A/HRC/WGAD/2022/69

GE.23-03528(E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-fifth session, 14–18 November 2022

Opinion No. 69/2022 concerning Mr. A, whose name is known to the

Working Group on Arbitrary Detention (Australia)

1.

The Working Group on Arbitrary Detention was established by the Commission on

Human Rights in its resolution 1991/42. 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 51/8.

2.

In accordance with its methods of work, 1 on 21 June 2022 the Working Group

transmitted to the Government of Australia a communication concerning Mr. A. The

Government replied to the communication on 16 September 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).

* Reissued for technical reasons on 14 June 2023.

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2022/69*

General Assembly

Distr.: General

8 March 2023

Original: English

A/HRC/WGAD/2022/69

2

Submissions

Communication from the source

4.

Mr. A is a citizen of the Islamic Republic of Iran of Ahwazi Arab decent, born on 26

June 1980. Mr. A and his family, like other Ahwaz Arabs, have allegedly been persecuted by

the authorities.

5.

Mr. A came to the attention of the Iranian authorities for accompanying his father, for

safety reasons, to certain meetings and gatherings and for not regarding himself as Muslim.

6.

In 2005, Mr. A came into contact with members of the National Liberation Movement

of Ahwaz and became a member. He was engaged in the distribution of publications,

informing the public about alleged incidents of the persecution of Ahwaz Arabs.

7.

On 4 September 2009, Mr. A was driving home wearing a traditional Arab dress. He

was stopped by authorities at a checkpoint, his car was searched and he was arrested for

insulting sacred values and for clashing with the authorities. He was detained, beaten and

interrogated for three days, after which he was forced to sign a paper that he was not given a

chance to understand and was released.

8.

Mr. A was again arrested on 9 September 2010, when the authorities found his Arab

dress in the back of his car. After managing to escape from his place of detention in the

middle of the night, he went directly to the airport and fled to Indonesia on 10 September

2010.

9.

Following his departure, members of his family were arrested on several occasions.

Furthermore, a verdict of the Criminal Court, dated 19 February 2013, was issued against

Mr. A, announcing that, as punishment for failing to appear before the court, the authorities

would confiscate and sell his house and cars, which they did in January 2015. The verdict

also states that the case against Mr. A for failing to appear in court is still pending and has

been adjourned.

10.

In October 2013, Mr. A discovered that two of his school friends who had worked for

the National Liberation Movement of Ahwaz had been arrested and killed for trying to flee

the country. In addition, the authorities had raided his friends’ retail shops to check for

materials related to the movement.

11.

On 11 October 2010, Mr. An arrived by boat at Christmas Island as an unauthorized

maritime arrival. He was detained as an offshore entry person under section 189 (3) of the

Migration Act (1958). The Act specifically provides, in sections 189 (1), 196 (1) and 196 (3),

that unlawful non-citizens must be detained and kept in detention until they are: (a) removed

or deported from Australia; or (b) granted a visa. Section 196 (3) specifically provides that

an unlawful non-citizen cannot be released from detention “even by a court”.

12.

While Mr. A remained in detention, on 6 May 2011, under a government refugee

status determination, it was found that he was not owed protection obligations. This finding

was confirmed on 7 November 2011 by an independent government merits review.

13.

From 11 October 2010 to December 2011, Mr. A was detained at the Christmas Island

detention centre and in December 2011 he was moved the Wickham Point alternative place

of detention. On 12 April 2012, Mr. A was released from detention on a bridging visa. In

total, he spent 18 months deprived of his liberty during his first period of detention.

14.

On 21 September 2012, the Federal Circuit Court in Darwin dismissed Mr. A’s appeal

against the finding that he was not owed protection under Australian international law

obligations.

15.

Mr. A was granted work rights only until the end of 2012. He remained reliant on

charity in the community in Melbourne until 2017, when he was granted another bridging

visa for the period 2017–2019, after which he travelled to Sydney to look for work.

16.

On 4 August 2017, Mr. A’s bridging visa was cancelled and he was detained a second

time. On that date, Mr. A was test-driving a car owned by a friend, to decide whether to

purchase it, when they were stopped by the police. The police found a gun belonging to the

car owner, as well as a laser pointer, in the car. Mr. A was charged with four offenses and

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attended a local court hearing on 13 April 2018, where he was found not guilty on the first

three charges but guilty on the fourth charge of having a laser pointer in his custody in a

public place. However, without proceeding to conviction, the matter was dismissed.

Nevertheless, Mr. A has remained in immigration detention at the Villawood immigration

detention centre in New South Wales ever since.

17.

The source states that on 15 September 2014, the Department of Home Affairs

reported that it would reassess Mr. A’s claim to protection in the light of complementary

protection provisions by undertaking an International Treaties Obligations Assessment to

determine whether his circumstances would come under Australia’s non-refoulement

obligations. However, the Department suspended the assessment process from 4 August 2017

until 16 April 2018 while Mr. A’s criminal charges remained in process.

18.

On 12 September 2019, the Commonwealth Ombudsman recommended that the

Department of Home Affairs expedite the finalization of Mr. A’s International Treaties

Obligations Assessment and that his case be referred to the Minister for Home Affairs for

reconsideration under section 195A of the Migration Act (1958) for the grant of a bridging

visa.

19.

