, on Christmas Island, to Casuarina Prison,

and then to Albany Prison, after riots erupted following the death of his close friend. Mr.

Jadiri was reportedly charged with spitting at a guard and spent eight months in prison during

the investigations of the riots. He was reportedly advised to plead guilty and given a good

behaviour bond of 12 months.

12.

The source reports that Mr. Jadiri is being detained by the Department of Home

Affairs in Yongah Hill Immigration Detention Centre, 100 kilometres north-east of Perth, in

Western Australia. The source notes that, in 1997, various aspects of the operation of

Australian onshore detention centres were privatized, and that service provision is currently

primarily contracted to Serco, for security and garrison services, and International Health and

Medical Services, for medical services.

13.

According to the source, Mr. Jadiri was arrested on the basis of the Migration Act

1958, which specifically provides that unlawful non-citizens must be detained and kept in

detention until they are removed or deported from Australia or are granted a visa (sects. 189

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(1), 196 (1) and 196 (3)). Section 196 (3) provides that even a court cannot release an

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

explains that for a person to be able to apply for protection, they must first be invited to do

so under section 46A of the Migration Act, a process often referred to as “lifting the bar”.

Further, for relief from detention to be granted ahead of a protection decision, the Minister

must lift the bar under section 195A of the Migration Act. The source adds that Mr. Jadiri

remains detained as an unauthorized maritime arrival and an unlawful non-citizen under the

Migration Act.

14.

Over the course of Mr. Jadiri’s detention, his case managers have filed numerous

bridging visa applications for ministerial consideration under section 195A of the Migration

Act 1958. All applications have reportedly been rejected.

15.

On 17 August 2013, upon his arrival in Australia, Mr. Jadiri was reportedly barred

from applying for a visa under section 46A of the Migration Act 1958, until 29 September

2015, when the Minister lifted the bar. On 14 March 2017, the Department of Home Affairs

rejected Mr. Jadiri’s application for a safe haven enterprise visa and advised him that the

decision had been referred to the Immigration Assessment Authority.

16.

On 23 March 2017, the Immigration Assessment Authority advised Mr. Jadiri that the

Department of Home Affairs had provided all documents that it considered relevant to his

case, though these documents were not identified. The Immigration Assessment Authority

stated that a decision would be made on the basis of that material, unless it decided “to

consider new information”, but that this could only happen “in limited circumstances”. On

12 May 2017, Mr. Jadiri reportedly received a letter from the Immigration Assessment

Authority affirming the Department’s decision, on the basis of the material referred by the

Secretary under section 473CB of the Migration Act 1958. The source notes that the material

was not particularized. The Department allegedly identified the material provided to the

Immigration Assessment Authority only when Mr. Jadiri sought judicial review of the latter’s

decision, in 2017. It included 48 pages of material relating to his behaviour in detention,

unspecified investigations into security issues, and the fact that he had been considered for

release from detention on a bridging visa E “on several occasions”. The source reports that

Mr. Jadiri has never seen or had a chance to respond to these documents.

17.

Further, the source explains that on 8 November 2017, the Federal Circuit Court

dismissed Mr. Jadiri’s application for judicial review of the decision by the Immigration

Assessment Authority. On 21 September 2018, the Federal Court dismissed Mr. Jadiri’s

appeal. However, on 13 December 2019, the High Court of Australia upheld his appeal on

the grounds of apprehended bias and quashed the 2017 decision by the Immigration

Assessment Authority. Reportedly, the judgment directed that irrelevant and prejudicial

material be removed from Mr. Jadiri’s file, which should then be returned to a differently

constituted review panel of the Immigration Assessment Authority. On 19 December 2019,

Mr. Jadiri received a letter from the Immigration Assessment Authority, noting that his case

had been remitted to it for reconsideration and that Mr. Jadiri’s submissions had been

received.

18.

On 15 January 2020, the Immigration Assessment Authority contacted Mr. Jadiri’s

counsels, informed them of the High Court’s judgment and invited them to comment on it.

The judgment reportedly contained extensive references to the existence of irrelevant and

prejudicial material in Mr. Jadiri’s file. The source notes that between 20 January and early

February 2020, the Immigration Assessment Authority and Mr. Jadiri’s counsels

corresponded to address the issue of the breach by the Department of Home Affairs of the

High Court’s orders and what it meant for the progress of the review. On 26 November 2021,

the Federal Court held that the second instance of sharing irrelevant and prejudicial

information with the Immigration Assessment Authority constituted a choice by the

Secretary. The Federal Court’s decision was reserved and is expected within weeks.

19.

The source further reports that, on 4 February 2020, the Immigration Assessment

Authority affirmed the decision of the Department of Home Affairs to deny Mr. Jadiri a

protection visa. Another application for a bridging visa was filed but, given the Immigration

Assessment Authority’s refusal in 2020 to recognize Mr. Jadiri’s refugee status, the source

notes that it is unclear on what basis such a visa would be granted.

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20.

The source explains that, under section 195A of the Migration Act 1958, a detainee

waiting for the outcome of an immigration application and appeal is eligible for relief from

detention at the Minister’s discretion. While Mr. Jadiri has filed several such applications

during his detention, all have been refused without justification. Reportedly, despite the

success of his High Court action on 13 December 2019, Mr. Jadiri has still received no

response to his bridging visa application that was referred to the Minister on or after 23

December 2019.

21.

The source notes that, on the morning of 23 December 2020, Mr. Jadiri met with his

case manager who confirmed that a further bridging visa application had been referred to the

Minister. In February 2021, Mr. Jadiri’s partner received confirmation that the referral had

met ministerial guidelines and would be reviewed by the Minister. However, on 15 December

2021, the Minister declined to intervene.

22.

