Opinion; Subjects: AUSTRALIA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.23-08048 (E) 100523 110523
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-sixth session, 27 March–5 April 2023
Opinion No. 14/2023 concerning Gus Kuster (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 51/8.
2.
In accordance with its methods of work,1 on 9 November 2022 the Working Group
transmitted to the Government of Australia a communication concerning Gus Kuster. The
Government replied to the communication on 8 February 2023. 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).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2023/14
General Assembly
Distr.: General
11 May 2023
Original: English
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Submissions
Communication from the source
4.
Gus Kuster is a stateless person of Torres Strait Islander descent, born in Lorengau,
Papua New Guinea, on 31 October 1978. The Government of Papua New Guinea, however,
has no record of his birth there and does not recognize Mr. Kuster as a citizen.
5.
The source explains that Mr. Kuster’s grandmother was born in the Torres Strait
Islands and moved to Papua New Guinea for marriage. There are, however, no written
records of Mr. Kuster’s maternal family in the Torres Strait Islands. This is in keeping with
the deep oral traditions of family lore and the fact that no written records were kept in remote
communities. Mr. Kuster and his family identify themselves as Torres Strait Islanders. The
paternal side of Mr. Kuster’s family is European Australian.
6.
Mr. Kuster arrived in Australia on 9 September 1983 at the age of 4 with his family
and was granted a permanent entry permit upon arrival. On 1 September 1994, a legal
determination was made that he was the holder of a transitional (permanent) BF-C visa. Mr.
Kuster understood that, like his siblings, he was an Australian citizen. Mr. Kuster has never
left Australia.
7.
Mr. Kuster has criminal convictions for various offences, for which he has received
fines, been subject to numerous court orders and been sentenced to terms of imprisonment
ranging from seven days to two years. On 20 December 2017, Mr. Kuster was convicted of
contravening a domestic violence order (aggravated offence) and sentenced to 12 months’
imprisonment. On 21 December 2017, Mr. Kuster’s visa was mandatorily cancelled by a
delegate of the Minister for Home Affairs under section 501 (3A) of the Migration Act 1958,
due to his having a substantial criminal record, as defined by the Act. At that time, Mr. Kuster
was serving a custodial sentence at the Woodford Correctional Centre. A notice of visa
cancellation was sent to Mr. Kuster. It was at this time that Mr. Kuster realized that he was
not an Australian citizen.
8.
On 18 January 2018, Mr. Kuster made a request for revocation of the mandatory visa
cancellation under section 501 (3A) of the Migration Act. On 24 January 2018, the Minister
received the request and, on 29 January 2018, informed Mr. Kuster that the request was
invalid.
9.
On 14 March 2018, Mr. Kuster lodged an application for a review of the determination
of the Department of Home Affairs that he had not made a valid request for revocation to the
Administrative Appeals Tribunal. On 13 April 2018, the Tribunal found that it had no
jurisdiction to review Mr. Kuster’s visa cancellation, as Mr. Kuster had not sought review
within the relevant time frame.
10.
On 23 July 2018, Mr. Kuster was released from the correctional institution and, on the
same day, was detained by officials from the Department of Home Affairs under section 189
of the Migration Act. The source explains, that upon cancellation of Mr. Kuster’s Class BF
transitional (permanent) visa under section 501 (3A) of the Migration Act, Mr. Kuster
became an unlawful non-citizen. As required by section 189, an officer must detain an
unlawful non-citizen.
11.
The Migration 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 removed or
deported from Australia, or granted a visa. Section 196 (3) specifically provides that even a
court cannot release an unlawful non-citizen from detention unless the person has been
granted a visa. In addition, section 501 (3A) of the Migration Act provides that the Minister
must cancel a person’s visa if the Minister is satisfied that the person does not pass the
character test because they have a substantial criminal record and are serving a sentence of
imprisonment on a full-time basis at a custodial institution for an offence against an
Australian law.
12.
On 31 July 2018, Mr. Kuster was referred for removal. It appears that, in the time
period between 31 July 2018 and 16 April 2019, steps were taken towards removing Mr.
Kuster, although his citizenship status was never finalized, and the matter was addressed only
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on 20 May 2020. On 13 February 2019, Mr. Kuster’s representatives wrote to the Minister
requesting a review of his case owing to the exceptional circumstances.