On 26 March 2020, the Minister for Home Affairs agreed to intervene to lift the

statutory bar under section 46 A of the Migration Act (1958) to allow Mr. A to make an

application for a temporary protection visa or a safe haven enterprise visa. On 30 April 2020,

the Department of Home Affairs received an application for the latter visa.

20.

On 18 August 2020, a representative of the Minister for Home Affairs refused to grant

Mr. A a safe haven enterprise visa. On 20 August 2020, his legal representatives requested

that the Administrative Appeals Tribunal review that decision. On 11 December 2020, the

Appeals Tribunal affirmed the decision under review.

21.

On 15 March 2021, Mr. A’s legal representatives initiated a request for a ministerial

intervention under section 195A of the Migration Act (1958). The request remains pending

before the Minister for Home Affairs. On 16 March 2021, Mr. A applied for a bridging visa

on the grounds of his request for a ministerial intervention. Promptly, on 18 March 2021, the

Department of Home Affairs rejected Mr. A’s application as invalid because it did not meet

the requirements under section 46 A of the Migration Act (1958).

22.

On 15 August 2021, Mr. A’s legal representatives initiated a request for a ministerial

intervention under section 195A of the Migration Act (1958). The request remains pending

before the Minister for Home Affairs who, thus far, has chosen not to lift the immigration

bar. Mr. A has taken all necessary steps to seek protection in Australia and to use the appeal

avenues available to him by law.

23.

In his first years in Australia, Mr. A did not understand the Australian legal system

and was apprehensive of disclosing his entire story for fear of being forcibly returned to the

Islamic Republic of Iran. It was only after June 2011, when he felt reassured that it was safe

to provide more information, that he did his best to cooperate with the authorities.

24.

In Australia, Mr. A does not have a criminal record and has an exemplary behavioural

record in detention.

25.

Mr. A suffers from depression due to his prolonged detention and uncertainty about

his future. He was devastated by the loss of his partner in February 2020 and of his mother

in April 2020.

26.

Mr. A has been deprived of his liberty and the exercise of his rights guaranteed under

article 14 of the Universal Declaration of Human Rights as he came to Australia to seek

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

International Covenant on Civil and Political Rights, which states that all people are entitled

to equal protection under the law, without discrimination.

27.

The source argues that asylum-seekers do not have the same rights under Australian

law as Australian citizens, who are not subjected to administrative immigration detention.

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

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

sometimes through protracted legal proceedings.

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28.

This is not the case for Mr. A, who was detained immediately upon arrival in Australia

from 2010–2012 and again since 2017, despite the dismissal of criminal charges against him.

Furthermore, he has lived peaceably and without incident in low-security facilities in

immigration detention.

29.

The Human Rights Committee, in its general comment No. 35 (2014), requires that

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

circumstances and reassessed as it is extended in time.

30.

The very fact that Mr. A has been held in administrative detention since August 2017,

has no behavioural issues and no criminal record, illustrates that his detention is not

reasonable, necessary or proportionate and has not been properly or independently assessed

over time. Without a course to obtain release, it appears that he may be held in detention

indefinitely. Given that he cannot return to the Islamic Republic of Iran, his detention is

unreasonable.

31.

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

(1958) until 26 March 2020, when he had been in closed detention for almost three years. He

did not apply for bridging visa under section 195A of the Act until his legal representatives

applied on his behalf on 16 March 2021, despite his exemplary behaviour and long-term

residence in a low-security facility.

32.

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

practice that is not contrary to the Constitution of Australia (Al-Kateb v. Godwin (2004)).

Australian citizens and non-citizens are not equal before the courts and tribunals. The Court’s

decision in Al-Kateb v. Godwin stands for the proposition that detention of non-citizens

pursuant to, inter alia, section 189 of the Migration Act (1958) does not contravene the

Constitution. The effective result is that while citizens can challenge administrative

detention, non-citizens cannot.

33.

The Human Rights Committee, in Mr. C v. Australia,2 held that there is no effective

remedy for people subjected to mandatory detention. The judgment in the case of The

Commonwealth v. AJL20 (2021) further entrenched the legality of indefinite immigration

detention, even if it is evident that the Government is not taking active steps to remove an

individual as soon as reasonably practicable.

Response from the Government

34.

On 21 June 2022, 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 detailed information by 19 August 2022 about the current

situation of Mr. A and to clarify legal provisions justifying his continued detention, as well

as its compatibility with Australia’s obligations under international human rights law, in

particular with regard to the treaties ratified by the State. Moreover, the Working Group has

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

35.

On 1 July 2022, the Government requested an extension of time in accordance with

paragraph 16 of the Working Group’s methods of work and was granted a new deadline of

19 September 2022.

36.

In its reply, dated 16 September 2022, the Government noted that Mr. A is an Iranian

citizen of Ahwazi Arab descent who entered Australia by sea on 11 October 2010 and became

an unauthorized maritime arrival as defined in section 5AA of the Migration Act (1958).

37.

Mr. A was detained at the Christmas Island immigration detention centre under

section 189 (3) of the Migration Act (1958) on the basis that he was an unlawful non-citizen

pursuant to section 14 of the Act.

38.

Mr. A is currently at the Villawood immigration detention centre because he is an

unlawful non-citizen, meaning he is a non-citizen who does not hold an effective visa

(sections 13 and 14 of the Migration Act (1958)).

2 See CCPR/C/76/D/900/1999.

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39.