According to the source, Mr. Jadiri’s medical records with International Health and

Medical Services detail his mental health upon his arrival in Australia in 2013. It reportedly

includes diagnoses of complex post-traumatic stress disorder, detention fatigue, anxiety and

chronic grief within weeks and months of his arrival. The source notes that the behavioural

issues detailed in Mr. Jadiri’s detention records are consistent with symptoms of complex

post-traumatic stress disorder, including difficulties with emotional regulation, destructive or

risky behaviour, loss of trust in others, dissociation and difficulty concentrating. The source

observes that the Department of Home Affairs did not make a connection with his diagnosis

with complex post-traumatic stress disorder until his High Court submission in 2019, in

which it was noted, under the heading “Behaviour”, that Mr. Jadiri had a history of aggressive

and/or challenging behaviour when engaging with the Department, possibly attributable to

frustration from being held in detention or to his mental health conditions.

23.

The source reports that the debilitating impact of detention on Mr. Jadiri, especially

when confronted with handcuffs and aggressive behaviour by guards, was outlined in regular

correspondence and representations over a three-year period (2017–2020) by specialized

legal and medical professionals to all levels of the immigration bureaucracy – from detention

administration through to the Minister – and to regulatory bodies including the

Commonwealth Ombudsman, the Red Cross and the Australian Human Rights Commission.

Reportedly, in 2019 the correspondence included a request for ministerial intervention, a

complaint to the Australian Human Rights Commission under the Disability Discrimination

Act 1992, and an investigation into a personal injury claim (excessive use of force) by the

Public Interest Advocacy Centre.

24.

Additionally, the source reports that, in December 2020, Mr. Jadiri’s torture and

trauma counsellor informed him that she could no longer assist him due to the severity of his

symptoms, which include visual and auditory hallucinations. The counsellor reportedly

referred him to a psychiatrist but, after one appointment, Mr. Jadiri refused a prescription by

International Health and Medical Services staff of high-dose antipsychotics and

antidepressants by depot injection, asserting that his detention was the main issue and that

medication would be “worse than the voices”.

25.

The source observes that Mr. Jadiri remains in detention despite having raised

extensive concerns about the damage of closed detention on his mental and physical health.

26.

The source submits that Mr. Jadiri is stateless and unable to return voluntarily or

involuntarily to Iraq, which refuses to recognize him as a citizen. Further, owing to the

deteriorating security situation in Iraq, Mr. Jadiri’s family reportedly moved to a more secure

location and resides in a small apartment with no room for an additional person. The source

adds that, as it is Feyli Kurdish, Mr. Jadiri’s family remains vulnerable to persecution and

discrimination.

27.

Further, the source alleges that Australian law and policy do not have targeted and

effective measures to deal humanely with stateless people. Reportedly, an increasing number

of stateless people are detained in Australia, with no legal mechanisms to secure their release.

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b.

Legal analysis

i.

Category I

28.

According to the source, because the ministerial powers under section 195A of the

Migration Act 1958 are non-compellable and non-reviewable, there is no correspondence or

other feedback that outlines the reasons for keeping Mr. Jadiri in closed detention against the

advice and recommendations of medical and legal professionals.

29.

The source reports that Mr. Jadiri has been held in Western Australia, including

Christmas Island, since July 2016. Mr. Jadiri has reportedly made multiple requests to be

relocated to Melbourne, where his partner, an Australian citizen, lives with her children.

However, these requests and independent expert recommendations have all been denied,

despite several reports by mental health professionals who have treated and/or assessed Mr.

Jadiri and a report by a trauma psychologist who had treated his partner for 18 months.

30.

The source argues that, given these recommendations and the length of Mr. Jadiri’s

detention, there is no reasonable explanation as to why he cannot reside in the community

with his partner.

31.

In its judgment of 13 December 2019, the High Court reportedly established

“reasonable apprehension of bias” when it found that the review of Mr. Jadiri’s protection

visa decision in 2017 had been “infected” with irrelevant and prejudicial information that had

been shared with the Immigration Assessment Authority by the Secretary of the Department

of Home Affairs, contrary to section 473CB (1) (c) of the Migration Act 1958. Allegedly,

despite the High Court’s specific instructions, the Department of Home Affairs once again

shared irrelevant and prejudicial information with the Immigration Assessment Authority.

On 4 February 2020, the Immigration Assessment Authority upheld the rejection by the

Department of Home Affairs of Mr. Jadiri’s application for a safe haven enterprise visa.

32.

The source therefore submits that Mr. Jadiri’s detention is arbitrary under category I.

ii.

Category II

33.

The source argues that Mr. Jadiri was deprived of his liberty because of the exercise

of his rights guaranteed under article 14 of the Universal Declaration of Human Rights. The

source contends that Mr. Jadiri came to Australia in 2013 to seek asylum after a lifetime of

persecution, initially as an “enemy of the State”, under Saddam Hussein’s Decree No. 666,

and then in the Islamic Republic of Iran, where he lived from the ages of 6 to 36 years,

through the deprivation of basic rights, such as access to a driver’s licence, insurance, tertiary

education and public-sector employment.

34.

The source further submits that Mr. Jadiri has been deprived of his rights to equal

protection under the law, without discrimination, as enshrined under article 26 of the

Covenant.

35.

The source notes that according to the Department of Home Affairs, immigration

detention facilities “are used as a last resort and for a very small proportion of people whose

status requires resolution, sometimes through protracted legal proceedings”. 2 The source

submits that this principle does not accord with section 189 of the Migration Act 1958, which

requires the detention of unlawful non-citizens.

36.

The source stresses that, in a case review in March 2016, despite Mr. Jadiri’s history

of trauma and mental health conditions having been recorded within weeks of his arrival in

Australia, the Department of Home Affairs considered that Mr. Jadiri’s involvement in

various incidents while in detention was a barrier to the resolution of the case. However, in

2019, the Minister had reportedly argued in a submission to the High Court that the character-

related information shared with the Immigration Assessment Authority was not in fact

prejudicial.

2 Australia, Department of Home Affairs, Annual Report 2018–19 (Canberra, 2019), p. 22.

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37.