13.
On 20 February 2019, the High Commission of Papua New Guinea wrote to a
departmental officer at the Australian Border Force, copying the Department of Foreign
Affairs and Trade, stating that Papua New Guinea had no records showing that Mr. Kuster
was a citizen of that country. The Commission reaffirmed that Mr. Kuster was not a citizen
of Papua New Guinea and therefore could not be deported to that country.
14.
On 4 March 2019, the departmental officer noted that Mr. Kuster’s request for a
review of his case due to exceptional circumstances raised claims about his Australian
citizenship, which, based upon a cursory view of the file, did not appear to have been
assessed.
15.
On 16 April 2019, the Australian Border Force notified Mr. Kuster of the acceptance
of the revocation request and, on 23 May 2019, Mr. Kuster’s case was allocated to a
revocation officer. On 6 June 2019, Mr. Kuster provided the Force with a personal
circumstances form and a statement in relation to the revocation request.
16.
On 20 June 2019, Mr. Kuster requested voluntary removal from Australia. The source
recalls that the departmental officers noted the citizenship concerns regarding Papua New
Guinea and requested further information relevant to the decision under section 501 (3A) of
the Migration Act on whether to revoke the original decision to cancel his visa. The source
further recalls that this request was made more than two months after the department had
accepted the revocation request as valid and related to information dating to 2018 and to a
departmental file note regarding Mr. Kuster’s son, created the day before the request for
further information was made. Mr. Kuster received an extension of the deadline, to 15 August
2019, to reply.
17.
On 20 August 2019, a departmental officer decided not to wait for further submissions
from Mr. Kuster and to move to finalize the submission of the request for voluntary removal.
Departmental officers started preparing the submission and a draft statement of the reasons
for a decision.
18.
On 21 August 2019, Mr. Kuster attempted voluntary departure to Papua New Guinea
and was denied entry, as the Immigration and Citizenship Authority of Papua New Guinea
was not satisfied that he was a citizen of the country. Mr. Kuster was returned to detention in
Australia pending the decision on his request for revocation of the mandatory cancellation of
his visa, which he had lodged on 18 January 2018. Subsequent review of Mr. Kuster’s case,
in November 2020, five months after the voluntary deportation attempt to Papua New
Guinea, determined that Mr. Kuster was stateless.
19.
The source highlights the fact that considerable delay occurred in the consideration of
the revocation request such that Mr. Kuster sought judicial review of the unreasonable delay.
The case was scheduled for a hearing on 16 April 2021. On 12 April 2021, the Minister
decided not to revoke the cancellation of Mr. Kuster’s visa. Mr. Kuster sought review of the
decision in the Federal Court.2 On 23 November 2021, the Federal Court found for the
Minister, and Mr. Kuster’s appeal based on unreasonable delay in the consideration of the
visa revocation request was dismissed.
20.
In February 2022, Mr. Kuster applied for Australian citizenship. On 31 May 2022, the
Department of Home Affairs invited Mr. Kuster to provide further comments in relation to
his application for Australian citizenship, specifically with regard to his criminal history and
citizenship status (i.e. statelessness), in a letter entitled “Invitation to comment on adverse
information: application for Australian citizenship by descent”. On 27 June 2022, Mr. Kuster
responded to the invitation to comment.
21.
The source submits that Mr. Kuster’s mental health has increasingly deteriorated
during his period in immigration detention. He suffers from depression, anxiety and suicidal
ideation, for which he is being medicated. He is also taking medication for depression and
2 Federal Court of Australia, Kuster v. Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs, File No. NSD 457of 2021, Judgment, 23 November 2021.
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has requested mental health support while in immigration detention. For example, on 30
August 2019, a delegate of the Minister for Home Affairs in the Character and Cancellations
Branch of the Department of Home Affairs referred Mr. Kuster’s case for escalation to the
Assistant Secretary of the Branch, citing concerns about Mr. Kuster’s significant mental and
physical health issues. The delegate also confirmed that Mr. Kuster was taking medication
for depression, anxiety, panic attacks, skin rashes, depigmentation, asthma and headaches.
22.