Mr. A’s claims for protection have been considered, but he has been found not to

engage Australia’s protection obligations. Mr. A’s case has been repeatedly referred for

intervention to the Minister for Home Affairs, requesting that his case be considered under

sections 195A and 197 AB of the Migration Act (1958).

40.

Mr. A underwent multiple external review processes relating to his immigration

status. He currently has no substantive matters before the Department of Home Affairs,

tribunals or the courts. While Mr. A has an ongoing request for ministerial intervention under

section 48B of the Migration Act (1958), this is not a legal barrier to his involuntary removal

from Australia and the Department is currently considering claims raised in regard to such a

request. If Mr. A is found to meet the guidelines for referral to the Minister for Home Affairs,

it will only allow him to make a further application for a protection visa; that is, it will not

effect his release from immigration detention. Mr. A may request voluntary removal from

Australia at any time. He is currently on an involuntary removal pathway with the

Department.

41.

Upon detention, on 16 October 2010, Mr. A participated in an entry interview and

indicated he was seeking protection under Australia’s obligations as a State party to the

Convention relating to the Status of Refugees of 1951.

42.

On 10 December 2010, Mr. A lodged a request for a refugee status assessment. On 6

May 2011, a representative of the Minister for Home Affairs found that Mr. A did not qualify

for engagement under Australia’s protection obligations under the 1951 Convention.

43.

On 20 May 2011, Mr. A requested an independent merits review of his request for

refugee status. On 7 November 2011, the reviewer recommended that Mr. A did not meet the

definition of a refugee under the 1951 Convention and therefore did not satisfy the criterion

for a protection visa set out in section 36 (2) of the Migration Act (1958).

44.

On 6 December 2011, Mr. A sought a judicial review of the decision on the

independent merits review before the Federal Circuit Court and Family Court of Australia.

45.

On 27 March 2012, the Department of Home Affairs initiated an investigation into

Mr. A’s case under section 195A of the Migration Act (1958). On 5 April 2012, the Minister

for Home Affairs agreed to consider Mr. A’s case under section 195A.

46.

As a result, on 12 April 2012, the Minister for Home Affairs intervened in Mr. A’s

case to grant him a temporary protection visa and a bridging visa. Mr. A was released from

immigration detention on the same day. The temporary visa was valid for seven days and the

bridging visa for six months, until 12 October 2012.

47.

On 30 May 2012, as Mr. A’s refugee status assessment and independent merits review

processes had been completed prior to 24 March 2012 when complementary protection

provisions of the Migration Act (1958) commenced, his case was assessed against the

guidelines for the consideration of post-review protection claims to determine whether his

case should be referred to the Minister for Home Affairs for consideration. On the same day,

the Department of Home Affairs found that Mr. A did not meet the criteria set out in the

guidelines for referral to the Minister under section 195A.

48.

On 6 July 2012, the Department of Home Affairs commenced a ministerial

intervention process for Mr. A’s case to be assessed against the guidelines for ministerial

intervention under section 195A of the Migration Act (1958). On 6 July 2012, his case was

assessed as not meeting the section 195A guidelines.

49.

On 21 September 2012, Mr. A’s appeal of the independent merits review decision was

dismissed by the Federal Circuit Court and Family Court.

50.

On 11 October 2012, the Department of Home Affairs commenced a ministerial

intervention process for Mr. A’s case under section 195A of the Migration Act (1958). On

17 October 2012, the Minister for Home Affairs intervened in Mr. A’s case under section

195A.

51.

On 14 January 2013, the Department of Home Affairs commenced an additional

ministerial intervention process in relation to Mr. A under section 195A. On 21 January 2013,

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the Minister intervened in Mr. A’s case under section 195A. This process resulted in the

granting of a bridging visa.

52.

On 19 April 2013, the Department of Home Affairs once again commenced a

ministerial intervention process for Mr. A’s case under section 195A. On 24 April 2013, the

then Minister for Home Affairs intervened in Mr. A’s case under section 195A. This process

resulted in the granting of another bridging visa.

53.

On 6 August 2013, Mr. A’s case was identified for potential inclusion in a group

submission for referral to the Minister for Home Affairs under section 195A. It was

subsequently determined that Mr. A’s case was not to be included and the ministerial

intervention process was terminated.

54.

On 15 September 2014, owing to legal developments and changes to departmental

policy, the Department of Home Affairs determined that it would no longer rely on its earlier

assessment under the guidelines for consideration of post-review protection claims of May

2012. The Department commenced a reassessment of Mr. A’s protection claims by

undertaking an International Treaties Obligations Assessment.

55.

On 9 October 2014, the Department of Home Affairs commenced a ministerial

intervention process in relation to Mr. A under section 195A. The Minister for Home Affairs

decided to intervene, in accordance with section 195A, granting Mr. A a further bridging visa

with a number of conditions.

56.

On 9 January 2015, Mr. A’s bridging visa expired, and he became an unlawful non-

citizen. Until 4 August 2017, Mr. A resided unlawfully in the community.

57.

On 4 August 2017, Mr. A was arrested and charged by New South Wales police with

a number of criminal offences. On 5 August 2017, Mr. A was released from police custody,

but detained again on the same day under section 189 (1) of the Migration Act (1958) (as he

did not hold a visa) and transferred to the Villawood immigration detention centre.

58.

On 16 April 2018, the Federal Court found that Mr. A has a laser pointer in his custody

in a public place, but the matter was dismissed. Mr. A was charged with three other offences

but was found not guilty on all charges.