In this regard, the source notes that a reference in the case file to Mr. Jadiri being “no

longer of interest to Det Intel” was characterized as being “positive in character”,3 and that a

reference to Mr. Jadiri having been interviewed by the National Security Monitoring Section

included nothing about why that interview had been held, and so could not lead to any

inference on the part of a reasonable observer. The source also stresses that references to

investigations into a riot on Christmas Island did not specify that Mr. Jadiri himself was under

investigation, and a reference to his history of aggressive or challenging behaviour was

explained with reference to Mr. Jadiri’s mental health.

38.

The source therefore submits that Mr. Jadiri’s detention is arbitrary under category II.

iii.

Category III

39.

According to the Human Rights Committee, in its general comment No. 35 (2014),

on liberty and security of person, immigration detention must be justified as reasonable,

necessary and proportionate in the light of the circumstances, and reassessed as it extends in

time.

40.

The Minister has personal discretion to provide relief from detention at any point, but

has reportedly not chosen to do so, even following the success of Mr. Jadiri’s High Court

appeal. Given that Mr. Jadiri’s counsel made particular mention of his clean detention record

at a meeting on 23 December 2019, the source argues that his detention is not warranted or

proportionate.

41.

Further, the source submits that there is no evidence that an independent assessment

of the appropriateness of Mr. Jadiri’s detention, as it extends in time, has been undertaken.

42.

The source therefore submits that Mr. Jadiri’s detention is arbitrary under category

III.

iv.

Category IV

43.

The source submits that, while the Minister may provide relief from detention to

asylum seekers under section 195A of the Migration Act 1958, Mr. Jadiri has been

consistently denied such relief. His most recent bridging visa application was reportedly

referred to the Minister in December 2019, but no response has been received.

44.

Additionally, the source underlines that the High Court has held that the mandatory

detention of non-citizens is not contrary to the Constitution,4 despite the Human Rights

Committee having held that people subject to mandatory detention in Australia have no

effective remedy.5

45.

The source therefore submits that Mr. Jadiri’s detention is arbitrary under category

IV.

v.

Category V

46.

The source contends that citizens and non-citizens are not equal before Australian

courts and tribunals. The source recalls the 2004 decision of the High Court in Al-Kateb v.

Godwin to the effect that detention of non-citizens pursuant to section 189 of the Migration

Act 1958, inter alia, does not contravene the Constitution. As a result of that decision,

Australian citizens are able to challenge administrative detention, while non-citizens are not.

47.

The source therefore concludes that Mr. Jadiri’s detention is arbitrary under category

V.

3 The High Court noted in its judgment that there was “no identification of what, exactly, ‘Det Intel’

referred to”. High Court of Australia, CNY17 v. Minister for Immigration and Border Protection,

[2019] HCA 50, Order, 13 December 2019, para. 81.

4 High Court of Australia, Al-Kateb v. Godwin, (2004) 219 CLR 562, Order, 6 August 2004.

5 See Human Rights Committee, C. v. Australia (CCPR/C/76/D/900/1999).

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Response from the Government

48.

On 15 December 2021 the Working Group transmitted the source’s allegations to the

Government under its regular communications procedure. The Working Group requested that

the Government provide, by 14 February 2022, detailed information about the current

situation of Mr. Jadiri and clarify the legal provisions justifying his continued detention, as

well as its compatibility with the obligations of Australia under international human rights

law, and in particular with regard to the treaties ratified by the State. Moreover, the Working

Group called upon the Government to ensure Mr. Jadiri’s physical and mental integrity.

49.

On 22 December 2021, the Government requested an extension in accordance with

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

deadline of 16 March 2022.

50.

On 16 March 2022, the Government submitted its reply. It explains that Mr. Jadiri is

an Iraqi national who entered Australia by sea on 17 August 2013, without a visa. As a result,

he became an unauthorized maritime arrival, as defined in section 5AA of the Migration Act

1958, and was detained under section 189 of the Migration Act. Mr. Jadiri is currently being

held at Yongah Hill Immigration Detention Centre.

51.

Throughout his detention, Mr. Jadiri has allegedly been involved in 37 incidents of

abusive and aggressive behaviour and 15 incidents of minor damage to Commonwealth

property, and has been recorded as the alleged offender of 12 minor assaults against staff

and/or other detainees. Mr. Jadiri was also involved in seven incidents of illicit substance

abuse and possession of drug-related contraband.

52.

On 20 March 2015, Mr. Jadiri reportedly caused damage to property during a major

disturbance in Yongah Hill Immigration Detention Centre. Upon referral to the Australian

Federal Police, Mr. Jadiri pleaded guilty to “destroying or damaging Commonwealth

property” and was transferred to Casuarina Prison from 20 March until 28 March 2015. He

was convicted and sentenced under section 20 (1) (a) of the Crimes Act 1914 to a six-month

good behaviour bond with a personal recognizance of 500 Australian dollars and a reparation

order of $820.60 dollars.

53.

On 23 May 2017, the Department of Home Affairs commenced a ministerial

intervention process for Mr. Jadiri’s case to be assessed against guidelines on section 195A

of the Migration Act 1958 for referral to the Minister. On 21 July 2017, Mr. Jadiri’s case was

deemed to meet the guidelines.

54.

On 29 September 2015, the bar on section 46A of the Migration Act 1958 was lifted,

allowing Mr. Jadiri to make a valid application for a temporary protection visa or a safe haven

enterprise visa.

55.

On 9 November 2015, Mr. Jadiri allegedly spat on a staff member at North-West Point

Immigration Detention Centre, on Christmas Island, and was charged with “engaging in

conduct without consent, causing harm to a Commonwealth Public Official because of status

or duties as Official”. He was transferred to Casuarina Prison from 13 November 2015 until

5 July 2016. On 18 November 2016, he was found guilty and given a three-month suspended

prison sentence, with a 12-month good behaviour bond. He was released under paragraph 20

(1) (b) of the Crimes Act 1914.

56.