Mr. Kuster’s open-ended and continued lengthy detention and complex series of
appeals and the uncertainty of his visa situation have both caused and exacerbated his mental
health issues. On 25 July 2022, Mr Kuster was diagnosed with coronavirus disease (COVID-
19) and was transferred to a quarantine hotel. He remains in detention.
23.
The source submits that Mr. Kuster’s detention as an unlawful non-citizen under
section 189 (1) of the Migration Act is arbitrary because there is no consideration of the
unique circumstances of this individual and the ways in which those circumstances affect the
appropriateness of his immigration detention. It is noted that once a person becomes an
unlawful non-citizen, there is no assessment of whether the person’s detention is reasonable,
necessary and proportionate in the light of the circumstances, nor is it appropriately
reassessed by an independent body as it extends in time. The Minister for Home Affairs has
the power, under section 195 A of the Migration Act, to release Mr. Kuster from detention.
However, the source notes that that power is non-compellable and non-reviewable.
24.
The source also submits that Mr. Kuster has been deprived of liberty and of his rights
guaranteed under article 7 of the Universal Declaration of Human Rights, which provides
that all are equal before the law and are entitled without any discrimination to equal protection
of the law. The source recalls that Mr. Kuster has been detained since 23 July 2018, following
his release from prison.
25.
According to the source, Mr. Kuster has also been deprived of his rights in
contravention of article 26 of the International Covenant on Civil and Political Rights, in
which it is stated that all people are entitled without any discrimination to the equal protection
of the law. Both article 7 of the Universal Declaration and article 26 of the Covenant have
been violated because, as a non-citizen, Mr. Kuster is unable to effectively challenge his
detention. The source states that Australian citizens are not subject to the Migration Act and,
as such, are not subject to indefinite or open-ended immigration detention.
26.
The source recalls that the Minister, in the statement of reasons for cancellation of the
visa dated 12 April 2021, accepted that it was not reasonably practicable to remove Mr.
Kuster from Australia to Papua New Guinea or to remove him to another country, and found
the possibility of indefinite detention for Mr. Kuster to weigh in favour of revocation of the
cancellation of his visa. The Minister also noted that it was unclear whether and when Mr.
Kuster’s removal from Australia would become reasonably practicable.
27.
The source notes that immigration detention is described by the Department of Home
Affairs as a last resort and reserved for a very small proportion of those whose citizenship
status requires resolution, sometimes through protracted legal proceedings. This is not the
case for Mr. Kuster, who has been clear from the outset that he is stateless and not a citizen
of Papua New Guinea.
28.
The source recalls that the Human Rights Committee, in its general comment No. 35
(2014) on liberty and security of person, required that detention be justified as reasonable,
necessary and proportionate in the light of the circumstances and reassessed as it extended in
time. In this context, it is submitted that Mr. Kuster has been held in administrative detention
for over four years. There is no mechanism under Australian law to challenge such detention
because it is authorized by the Migration Act and by case law.
29.
The source argues that Mr. Kuster has no effective right to appeal his detention under
Australian law. It notes that the High Court of Australia, in Al-Kateb v. Godwin,3 upheld the
mandatory detention of non-citizens as a practice that is not contrary to the Constitution of
3 High Court of Australia, Case No. A253/2003, Order, 6 August 2004.
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Australia. It further notes that the Human Rights Committee, in Mr. C. v. Australia,4 held that
there was no effective remedy for people subject to mandatory detention in Australia.
30.
Finally, the source submits that Mr. Kuster was deprived of his liberty for reasons of
discrimination. It states that Australian citizens and non-citizens are not equal before the
courts and tribunals of Australia. The decision of the High Court of Australia in Al-Kateb v.
Godwin stands for the proposition that the detention of non-citizens pursuant to, inter alia,
section 189 of the Migration Act does not contravene the Constitution. The effective result
of this is that while Australian citizens can challenge administrative detention, non-citizens
cannot.
31.
The source concludes by stating that Mr. Kuster has taken all the necessary steps to
seek his release from arbitrary detention in Australia and to use the appeal avenues available
to him by law. He has also made a complaint regarding his detention to the Australian Human
Rights Commission. The Commission, however, does not have the power to order Mr.