59.

On 16 April 2018, the Department of Home Affairs commenced a ministerial

intervention process in relation to Mr. A under section 195A. On 23 October 2018, the

Minister for Home Affairs declined to consider Mr. A’s case under section 195A.

60.

On 28 March 2019, the Department of Home Affairs commenced a ministerial

intervention process for Mr. A’s case to be assessed against the guidelines under section

195A for referral to Minister for Home Affairs. On 27 February 2020. Mr. A’s case was

assessed as meeting the guidelines.

61.

Noting changes in Mr. A’s circumstances since February 2020, a review of the

previous assessment on ministerial intervention was undertaken. On 16 July 2021, the review

found that Mr. A had had no ongoing immigration processes since December 2020 (and was

therefore available for removal) and that the International Health and Medical Services had

stated that his health conditions could be managed in his current environment. The review

also noted that Mr. A refused to depart Australia voluntarily. Therefore, his case was assessed

as not meeting the guidelines under section 195A and the assessment process was finalized

by the Department of Home Affairs as “not met” and “not referred to the Minister”.

62.

On 10 May 2019, the Commonwealth Ombudsman had recommended that the

Department of Home Affairs expedite the finalization of the International Treaties

Obligations Assessment for Mr. A. The Ombudsman had also recommended that Mr. A’s

case be referred to the Minister for Home Affairs for consideration under section 195A for

the grant of a bridging visa.

63.

On 5 August 2019, Mr. A lodged two applications for a bridging visa. On the same

day, the first application was determined to be invalid as it was not made in a place or manner

specified by the Minister for Home Affairs. On 7 August 2019, the second application was

determined to be invalid, as Mr. A was barred from making a valid application for a visa

under section 46A of the Migration Act (1958).

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64.

On 7 August 2019. Mr. A’s case was referred to the Minister for Home Affairs for

consideration to intervene to lift the legislative bar imposed by section 46A of the Migration

Act (1958), which would allow Mr. A to submit a valid application for a temporary protection

visa or a safe haven enterprise visa. On 24 December 2019, the Department of Home Affairs

referred the case to the Assistant Minister for Home Affairs.

65.

Prior to 29 January 2020, Mr. A lodged six applications for bridging visas. All of the

applications were determined to be invalid either because they were not made as specified by

the Minister for Home Affairs or because he was barred under section 46A of the Migration

Act (1958).

66.

On 26 March 2020, the Minister for Home Affairs lifted the bar under section 46A to

allow Mr. A to submit an application for a temporary protection visa or a safe haven

enterprise visa so that his protection claims could be assessed through a statutory process.

67.

On 29 March 2020, Mr. A lodged an application for a temporary protection visa and

on 30 March 2020, for a safe haven enterprise visa. On 15 May 2020, Mr. A withdrew his

application for a temporary protection visa.

68.

On 18 August 2020, Mr. A’s application for a safe haven enterprise visa was refused

by a representative of the Minister for Home Affairs in accordance with section 65 of the

Migration Act (1958). The application was on the basis that he was found not to engage

Australia’s protection obligations as a refugee or under the complementary protection

provisions as codified in paragraphs 36 (2) (a) and 36 (2) (aa) of the Migration Act (1958).

On 20 August 2020, Mr. A sought a merits review of the refusal of his application for a safe

haven visa with the Administrative Appeals Tribunal. On 11 December 2020, the Tribunal

affirmed the decision to refuse to grant a safe haven enterprise visa to Mr. A.

69.

On 15 March 2021; the Department of Home Affairs commenced a ministerial

intervention process for Mr. A’s case to be assessed against the relevant guidelines in sections

195A and 197AB of the Migration Act (1958). On 2 March 2022, Mr. A’s case was assessed

as not meeting the guidelines and the process was finalized.

70.

On 11 June 2022. the Department of Home Affairs commenced a ministerial

intervention process for Mr. A’s case to be assessed against the guidelines. On 4 July 2022,

Mr. A’s case was again assessed as not meeting the guidelines.

71.

On 7 September 2022, Mr. A’s migration agent, on his behalf, made a request for a

ministerial intervention under section 48B of the Migration Act (1958), seeking the

intervention of the Minister for Home Affairs to allow Mr. A to lodge another application for

a temporary protection visa. That request remains in process before the Department of Home

Affairs.

72.

The Department of Home Affairs is aware of Mr. A’s mental health issues, for which

he actively engages with a torture and trauma counsellor.

73.

With regard to Mr. A’s physical health, he has a history of several conditions that are

being monitored and managed.

74.

Mr. A is aware of the services available to him. Mr. A has no health issues that cannot

be managed in a detention facility.

75.

Australia’s universal visa system requires all non-citizens to hold a valid visa to enter

and/or remain in Australia. Under section 189 of the Migration Act (1958), an individual

must be detained when an officer knows or reasonably suspects that an individual is an

unlawful non-citizen. Under section 196 of the Act, unlawful non-citizens are subject to

immigration detention for administrative purposes until they are removed from Australia or

are granted a visa.

76.

Section 195A of the Migration Act (1958) enables the Minister for Home Affairs to

grant a visa to a person in immigration detention if the Minister considers it is in the public

interest to do so. In addition, section 197AB provides the Minister with the power to make a

residence determination in respect of persons in immigration detention, allowing them to

reside in the community at a specified place and under specified conditions if the Minister

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considers it is in the public interest to do so. What is in the public interest is a matter for the

Minister to decide.