On 14 March 2017, his application for a safe haven enterprise visa was rejected on

the basis that his case did not engage the protection obligations of Australia, under section

65 of the Migration Act 1958. The Immigration Assessment Authority and the Federal Court

upheld the decision on 12 May and 8 November 2017 respectively. On 21 September 2018,

Mr. Jadiri’s appeal to a full bench of the Federal Court was dismissed. However, on 17 May

2019, the High Court granted him special leave to appeal.

57.

On 26 October 2017 and 29 August 2019 respectively, the then Minister for

Immigration and Border Protection and the Minister for Home Affairs declined to intervene

to grant Mr. Jadiri a bridging visa E.

58.

On 13 December 2019, the High Court ordered the Immigration Assessment

Authority to reconsider its decision. Upon reconsideration, on 4 February 2020, the

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Immigration Assessment Authority affirmed its refusal to grant Mr. Jadiri a safe haven

enterprise visa.

59.

On 22 June 2020 and 22 April 2021, the Department of Home Affairs assessed Mr.

Jadiri’s case and found that it did not meet the guidelines for referral for ministerial

intervention under sections 195A or 197AB of the Migration Act 1958.

60.

On 19 May 2021, the Federal Circuit Court dismissed Mr. Jadiri’s request for a review

of the Immigration Assessment Authority’s decision. The Federal Court dismissed Mr.

Jadiri’s appeal on 16 December 2021. The Government notes that the deadline for Mr. Jadiri

to file an application for special leave to the High Court has passed, and Australia will

therefore progress his removal. It is noted that his removal to Iraq will likely be protracted

owing to delays in obtaining travel documents and to international travel restrictions.

61.

The Government reports that Mr. Jadiri has no ongoing matters before the Department

of Home Affairs.

62.

Turning to Mr. Jadiri’s health, the Government notes that the Department of Home

Affairs continues to prioritize the health and safety of all persons in immigration detention.

Health examinations are routinely conducted by the International Health and Medical

Services to monitor detainees’ health and welfare. Psychological consultations are also

undertaken as necessary to assess and monitor the mental health of detainees. Detainees have

access to external scrutiny bodies that oversee the operations of immigration detention

facilities.

63.

The Department of Home Affairs is reportedly aware of Mr. Jadiri’s mental health

conditions, including his complex post-traumatic stress disorder, past history of torture and

trauma, prolonged detention syndrome, anxiety, depression and grief. International Health

and Medical Services provided Mr. Jadiri with a psychiatrist and a torture and trauma

counsellor while in detention, and Mr. Jadiri has reported that his torture and trauma

counselling sessions twice a week have been helpful. Mr. Jadiri also engaged with the

specialized counselling services from the Association for Services to Torture and Trauma

Survivors. Reportedly, and contrary to the source’s claims, International Health and Medical

Services received no documentation from his torture and trauma counsellor stating that “she

could no longer assist him due to the severity of his symptoms” and never prescribed Mr.

Jadiri any depot injection. The Government submits that Mr. Jadiri has a history of non-

compliance with medication and declined antidepressant therapy in January 2017.

64.

On 2 August 2017, a mental health nurse, of International Health and Medical

Services, noted that Mr. Jadiri was showing signs of detention fatigue as he had had intrusive

thoughts and poor sleep, and discussed coping techniques with him.

65.

In late August 2017, Mr. Jadiri reported to a psychologist various symptoms, which,

in a follow-up review, the general practitioner identified as a likely result of post-traumatic

stress disorder. Medications were commenced to alleviate some of these symptoms.

66.

The Government explains that Mr. Jadiri was further examined on 7 May 2018,

following possible seizure activity and his noted anxiety, and the psychiatrist noted that he

had dependent personality traits. The general practitioner referred him for a psychiatric

assessment in September 2018.

67.

According to the Government, Mr. Jadiri declined to attend several of his

appointments with the International Health and Medical Services psychiatrist and with the

Association for Services to Torture and Trauma Survivors, and refused antidepressant

medication treatment and psychotropic medication that he had been prescribed. His

medication was reportedly ceased in November 2020 as Mr. Jadiri refused to take it, despite

having been informed of its potential beneficial effects and the need for consistency.

68.

The Government reports that International Health and Medical Services schedules a

routine mental health screening every three months, and that Mr. Jadiri did not attend his

appointments in December 2021 or February 2022. Mr. Jadiri’s mental health continues to

be monitored by the mental health and primary health teams of International Health and

Medical Services. He will continue to be offered routine mental health assessment

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9

appointments in accordance with his life care plan. Mr. Jadiri is aware of the self-referral

process should he require additional support.

69.

The Government submits that the universal visa system of Australia requires that all

non-citizens hold a valid visa to enter and/or remain in Australia. Under section 189 of the

Migration Act 1958, an individual must be detained where an officer knows or reasonably

suspects that the individual is an unlawful non-citizen. Under section 196, unlawful non-

citizens must be kept in immigration detention until they are removed from Australia or

granted a visa. Section 195A 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, and section 197AB

authorizes the Minister to make a residence determination to allow a person in immigration

detention to reside in the community at a specified place and under specified conditions,

again if the Minister considers that it is in the public interest. What is in the public interest is

a matter for the Minister to decide. Ministerial intervention is not an extension of the visa

process and occurs only where cases meet established ministerial guidelines. The Minister’s

powers under sections 195A and 197AB of the Migration Act are non-delegable and non-

compellable.

70.

The Government assesses valid applications for a protection visa. The domestic

legislation of Australia – namely the Migration Act 1958 – and its policies and practices

reflect its non-refoulement obligations under the Convention relating to the Status of

Refugees and the 1967 Protocol thereto, the Covenant and the Second Optional Protocol there,

aiming at the abolition of the death penalty, and the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment.

71.