Kuster’s release from detention. Furthermore, while the Commonwealth Ombudsman
reviews places of detention and the department of Home Affairs is required to provide a
report to the Ombudsman on the detention of people detained for more than two years, the
Ombudsman has no power to order the release of a person from detention. Finally, the
department has an internal detention review committee, which reviews the legality of a
person’s detention on a monthly basis. This committee, however, is not independent nor is it
a judicial or administrative body to which submissions can be made.
Response from the Government
32.
On 9 November 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, by 9 January 2023, detailed information about the
current situation of Mr. Kuster and to clarify the legal provisions justifying his continued
detention and its compatibility with the country’s obligations under international human
rights law, in particular with regard to the treaties ratified by the State. Moreover, the
Working Group called upon the Government of Australia to ensure Mr. Kuster’s physical
and mental integrity.
33.
On 10 November 2022, the Government requested an extension of the time limit, in
accordance with paragraph 16 of the Working Group’s methods of work, and was granted a
new deadline of 9 February 2023.
34.
In its reply, dated 8 February 2023, the Government stated that Mr. Kuster had been
born in Papua New Guinea, that he was of Torres Strait Islander descent and had arrived in
Australia on 9 September 1983 at the age of 4 as a dependant. He was granted a permanent
entry permit on arrival, which subsequently became a transitional (permanent) BF-C visa, on
1 September 1994.
35.
On 21 December 2017, Mr. Kuster’s visa was mandatorily cancelled by a delegate of
the Minister under section 501 (3A) of the Migration Act due to his substantial criminal
record and the fact he was serving a sentence of imprisonment, on a full-time basis in a
custodian institution, for an offence against a law of the Commonwealth, a state or a territory.
The Government submits that Mr. Kuster’s extensive criminal history dates from 1993 and
includes convictions for drug possession, weapons possession, breach of bail, breach of
probation, dangerous driving, assault and property- and domestic violence-related offences.
36.
Mr. Kuster is currently being held at the Brisbane Immigration Transit
Accommodation Centre in Pinkenba, as he is an unlawful non-citizen who does not hold a
visa that is currently in effect (see sections 13 and 14 of the Migration Act).
37.
Mr. Kuster was denied entry to Papua New Guinea on 21 August 2019 while
attempting voluntary departure. Upon his arrival in Port Moresby, Mr. Kuster was held on
the plane and flown back to Australia, as the Immigration and Citizenship Authority of Papua
New Guinea was not satisfied that Mr. Kuster was a citizen of the country.
4 CCPR/C/76/D/900/1999.
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38.
The Immigration and Citizenship Authority maintains that Mr. Kuster, despite having
been born in Papua New Guinea, does not hold Papua New Guinean citizenship and that,
under current legislation, he is ineligible for citizenship by descent under section 66 (3) of
the Constitution, as he was born after Papua New Guinea Independence Day. In order for
him to apply for Papua New Guinean citizenship, he would need to have resided in the
country during the three preceding years and meet character requirements. He is currently
unable to satisfy either requirement. As such, he cannot presently be removed to Papua New
Guinea.
39.
However, as a result of information provided to the Department of Home Affairs by
the High Commission of Papua New Guinea, notwithstanding the views of the Immigration
and Citizenship Authority dating to 21 August 2019, the department continues to make
enquiries with the authorities of Papua New Guinea into Mr. Kuster’s citizenship status.
These enquiries remain open.
40.
According to the Government, Mr. Kuster is currently being detained for the purpose
of removal to another country. However, removal is not possible while the status of his Papua
New Guinean citizenship remains contested. He is also being detained for the purpose of
allowing the Minister for Home Affairs to determine whether the visa cancellation should be
revoked. A submission will be referred to the Minister for consideration, once Mr. Kuster’s
Papua New Guinean citizenship status has been clarified.
41.
The Government further explained that Mr. Kuster first entered Australia with his
family at the age of 4 on 9 September 1983 and had been granted a permanent entry permit
upon arrival. On 1 September 1994, he was deemed to hold a transitional (permanent) BF-C
visa by operation of law. In July 2011 and August 2014, consideration was given to
cancelling Mr. Kuster’s transitional (permanent) visa on character grounds, but on both
occasions, Mr Kuster’s visa was not cancelled and he was issued a warning.
42.