77.

The Minister for Home Affairs has established guidelines that describe the types of

cases that should or should not be referred for consideration under the above intervention

powers. Cases are only referred for ministerial intervention if they are assessed as meeting

the guidelines set out in section 195A of the Migration Act (1958). Ministerial intervention

is not an extension of the visa process.

78.

Persons in Australia who make valid applications for a protection visa have their

claims assessed. Australia’s domestic legislation, namely the Migration Act (1958), and

Australia’s policies and practices, are used to implement the country’s non-refoulement

obligations under the Convention relating to the Status of Refugees of 1951, the Covenant

and the Convention against Torture.

79.

If a person who makes a valid application for a visa is found not to satisfy the criteria

for a visa and it is refused, that person can seek to have the lawfulness of the decision to

refuse the visa reviewed through domestic judicial review processes. Judicial review of

administrative decisions is available to both citizens and non-citizens. Mr. A has exercised

this right on multiple occasions.

80.

The Government is obliged in all court proceedings to act as a model litigant,

including acting fairly in the handling of claims, not taking advantage of a claimant who lacks

the resources to litigate and assisting the court to arrive at a proper and just result.

81.

The detention of individuals on the basis that they are unlawful non-citizens is not

arbitrary under international law if it is reasonable, necessary and proportionate in the light

of the circumstances and reassessed as it extends in time. In instances of continuing detention,

the determining factor is not the length of the detention but whether the grounds for 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 an individual’s

circumstances, including identity determination, information on developments in the country

of origin, health, character and security matters. Detention in an immigration detention centre

is a last resort for the management of unlawful non-citizens. Mr. A remains in immigration

detention because he is an unlawful non-citizen.

82.

Immigration detention is administrative in nature and not for punitive purposes.

83.

The Department of Home Affairs is required, under section 486N of the Migration

Act (1958), to provide the Commonwealth Ombudsman with reports detailing the

circumstances of individuals who have been in immigration detention for a cumulative period

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

Department under section 486N, the Commonwealth Ombudsman prepares independent

assessments of the individual’s circumstances and provides the Minister for Home Affairs

with a report under section 486O of the Migration Act (1958). The Commonwealth

Ombudsman may make recommendations to the Minister/Department regarding the

circumstances of the individual’s detention, including their detention placement. The

Department has reported on Mr. A on nine occasions during his time in immigration

detention; the most recent report was sent to the Commonwealth Ombudsman in February

2022.

84.

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

his or her detention before the Federal Court or the High Court of Australia. Section 75 (v)

of the Australian Constitution provides that the High Court has original jurisdiction in

relation to every matter where a writ of mandamus, prohibition or injunction is sought against

an officer of the Commonwealth. Section 39B (1) of the Judiciary Act (1903) grants the

Federal Court of Australia the same jurisdiction as the High Court under section 75 (v) of the

Constitution. It is those provisions that constitute the legal mechanism through which non-

citizens may challenge the lawfulness of their detention.

85.

In the case of Al-Kateb v. Australia, the High Court of Australia 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 decision in the Al-Kateb case does not alter a non-citizen’s ability to challenge

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the lawfulness of their detention under Australian law. Furthermore, non-citizens are also

able to challenge the lawfulness of their detention through an application for a writ of habeas

corpus. Mr. A has not sought to challenge the lawfulness of his detention through these legal

domestic avenues.

86.

The Universal Declaration of Human Rights is not a legally binding instrument.

However, the Government of Australia recognizes that articles of the Declaration reflect

international law to the extent that they have been codified in other legally binding

instruments. Notwithstanding this, the Government submits that Mr. A is detained as required

under section 189 of the Migration Act (1958) as he is an unlawful non-citizen, not as a

consequence of seeking protection. His protection claims have been assessed by a number of

decision-makers who have found that under domestic law he does not engage Australia’s

protection obligations.

87.

The Human Rights Committee has recognized, in the context of the Covenant, that it

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 certain conditions relating, for example, to movement, residence and employment. 3

88.

It is a matter for the Government to determine, consistent with its obligations under

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

including by requiring that a non-citizen hold a visa and that, in circumstances where a visa

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

89.

The differential treatment is not discriminatory and is not inconsistent with articles

12, 13 and 26 of the Covenant because it is aimed at achieving a purpose that is legitimate,

based on reasonable and objective criteria and is proportionate to the aim to be achieved.

90.

The differential treatment in the Migration Act (1958) between citizens and non-

citizens is for the legitimate aim of ensuring the integrity of Australia’s migration

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

protecting the community.

91.

Equality and non-discrimination should not be understood simplistically as requiring

identical treatment of all persons in all circumstances. The treatment of Mr. A amounts to

permissible legitimate differential treatment.

92.

Mr. A has been found not to engage Australia’s protection obligations under the

Migration Act (1958). He has no ongoing substantive matters before the Department of Home

Affairs. His request for ministerial intervention under section 48B of the Migration Act

(1958) will be assessed and he will be notified of that decision once available.

93.

There is no information in the records of the Department of Home Affairs to indicate

that Mr. A’s current placement is not appropriate.

94.

Mr. A remains opposed to his involuntary removal from Australia to the Islamic

Republic of Iran. The Iranian Embassy is currently not issuing travel documents to Iranians

who would be removed involuntarily. The Department of Home Affairs continues to engage

with Mr. A and continues to explore options to effect his removal from Australia.