Where a valid visa application is refused for not meeting the criteria, the petitioner

may have that decision reviewed through the domestic judicial processes in Australia. The

Government recalls that the High Court remitted Mr. Jadiri’s matter to the Immigration

Assessment Authority for reconsideration, and that the Immigration Assessment Authority

affirmed the refusal to grant a safe haven enterprise visa. The refusal decision was further

upheld by the Federal Circuit Court and the Federal Court. Accordingly, the Government

notes that the Immigration Assessment Authority’s decision was comprehensively reviewed

through the domestic judicial processes.

72.

The Government argues that the immigration detention of an individual because they

are an unlawful non-citizen is not arbitrary under international law if it is reasonable,

necessary and proportionate in the light of the individual’s particular circumstances, the

determining factor being whether the grounds for the detention, rather than the length of the

detention, are lawful and justifiable. Under the Migration Act 1958, detention is not limited

by a set time frame, but is dependent on a number of factors based on individualized

circumstances, including identity determination, developments in country information, and

health, character or security matters. The Government notes that immigration detention is a

last resort for the management of unlawful non-citizens.

73.

According to the Government, Mr. Jadiri is being lawfully detained in an immigration

centre as he is an unlawful non-citizen without a visa. Based on his individual circumstances,

immigration detention is considered the most appropriate form of detention. This position

has been reviewed twice through referral for consideration for a ministerial intervention

under the Migration Act 1958.

74.

As an unauthorized maritime arrival, Mr. Jadiri is prohibited under section 46A of the

Migration Act 1958 from making a valid visa application and will not be settled in Australia,

in accordance with government policy.

75.

The Government notes that immigration detention is administrative in nature and not

punitive. The Government is committed to ensuring that all individuals in immigration

detention are treated in accordance with the legal obligations of Australia. The Government

argues that Mr. Jadiri’s detention while the Department of Home Affairs handles his removal

is justifiable and not arbitrary, and is consistent with the Covenant.

76.

Furthermore, the Government explains that under section 486N of the Migration Act

1958, the Secretary of the Department of Home Affairs is required to provide the

Commonwealth Ombudsman with reports detailing the circumstances of individuals who

A/HRC/WGAD/2022/33

10

have been in immigration detention for a cumulative period of two years and every six

months thereafter. The Ombudsman prepares independent assessments of such individuals’

circumstances and provides the Minister with a report under section 486O of the Migration

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

regarding the individual’s detention. The Department has reported on Mr. Jadiri on 13

occasions, with the most recent report sent to the Ombudsman on 3 September 2021.

77.

The Government notes that a person in immigration detention may seek judicial

review of the lawfulness of his or her detention before the Federal Court or the Hight Court

of Australia, in accordance with paragraph 75 (v) of the Constitution and section 39B (1) of

the Judiciary Act 1903.

78.

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

provisions of the Migration Act 1958 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 Government submits that the decision in Al-Kateb v. Godwin does not

alter a non-citizen’s ability to challenge the lawfulness of his or her detention under

Australian law. The Government adds that non-citizens are also able to challenge the

lawfulness of their detention through actions such as habeas corpus.

79.

The Government denies that Mr. Jadiri was detained as a result of the exercise of his

rights under article 14 of the Universal Declaration of Human Rights. The Government

submits that the Universal Declaration of Human Rights does not create legally binding

obligations. Nevertheless, Mr. Jadiri is being detained because he is an unlawful non-citizen,

as required by section 189 of the Migration Act 1958, and not as a consequence of having

sought protection.

80.

Article 26 of the Covenant provides that all people are entitled to equal protection

under the law without any discrimination. The Government notes that the object of the

Migration Act 1958 is to regulate, in the national interest, the coming into, and presence in,

Australia of non-citizens. The purpose of the Migration Act is therefore to differentiate, on

the basis of nationality, between non-citizens and citizens. As the Human Rights Committee

has noted:

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 treatments and respect for family life

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

movement, residence and employment.6

81.

The Government submits that it is a matter for it to determine, consistent 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. In circumstances where a visa is not held, a non-citizen is subject to immigration

detention.

82.

The Government submits that, to the extent that there is differential treatment of

citizens and non-citizens in that citizens are not subject to immigration detention, this

differential treatment is not discriminatory or inconsistent with article 26 of the Covenant

because it is aimed at achieving a purpose that is legitimate, based on reasonable and

objective criteria, and that is proportionate to the aim sought.

83.

The Government submits that the differential treatment of citizens and non-citizens

under the Migration Act 1958 legitimately aims at ensuring the integrity of the migration

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

and protecting the Australian community, consistent with articles 12 and 13 of the Covenant.

The Government argues that such differentiation is reasonable because it is consistent with

those aims and no more restrictive than required.

6 Human Rights Committee, general comment No. 15 (1986), para. 5.

A/HRC/WGAD/2022/33

11

84.

According to the Government, Australia, as a party to the core international human

rights treaties, takes steps to respect, protect, promote and fulfil the right to non-

discrimination. However, the Government argues that equality and non-discrimination do not

require identical treatment of all persons in all circumstances, and that not all differences in

treatment constitute discrimination under international human rights law. The Government

submits that the treatment of Mr. Jadiri amounts to permissible legitimate differential

treatment, consistent with the obligations of Australia under the Covenant.

85.

The Government therefore submits that Mr. Jadiri’s immigration detention is lawful

and is reasonable, necessary and proportionate in the light of the circumstances. Mr. Jadiri is

therefore lawfully detained under section 189 of the Migration Act 1958, consistent with the

international obligations of Australia.

Further comments from the source

86.

On 16 March 2022 the reply of the Government was sent to the source for further

comments, which the source submitted on 24 March 2022. The source rejects the

Government’s reply as incompatible with the obligations of Australia under international

human rights law and reiterates its original submission that Mr. Jadiri’s detention is arbitrary

under international law.

Discussion

87.

The Working Group thanks the source and the Government for their submissions.

88.

In determining whether Mr. Jadiri’s deprivation of liberty of is arbitrary, the Working

Group has regard to the principles established in its jurisprudence to deal with evidentiary

issues. If the source has established a prima facie case for breach of the international law

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.7

Category I

89.