On 28 November 2017, Mr. Kuster was convicted of the contravention of a domestic
violence order (aggravated offence), for which he was sentenced to a 12-month suspended
term of imprisonment. On 4 December 2017, his parole was suspended and he was returned
to prison to serve the remainder of his sentence. As a result, on 21 December 2017, Mr.
Kuster’s visa was mandatorily cancelled under section 501 (3A) of the Migration Act on the
basis of his full-time imprisonment and his substantial criminal record.
43.
On 24 January 2018, the Minister’s office received Mr. Kuster’s request for the
revocation of his visa cancellation. The revocation request was initially deemed invalid on
the basis of having been lodged outside the required time frame, but it was later accepted as
having been made in the prescribed manner and within the prescribed time frame.
44.
On 20 June 2019, Mr. Kuster requested voluntary removal from Australia. On 21
August 2019, he left Australia under escort on a commercial flight to Papua New Guinea.
Despite appropriate travel documentation having been obtained through the High
Commission of Papua New Guinea, Mr. Kuster was refused entry upon his arrival, resulting
in his subsequent return, under escort, to Australia. The authorities of Papua New Guinea
believed that Mr. Kuster was not a Papua New Guinean citizen, contrary to the understanding
of the Department of Home Affairs, especially following its engagement with the High
Commission prior to Mr. Kuster’s removal. Mr. Kuster’s request for revocation remained
open during this time.
45.
On 3 February 2022, Mr. Kuster lodged a valid application for Australian citizenship
by descent on the basis of having been born outside of Australia to a father who was an
Australian citizen at the time of Mr. Kuster’s birth.
46.
On 6 July 2022, the Australian Border Force attended a meeting with the High
Commission of Papua New Guinea in Canberra in order to confirm Mr Kuster’s citizenship
status for the purposes of removal to Papua New Guinea. On 12 July 2022, the Australian
Border Force consulted the First Secretary at the Australian High Commission in Papua New
Guinea, in Port Moresby, requesting assistance with approaching the authorities in Papua
New Guinea to seek clarification on Mr. Kuster’s citizenship. These enquiries remain open.
47.
On 15 December 2022, Mr. Kuster’s application for Australian citizenship by descent
was refused under the Australian Citizenship Act 2007 on the grounds that he did not meet
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the character requirements. On the day of the refusal, Mr. Kuster applied to the
Administrative Appeals Tribunal for a review of this decision. The Tribunal review
proceedings remain ongoing.
48.
On 4 January 2023, the Department commenced a ministerial intervention process to
assess Mr. Kuster’s case under the ministerial guidelines set out in sections 195 A and 197
AB of the Migration Act. The department’s assessment remains ongoing.
49.
The Government also provided a detailed record of Mr. Kuster’s state of health. In
particular, it was submitted that he had a history of substance abuse that predated his
immigration detention, in particular a history of alcohol, cannabis and amphetamine use. The
Government also maintained that Mr. Kuster had a long history of mental health issues, in
addition to some physical health issues, and that all his health issues had been addressed.
50.
Referring to the relevant provisions in domestic legislation, the Government submits
that detention in an immigration detention centre is a last resort for the management of
unlawful non-citizens. Mr. Kuster remains in immigration detention, in accordance with
Australian law, because he is an unlawful non-citizen and thus lawfully detained under
subsection 189 (1) of the Migration Act, consistent with the international obligations of
Australia.
51.
Under section 189 of the Migration Act, an individual must be detained if an officer
knows or reasonably suspects that the individual is an unlawful non-citizen. Under section
196 of the Migration Act, unlawful non-citizens must be kept in immigration detention until
they are removed from Australia or granted a visa.
52.
Section 195 A of the Migration Act provides the Minister with the power to grant a
visa to a person in immigration detention if the Minister thinks that it is in the public interest
to do so. In addition, section 197 AB of the Migration Act provides the Minister with the
power to make a residence determination in respect of persons in immigration detention by
allowing them to reside in the community at a specified place and under specified conditions,
if the Minister thinks that it is in the public interest to do so.
53.
The department has been issued ministerial intervention guidelines to assess whether
a case should be referred to the Minister for consideration of the exercise of the Minister’s
personal intervention powers. Cases are referred for ministerial consideration only if they are
assessed as meeting those guidelines.
54.