95.

The Government concludes that Mr. A is lawfully detained under section 189 (1) of

the Migration Act (1958), consistent with Australia’s international obligations.

Additional comments from the source

96.

On 30 September 2022, the reply of the Government was sent to the source for further

comments, which the source provided on 14 October 2022. The source notes that current

events in the Islamic Republic of Iran warrant a reconsideration of Mr. A’s protection claims,

both as an Ahwaz Arab from Khuzestan, a persecuted minority group in the country, and as

3 Human Rights Committee, general comment No. 15 (1986).

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10

an active member of the National Liberation Movement of Ahwaz. Mr. A will be at serious

risk of persecution, torture or death if he is not granted protection in Australia.

97.

Recently, several members of Mr. A’s family were shot and killed by Iranian security

forces during protests in the city of Ahvaz.

98.

The Government refers to changes in Mr. A’s circumstances since February 2020 as

forming the basis of a review of his previous assessment for a ministerial intervention under

section 195A of the Migration Act (1958), although those changes are not specified.

99.

The source notes that Government is not entitled to draw an adverse conclusion from

the fact that, by refusing to depart Australia voluntarily, Mr. A has been assessed as not

meeting the guidelines for ministerial intervention. His refusal to be removed to the Islamic

Republic of Iran both reiterates and reinforces his acute fear of persecution if returned.

100.

The source recalls that in the last report on Mr. A’s condition submitted by the Service

for the Treatment and Rehabilitation of Torture and Trauma Survivors, dated 24 June 2022,

it was stated that his current visa immigration issues continue to have a significant impact on

his psychological well-being. The ongoing detention is also affecting his ability to maintain

hope for the future.

101.

The source also elaborates on Mr. A’s negative emotions associated with his ongoing

detention status. His health, namely, his acute mental distress and anxiety, far from being

managed in a detention facility as the Government asserts, have been caused, and continue

to be exacerbated, by his closed and indefinite administrative detention, which is having a

punitive effect on him.

102.

In subsequently affirming the decision of the Department of Home Affairs, the

Administrative Appeals Tribunal concluded that Mr. A’s family continues to remain affluent,

and hence unlikely to face discrimination, despite finding that his family properties have been

confiscated by the Iranian authorities over the years.

103.

The source submits that Mr. A’s most recent request for ministerial intervention under

section 48B of the Migration Act (1958) was once again finalized without referral to the

Department of Home Affairs because it did not meet the guidelines under section 195A. In a

separate document, explaining the reasons behind its decision, the Department stated that it

will continue to rely on the findings of the Administrative Appeals Tribunal because Mr. A

has not provided any new evidence that would support his claims or contradict those findings

and that there is little to demonstrate that he is at risk of serious and significant harm if he

returns to the Islamic Republic of Iran.

104.

Mr. A, however, has provided considerable evidence over the years pertaining to his

continued active membership in the National Liberation Movement of Ahwaz, the

confiscation of his family’s property, its continued harassment and his activism on social

media. In addition, it should be remembered that Mr. A’s public activism is limited to what

he can access from immigration detention where he has been confined since 5 August 2017.

105.

Mr. A has been left drained and exhausted, mentally, physically and financially, after

years of appeals for recognition as a refugee to whom Australia owes protection obligations.

He does not have the means to continue with further lengthy judicial process to seek to

establish his protection claims, let alone challenge the lawfulness of his detention through

domestic legal avenues.

106.

Since 30 September 2019, Mr. A has not received notification of the reports of the

Department of Home Affairs or the Commonwealth Ombudsman’s assessments and

recommendations regarding his immigration detention arrangements, and the source believes

that his assessment number with the office of the Commonwealth Ombudsman may have

changed. Mr. A has discussed this issue with his case manager and has also made a freedom

of information request in this regard pertaining to the time period 2020–2022, to which he is

awaiting a response.

Discussion

107.

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

A/HRC/WGAD/2022/69

11

108.

In determining whether Mr. A’s deprivation of liberty 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 international requirements

constituting arbitrary detention, the burden of proof should be understood to rest upon the

Government if it wishes to refute the allegations. Mere assertions by the Government that

lawful procedures have been followed are not sufficient to rebut the source’s allegations.4

i.

Category I

109.

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 follows

the same pattern and concerns the same issue as those that proceed it, namely mandatory

immigration detention in Australian under the Migration Act (1958).5 The Working Group

once again reiterates its views on the Migration Act (1958).6

110.

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 such cases, the Government has argued that the detention is lawful purely

because it follows the stipulations of the Migration Act (1958).

111.

The Working Group once again wishes to emphasize that such arguments can never

be accepted as legitimate under 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 undermine international human rights law.

112.

The Working Group wished 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. For several years, the Government has been

consistently and repeatedly reminded of these obligations by numerous international human

rights bodies, including the Human Rights Committee,7 the Committee on Economic, Social

and Cultural Rights,8 the Committee on Elimination of Discrimination against Women,9 the

Committee on the Elimination of Racial Discrimination,10 the Special Rapporteur on the

human rights of migrants11 and the Working Group itself.12 The Working Group is concerned

that the consistent views of these independent international human rights mechanisms might

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.

113.