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

that it has been asked to consider in recent years in relation to Australia. This case, which

follows the same pattern and those that preceded it, is the twentieth case since 2017

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

Migration Act 1958.8 The Working Group once again reiterates its views on the Migration

Act.9

90.

As in each of those previous instances, the Working Group reiterates its alarm at the

rising number of cases emanating from Australia concerning the implementation of the

Migration Act 1958 that are being brought to its attention. The Working Group is equally

alarmed that in all these cases the Government has argued that the detention is lawful purely

because it follows the stipulations of the Migration Act.

91.

The Working Group once again wishes to emphasize that such arguments 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 the legislation conforms with the

obligations that the State has undertaken. No State can legitimately avoid its obligations

under international human rights law by citing its domestic laws and regulations. To accept

otherwise would be to make a mockery of international human rights law.

92.

The Working Group 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 human rights law. Since 2017, the Government has been consistently and

7 A/HRC/19/57, para. 68.

8 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, No. 35/2020, No. 70/2020, No. 71/2020, No.

72/2020, No. 17/2021, No. 68/2021, No. 69/2021, No. 28/2022 and No. 32/2022.

9 Opinion No. 35/2020, paras. 98–103.

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12

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

including the Human Rights Committee,10 the Committee on Economic, Social and Cultural

Rights,11 the Committee on Elimination of Discrimination against Women,12 the Committee

on the Elimination of Racial Discrimination,13 the Special Rapporteur on the human rights of

migrants14 and the Working Group.15 The Working Group is concerned that the unison voice

of so many independent, international human rights mechanisms should be disregarded, and

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

under international human rights law, without delay.

93.

Noting this and the numerous occasions on which the Working Group and other

United Nations human rights bodies and mechanisms have alerted Australia to the affront to

its obligations under international human rights law that the Migration Act 1958 poses, and

noting the failure of the Government to take any action, the Working Group concludes that

the detention of Mr. Jadiri under the said legislation is arbitrary under category I as it violates

article 9 (1) of the Covenant. Domestic law that violates international human rights law, and

which has been brought to the attention of the Government on so many occasions by

international human rights mechanisms, cannot be accepted as a valid legal basis for

detention, especially noting the findings of the Working Group under categories II and V

below.

Category II

94.

The Working Group observes that the present case involves an individual who has

spent nearly 10 years in various detention settings in Australia since 17 August 2013. Mr.

Jadiri arrived in Australian waters on 17 August 2013. He was intercepted by the Navy and

taken to Christmas Island, where he was detained as an illegal maritime arrival. While he has

been mostly detained in immigration detention facilities, he has also spent some time in

various prisons owing to a number of incidents that occurred while he was being detained in

immigration detention facilities. The Working Group notes the source’s description of these

events, which have not been not contested by the Government.

95.

Notwithstanding the Working Group’s views and findings regarding the Migration

Act 1958 and its compatibility with the obligations of Australia under international human

rights law (see above), the Working Group observes that it is not disputed that Mr. Jadiri

remains currently detained based on the provisions of the Migration Act. The source argues

that Mr. Jadiri is detained under the Migration Act purely for the exercise of his rights under

article 14 of the Universal Declaration of Human Rights. While the Government does not

contest that the detention of Mr. Jadiri is due to his migratory status, it nevertheless argues

that such detention is strictly in accordance with the Migration Act.

96.

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

act; on the contrary, seeking asylum is a universal human right, enshrined in article 14 of the

Universal Declaration of Human Rights and in the Convention relating to the Status of

Refugees of 1951 and the 1967 Protocol thereto. The Working Group notes that these

instruments constitute international legal obligations that Australia has undertaken.16

97.

Indeed, Mr. Jadiri arrived in Australia on 17 August 2013, was immediately detained,

and remains detained to this day, nearly 10 years later. His detention in Australia is

characterized by various visa applications, their rejections and appeals against the rejections.

Mr. Jadiri’s prolonged detention, of nearly 10 years, has reportedly left him very unwell.

10 CCPR/C/AUS/CO/6, paras. 33–38.

11 E/C.12/AUS/CO/5, paras. 17–18.

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

13 CERD/C/AUS/CO/18-20, paras. 29–33.

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

15 For example, opinions No. 50/2018, paras. 86–89; No. 74/2018, paras. 99–103; No. 1/2019, paras.

92–97; No. 2/2019, paras. 112–117; No. 74/2019, paras. 75–80; No. 35/2020, paras. 98–103; and No.

17/2021, paras. 125–128.

16 See, for example. opinions No. 28/2017, No. 42/2017 and No. 35/2020.

A/HRC/WGAD/2022/33

13

98.

The Working Group notes in particular that the Government has made no indication

as to when Mr. Jadiri’s detention would cease, but has made clear that it would be “protracted”

owing to challenges associated with securing travel documents. In this regard, the Working

Group notes with concern the source’s submission that Mr. Jadiri is in fact a stateless person,

which the Government has chosen not to address. This leads the Working Group to conclude

that “protracted” may be equated with “indefinite” in the present case, as it would clearly be

impossible to obtain travel documents for Mr. Jadiri from Iraq, which does not recognize him

as its citizen.

99.

As the Working Group has explained, in its revised deliberation No. 5, 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.17

100.

This echoes the views of the Human Rights Committee, which, in its general comment

No. 35 (2014), argued the following:

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.

101.

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

remained in detention for nearly 10 years, spending time in various detention facilities in

Australia. It is clear to the Working Group that when Mr. Jadiri was initially detained, the

Government did not engage in the assessment of the need to detain him and there was no

attempt to ascertain if a less restrictive measure would have been suited to his individual

circumstances, as required by international law. In fact, throughout his time in Australia, the

Australian authorities have never attempted to do so. The Working Group cannot accept that

detention for nearly 10 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. Jadiri, 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.

102.

These failures by the Government lead the Working Group to conclude that there was

no other reason for detaining Mr. Jadiri but the fact that he was seeking asylum and arrived

in Australia without a visa, therefore being subjected to the automatic immigration detention

policy of Australia under the Migration Act 1958. The Working Group therefore concludes

that Mr. Jadiri was detained as a result of the exercise of his legitimate rights under article 14

of the Universal Declaration of Human Rights.

103.

Furthermore, while the Working Group agrees with the Government’s argument in

relation to article 26 of the Covenant, it must nevertheless highlight that the Human Rights

Committee, in the same general comment as cited by the Government, 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, and that aliens have

the full right to liberty and security of person.18

104.

Mr. Jadiri is therefore entitled to the right to liberty and security of person as

guaranteed in article 9 of the Covenant and Australia must ensure that he is guaranteed this

right without distinction of any kind, as required by article 2 of the Covenant. In the present

case, Mr. Jadiri 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.

105.

Consequently, noting that Mr. Jadiri has been detained as a result of the legitimate

exercise of his rights under article 14 of the Universal Declaration of Human Rights and

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

18 Human Rights Committee, general comment No. 15 (1986), paras. 2 and 7.

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14

articles 2 and 9 of the Covenant, the Working Group finds his detention arbitrary under

category II. In making this finding, the Working Group notes the Government’s submission

that Mr. Jadiri has always been treated in accordance with the stipulations of the Migration

Act 1958. Be that as it may, as noted above, such treatment is not compatible with the

obligations that Australia has undertaken under international law. The Working Group refers

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

action.

Category IV

106.

The source argues that Mr. Jadiri has been subjected to prolonged administrative

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

Government denies these allegations, arguing that persons in immigration detention can seek

judicial review of the lawfulness of their detention before the Federal Court or the High Court

and that the case of Mr. Jadiri has been reviewed by the Commonwealth Ombudsman 13

times.

107.

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.19 This right, which is a peremptory norm of international law, applies to all forms

and situations of deprivation of liberty,20 including not only to detention for purposes of

criminal proceedings but also to migration detention.21

108.

The facts of Mr. Jadiri’s case, as presented to the Working Group, are characterized

by various visa applications, their rejections and challenges to these rejections since his

detention on 17 August 2013. However, as the Working Group already observed, none of

them has concerned the necessity to detain Mr. Jadiri or indeed the proportionality of such

detention to his individual circumstances. Rather, they assessed Mr. Jadiri’s claims against

the legal framework set out by the Migration Act 1958. As is evident by the Working Group’s

examination above, the Migration Act is incompatible with the obligations of Australia under

international law and therefore assessments carried out in accordance with the Migration Act

are equally incompatible with the requirements of international law.

109.

The Government has argued that the case of Mr. Jadiri is being periodically reviewed

by the Commonwealth Ombudsman. However, the Government has not explained how such

a review satisfies the requirement of article 9 (4) of the Covenant for a review of the legality

of detention by a judicial body. The Working Group is particularly mindful that the

Commonwealth Ombudsman has no power to compel the Department of Home Affairs to

release a person from immigration detention, as clearly stipulated by the Government itself.

110.

The Government has also argued that the relevant minister has reviewed the detention

of Mr. Jadiri. Once again, noting that this is a review by an executive body, the Working

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

111.

The Working Group therefore concludes that during the nearly 10 years of his

detention, no judicial body has ever been involved in the assessment of the legality of Mr.

Jadiri’s detention, noting that international human rights law requires that such consideration

by a judicial body necessarily involve the assessment of the legitimacy, necessity and

proportionality to detain.22

112.

In this connection, the Working Group must once again reiterate that indefinite

detention of individuals in the course of migration proceedings cannot be justified and is

arbitrary,23 which is why the Working Group has required that a maximum period for the

detention in the course of migration proceedings be set by legislation and, upon the expiry of

19 A/HRC/30/37, annex, paras. 2–3.

20 Ibid., para. 11.

21 Ibid., para. 47 (a).

22 A/HRC/39/45, annex, paras. 12–13.

23 Ibid., para. 18, and see opinions No. 28/2017, No. 42/2017, No. 7/2019 and No. 35/2020; see also

A/HRC/13/30, para. 63.

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15

the period for detention set by law, the detained person be automatically released.24 There

cannot be a situation whereby individuals are caught up in an endless cycle of periodic

reviews of their detention without any prospect of actual release. Such a situation is akin to

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

detention on an ongoing basis.25 As the Working Group has stated, in its 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-refoulement,26 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.27

113.

The Working Group also recalls the Human Rights Committee’s numerous findings

that the application of mandatory immigration detention in Australia and the impossibility of

challenging such detention violate article 9 (1) of the Covenant.28 Moreover, as the Working

Group has noted in its revised deliberation No. 5, detention in migration settings must be

exceptional and, in order to ensure this, alternatives to detention must be sought.29 In the case

of Mr. Jadiri, the Working Group has already established that, since his detention on 17

August 2013, no alternatives to his detention have been considered.

114.

Moreover, despite the Government’s claims to the contrary, the Working Group

opines that the detention of Mr. Jadiri is in fact punitive in nature which, as it highlighted its

revised deliberation No. 5, should never be the case.30 Mr. Jadiri has been detained for nearly

10 years, without a charge or a trial in what was clearly a punitive detention, in breach of

article 9 of the Covenant.

115.

Mr. Jadiri has now been detained for nearly 10 years and the Government was unable

to identify how long his detention would last. Consequently, the Working Group finds that

Mr. Jadiri is subjected to de facto indefinite detention due to his migratory status, without the

possibility of challenging the legality of his detention before a judicial body, a right

guaranteed under article 9 (4) of the Covenant. His detention is therefore arbitrary under

category IV.

Category V

116.

The source argues that the High Court’s decision in Al-Kateb v. Godwin effectively

places non-citizens such as Mr. Jadiri in a different situation from Australian citizens.

According to that decision, while Australian citizens can challenge the legality of their

administrative detention before domestic courts and tribunals, non-citizens cannot. In its

reply, the Government denies those allegations, arguing that in the cited case the High Court

upheld provisions of the Migration Act 1958 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.