Noting the present case, and the numerous occasions upon which the Working Group

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

challenge to its obligations under international human rights law posed by the Migration Act

(1958), and noting the failure of the Government to take any action, the Working Group

concludes that the detention of Mr. A 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 numerous

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

5 Opinions No. 28/017; 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; No. 32/2022; No. 33/2022; and No.

42/2022.

6 Opinion No. 35/2020, paras. 98–103.

7 CCPR/C/AUS/CO/6, paras. 33–38.

8 E/C.12/AUS/CO/5, paras. 17–18.

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

10 CERD/C/AUS/CO/18-20, paras. 29–33.

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

12 See, 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;

No. 17/2021, paras. 125–128; No. 68/2021, No. 69/2021, No. 28/2022, No. 32/2022 and No. 33/2022.

A/HRC/WGAD/2022/69

12

occasions by international human rights mechanisms, cannot be accepted as a valid legal

basis for detention, in particular noting the findings of the Working Group under categories

II and V below.

ii.

Category II

114.

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

spent more than six and a half years in various detention settings in Australia since October

2010 and who remains in detention. Mr. A arrived in Australian waters on 11 October 2010

and was detained as an illegal maritime arrival. Thereafter, he remained in detention for 18

months until he was granted a bridging visa. Mr. A was detained a second time in August

2017, after being stopped on a criminal matter, although the charge was ultimately dismissed.

115.

Mr. A was arrested on 4 August 2017 and detained at a police facility. The next day,

on 5 August 2017, he was released from police custody, only to be detained again on the

same day under section 189 (1) of the Migration Act (1958). He is still detained.

116.

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, the Working Group observes that it is not disputed that Mr. A remains currently

detained under its provisions. The source argues that Mr. A is detained under the Migration

Act (1958) purely for the exercise of his rights under article 14 of the Universal Declaration

of Human Rights, which provides that “[e]veryone has the right to seek and to enjoy in other

countries asylum from persecution”. While the Government does not contest that the

detention of Mr. A is due to his migratory status, it nevertheless argues that such detention is

strictly in accordance with the Migration Act.

117.

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 relating to the Status of Refugees. The Working

Group notes that those instruments constitute international legal obligations that Australia

has undertaken.13 In fact, Mr. A arrived in Australia on 11 October 2010 and was immediately

detained. During his detention in Australia he has submitted various visa applications,

received rejections and made appeals against those rejections. Mr. A’s prolonged detention,

of over six years, has reportedly left him in poor health.

118.

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

as to when Mr. A’s detention might cease but that it has indicated that he is not willing to be

removed to the Islamic Republic of Iran voluntarily and that the Iranian Embassy is currently

not issuing travel documents to Iranians who would be removed involuntarily. Noting that he

has already been detained for more than six years, the Working Group is bound to conclude

that his detention appears indefinite.

119.

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.14

120.

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

No. 35 (2014), argued that:

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

13 See, for example, Opinions No. 28/2017; No. 42/2017; and No. 35/2020.

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

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13

individual, such as an individualized likelihood of absconding, a danger of crimes

against others or a risk of acts against national security.15

121.

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

in detention for over six years, spending time in various detention facilities in Australia. It is

not clear to the Working Group as to why, when Mr. A was initially detained, the Government

did not engage in an assessment of the need to detain him and no attempt was made to

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

circumstances, as required under international humanitarian law. In fact, throughout his time

in Australia, the authorities have never attempted to do so. The Working Group cannot accept

that detention for over six 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. A, 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.

122.

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

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

in Australia without a visa, where he was subjected to the automatic immigration detention

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

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

the Universal Declaration of Human Rights.

123.

Furthermore, while the Working Group acknowledges the Government’s argument

that article 26 of the Covenant does not create any right for aliens to reside in a country

subject to the Convention,16 it must nevertheless highlight that the Human Rights Committee

also makes it clear that aliens should 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.17 The Working

Group has declared, in this respect, that “[a]ny 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”.18

124.

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

under 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. A has been subjected to de facto indefinite detention as a result of his immigration status,

in clear breach of article 2, in conjunction with article 9, of the Covenant.

125.

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

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

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. A 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 humanitarian law. The Working

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

appropriate action.

iii.

Category IV

126.

The source argues that Mr. A 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

15 Human Rights Committee, general comment No. 35 (2014) (CCPR/C/GC/35, para. 18).

16 Human Rights Committee, general comment No. 15 (1986).

17 See, for example, Opinions No. 28/2022; No. 32/2022; and No. 33/2022; see also Human Rights

Committee, general comment No. 35 (2014) on liberty and security of persons, (CCPR/C/GC/35,

paras. 21 and 32).

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

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14

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

that the case of Mr. A has been reviewed by the Commonwealth Ombudsman 13 times.

127.

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 of

deprivation of liberty20 and applies to all situations of deprivation of liberty, including not

only to detention for purposes of criminal proceedings but also migration detention.21

128.

The Government has argued that the case of Mr. A has been repeatedly reviewed by

the Commonwealth Ombudsman. However, in doing so, the Government has not explained

how such reviews satisfy the requirement under article 9 (4) of the Covenant for a review of

legality of detention by a judicial body (emphasis added), a point that the Working Group

has already explained to the Government in earlier jurisprudence.22 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.

129.

The Government has also argued that the Minister for Home Affairs has reviewed the

detention of Mr. A. The Working Group observes, once again, as it has on previous

occasions,23 that this is a review by an executive body that does not satisfy the criterion set

out in article 9 (4) of the Covenant. The Government has failed to provide explanations for

the necessity of Mr. A’s detention other than his immigration status.

130.

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

various visa applications, rejections and challenges to those rejections since his detention on

5 August 2017. However, as the Working Group has already observed, there is no clear

explanation of the necessity to detain Mr. A, nor indeed the proportionality of such detention

to his individual circumstances. Rather, Mr. A’s claims have been assessed against the legal

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

examination above, the Migration Act (1958) is incompatible with the obligations of

Australia under international law and therefore assessments carried out in accordance with it

are equally incompatible with the requirements of international law.

131.

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

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

expiry of the period for detention set by law, detained persons must be automatically

released.25 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. This is a

situation akin to indefinite detention that cannot be remedied even by the most meaningful

review of detention on an ongoing basis.26

132.

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

detention due to his migratory status without the possibility of being able to challenge the

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

Covenant. This detention is therefore deemed arbitrary under category IV. In making this

finding, the Working Group also recalls the numerous findings by the Human Rights

Committee where the application of mandatory immigration detention in Australia and the

19 A/HRC/30/37, paras. 2–3.

20 Ibid., para. 11.

21 Ibid., para. 47 (a).

22 See Opinion 33/2022.

23 Ibid.

24 Revised deliberation No. 5, para. 18; see also Opinions 42/2017; No. 28/2017; No. 7/2019 and No.

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

25 Revised deliberation No. 5, para. 17, see also A/HRC/13/30, para. 61, and Opinion No. 7/2019.

26 See Opinions No. 1/2019 and No. 7/2019.

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15

impossibility of challenging such detention has been found to be in breach of article 9 of the

Covenant.27

iv.

Category V

133.

The Working Group notes the source’s argument that Mr. A, as a non-citizen, 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 the case of Al-Kateb v. Godwin (2004).

According to that decision, while Australian citizens can challenge administrative detention,

non-citizens cannot. In its reply, the Government denies those allegations, arguing that in this

case the High Court held that 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, were valid.

134.

The Working Group remains perplexed by the repeated explanation submitted by the

Government28 since 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 was not

reasonably practicable in the foreseeable future.

135.

As the Working Group has repeatedly noted, the Government fails to explain how

such non-citizens can effectively challenge their continued detention after such a 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 that end, the Working Group once again specifically recalls the

consistent 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 (2004) and

concluded that its effects were such that there was no effective remedy to challenge the

legality of continued administrative detention.29

136.

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

Committee on this matter,30 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. A is arbitrary,

falling under category V.

v.

Concluding remarks

137.

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

of Mr. A’s mental health, which has severely deteriorated during his months spent in

detention. Although the Working Group acknowledges the Government’s submissions

concerning the provision of health care for Mr. A, 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

27 See Human Rights Committee, Mr. C. v. Australia (CCPR/C/76/D/900/1999); Baban et al. v.

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

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

Australia (CCPR/C/79/D/1069/2002); D and E, and their two children v. Australia

(CCPR/C/87/D/1050/2002); Nasir v. Australia (CCPR/C/116/D/2229/2012); and F.J. et al. v.

Australia (CCPR/C/116/D/2233/2013).

28 See 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. 95–96; No. 70/2020, paras. 71–

73; No. 17/2021, paras. 120–123; and No. 32/2022, paras. 72–73.

29 See Human Rights Committee Mr. C. v. Australia (CCPR/C/76/D/900/1999); Baban et al. v.

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

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

Australia (CCPR/C/79/D/1069/2002); D and E and their two children v. Australia

(CCPR/C/87/D/1050/2002); Nasir v. Australia (CCPR/C/116/D/2229/2012); and F.J. et al. v.

Australia (CCPR/C/116/D/2233/2013), para. 9.3.

30 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. 28/2022; No. 32/2022; and No. 33/2022.

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16

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.

138.

Additionally, the Working Group would like to point out that Mr. A belongs to a

vulnerable minority in the Islamic Republic of Iran. According to his unrefuted submissions,

Mr. A and his family have been persecuted by the Iranian Government because of their ethnic

identity. The Government should consider this vulnerable position in its conduct towards Mr.

A. In relation to the principle of non-refoulement, as the Working Group stated in its revised

deliberation No. 5, “the principle of non-refoulement must always be respected, and the

expulsion of non-nationals in need of international protection, including migrants regardless

of their status, asylum-seekers, refugees and stateless persons, is prohibited by international

law”.31 The Working Group recalls that individuals should not be expelled to another country

when there are substitutional grounds for believing that their lives or freedom would be at

risk, or that they would be in danger of being subjected to torture or ill-treatment.32

139.

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

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

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

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

Disposition

140.

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

The deprivation of liberty of Mr. A, being in contravention of articles 2, 3, 7–9 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.

141.

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

to remedy the situation of Mr. A 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.

142.

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

account, the appropriate remedy would be to release Mr. A immediately and to accord him

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

law.

143.

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

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

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

144.

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.

145.

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 and 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.

146.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

31 A/HRC/39/45, annex, para. 43.

32 A/HRC/WGAD/2022/12, para. 84.

A/HRC/WGAD/2022/69

17

Follow-up procedure

147.

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

(b)

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

(c)

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

148.

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.

149.

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.

150.

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.33

[Adopted on 15 November 2022]

33 See Human Rights Council resolution 51/8, paras. 6 and 9.