24 A/HRC/39/45, annex. para. 25; see also A/HRC/13/30, para. 61; and opinion No. 7/2019.

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

26 Convention Against Torture, Article 3; Refugee Convention, Article 33.

27 A/HRC/39/45, annex, para. 27. See also A/HRC/7/4, para. 48; A/HRC/10/21, para. 82; A/HRC/13/30,

para. 63; and opinion No. 45/2006.

28 See Human Rights Committee, C. v. Australia, Baban and Baban v. Australia

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

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

(CCPR/C/79/D/1069/2002), D et al. 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).

29 A/HRC/13/30, para. 59; 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; E/CN.4/1999/63/Add.3, para. 33; and opinions No. 72/2017 and No.

21/2018.

30 A/HRC/39/45, annex, paras. 9 and 14. See also opinion No. 49/2020, para. 87.

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16

117.

The Working Group remains perplexed by the explanation provided repeatedly by the

Government in relation to the High Court’s decision in that case,31 as it only confirms that

the High Court affirmed the legality of the detention of non-citizens until they are removed,

deported or granted a visa, even if removal were not reasonably practicable in the foreseeable

future. However, as the Working Group has repeatedly noted, the Government fails to explain

how such non-citizens can effectively challenge their continued detention given the decision

of the High Court, which is what the Government must do in order to comply with articles 9

and 26 of the Covenant. To this end, the Working Group once again specifically recalls the

consistent jurisprudence of the Human Rights Committee, which has examined the

implications of the High Court’s judgment in Al-Kateb v. Godwin and concluded that the

effect of that judgment is such that there is no effective remedy to challenge the legality of

continued administrative detention.32

118.

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

Committee on the matter,33 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. Jadiri is arbitrary

under category V.

Concluding remarks

119.

The Working Group wishes to place on record its very serious concern over the state

of Mr. Jadiri’s mental and physical health, which has severely deteriorated following the

more than 10 years of his detention, which the Working Group has established to be indefinite

arbitrary detention. Although the Working Group acknowledges the Government’s extensive

submissions concerning the health-care provision for Mr. Jadiri, it nevertheless reminds the

Government that article 10 of the Covenant requires that all persons deprived of their liberty,

including those held in the context of immigration detention, be treated with respect for their

human dignity. As the Working Group has explained in its revised deliberation No. 5, all

detained migrants must be treated humanely and with respect for their inherent dignity, and

the conditions of their detention must be humane, appropriate and respectful, noting the non-

punitive character of the detention in the course of migration proceedings. The Working

Group refers the case to the Special Rapporteur on the right of everyone to the enjoyment of

the highest attainable standard of physical and mental health, for appropriate action.

120.

Although the present opinion does not address Mr. Jadiri’s detention in the criminal

justice context and is adopted without prejudice to his guilt or otherwise in any criminal acts,

the Working Group cannot help but be disturbed at the source’s allegations over the various

incidents in which Mr. Jadiri has been involved and for which he has been prosecuted. The

source’s submissions appear to indicate that at least some of these incidents were the result

of provocation and altercations with officers in charge of the detention facility, which is run

by a private company, allegations which the Government chose not to address. The Working

Group recalls that even when the Government contracts out the running of its detention

facilities to private companies, the Government is not absolved of its obligations in relation

to all those detained.34 The Working Group refers the case to the Working Group on the issue

of human rights and transnational corporations and other business enterprises, for appropriate

action.

121.

The Working Group also wishes to emphasize that in the light of the coronavirus

disease (COVID-19) outbreak, it has called upon States to note the underlying conditions of

detention as especially conducive to the spread of the disease. As the Working Group has

31 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; No. 35/2020, paras. 95; No. 70/2020, para. 113; and No.

17/2021, para. 121.

32 See Human Rights Committee, C. v. Australia; Baban and Baban v. Australia; Shafiq v. Australia;

Shams et al. v. Australia; Bakhtiyari et al. v.; D et al. v.; Nasir v. Australia; and F.J. et al. v.

Australia, para. 9.3.

33 See opinions No. 28/2017, No. 42/2017, No. 71/2017, No. 20/2018, No. 21/2018, No. 50/2018, No.

74/2018, 1/2019, No. 2/2019, No. 74/2019, No. 35/2020, No. 70/2020, No. 71/2020, No. 72/2020,

No. 17/2021, No. 68/2021, No. 69/2021 and No. 28/2022.

34 Revised Deliberation No 5 at para 46.

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highlighted in its deliberation No. 11, detention in the context of migration is only permissible

as an exceptional measure of last resort, which is a particularly high threshold to be satisfied

in the context of a pandemic or other public health emergency.35 The Working Group calls

upon the Government to release Mr. Jadiri in the prevailing circumstances and especially

noting the trauma that he has suffered as a result of the years of detention to which he has

already been subjected.

122.

The Working Group welcomes the Government’s invitation of 27 March 2019 for the

Working Group to conduct a visit to Australia in 2020. Although the visit had to be postponed

owing 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, including with regard to its offshore detention facilities, and to

offer its assistance in addressing its serious concerns relating to instances of arbitrary

deprivation of liberty.

Disposition

123.

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

The deprivation of liberty of Wissam Jadiri, 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 I, II, IV and V.

124.

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

to remedy the situation of Mr. Jadiri 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.

125.

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

case, the appropriate remedy would be to release Mr. Jadiri 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 unconditional release of Mr. Jadiri.

126.

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

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

Jadiri and to take appropriate measures against those responsible for the violation of his rights.

127.

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 commitments made by Australia under international human rights law.

128.

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, the Special

Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of

physical and mental health and the Working Group on the issue of human rights and

transnational corporations and other business enterprises, for appropriate action.

129.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

130.

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

(b)

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

35 A/HRC/45/16, annex II, para. 23.

A/HRC/WGAD/2022/33

18

(c)

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

131.

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.

132.

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.

133.

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.36

[Adopted on 6 April 2022]

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