The Minister’s public interest powers under sections 195 A and 197 AB of the
Migration Act are non-compellable, that is, the Minister is under no obligation to exercise or
to consider exercising those powers. Furthermore, what is in the public interest is a matter
for the Minister to determine.
55.
If a person holds a visa that is subsequently cancelled, that person can seek to have
the legality of the cancellation decision reviewed through the domestic judicial processes of
Australia. Furthermore, the Government is obliged, in all proceedings before courts, to act as
a model litigant. The model litigant obligation requires the Commonwealth to act honestly
and fairly in handling claims and litigation brought by or against the Commonwealth or an
agency. The obligation includes a duty not to take advantage of a claimant who lacks the
resources to litigate a legitimate claim. The obligation also includes a duty to adhere to the
highest professional standards, including by assisting the court to arrive at the proper and just
result.
56.
The Government submits that the Department has reported to the Commonwealth
Ombudsman regarding Mr. Kuster on eight occasions, most recently in August 2022.
57.
The position of the Government is that the detention of an individual on the basis of
their being an unlawful non-citizen is not arbitrary under international law if it is reasonable,
necessary and proportionate in the light of the particular circumstances of the individual.
However, continuing detention may become arbitrary if it is no longer reasonable, necessary
and proportionate in the circumstances. 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, detention is not limited by a set time frame, but
rather is dependent upon a number of factors based on an individual’s circumstances,
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including identity determination, developments in country information, health, character and
security matters.
58.
Detention in an immigration detention centre is a last resort for the management of
unlawful non-citizens. Mr. Kuster remains in immigration detention in accordance with
Australian law because he is an unlawful non-citizen, as he does not hold a visa that is in
effect, and because, on the basis of his individual circumstances, immigration detention is
considered to be the most appropriate form of detention. The Government attempted to
voluntarily remove Mr. Kuster to Papua New Guinea. However, upon his arrival, he was not
recognized as a Papua New Guinean citizen and was immediately returned to Australia.
59.
In the most recent report of the Ombudsman, it was noted that Mr. Kuster was
precluded from lodging a valid bridging visa E application, in accordance with section 501
E of the Migration Act. He requires ministerial intervention to be granted such a visa or to be
placed in the community.
60.
Immigration detention is administrative in nature and not for punitive purposes. The
Government is committed to ensuring that all individuals in immigration detention are treated
in a manner consistent with the legal obligations of Australia. The ongoing detention of Mr.
Kuster is justifiable and not arbitrary and is consistent with the Covenant.
Further comments from the source
61.
On 9 February 2023, the reply of the Government was sent to the source for further
comments, which the source provided on 23 February 2023. The source suggests that the
response of the Government relating to the reasons that Mr. Kuster’s citizenship application
was refused is misleading and insists that Mr. Kuster’s citizenship application was refused:
(a) because the Department of Home Affairs did not accept that Mr. Kuster was stateless; and
(b) owing to character considerations. Had the department accepted that Mr. Kuster was
stateless, he would have been eligible, under Australian law, for citizenship, which should
have been granted.
62.
The claim by the Government that detention in an immigration detention centre is
used as a last resort in the management of unlawful non-citizens is misleading. Section 189
of the Migration Act provides that if an officer knows or reasonably suspects that a person in
the migration zone (other than an excised offshore place) is an unlawful non-citizen, the
officer must detain the person. There is no discretion. This section creates a positive duty for
Commonwealth officers to detain any person that they believe is an unlawful non-citizen.
The government response fails to explain how statutorily based mandatory detention is a last
resort.
63.
The source recalls that the Working Group has delivered more than 20 opinions in
relation to the breach of international human rights standards by Australia through its
mandatory immigration detention regime. It reiterates that Mr. Kuster’s detention is arbitrary
as it is required as a first resort under the Migration Act. Furthermore, the Working Group
has previously held that the detention of refugees and stateless people by Australia is
inconsistent with the Covenant. The Government cannot therefore claim that its actions are
consistent with the Covenant.
Discussion
64.
The Working Group thanks the source and the Government for their submissions.
65.
In determining whether the deprivation of liberty of Mr. Kuster is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has presented a prima facie case for breach of international
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.5
5 A/HRC/19/57, para. 68.
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Category I
66.
The Working Group refers to its line of jurisprudence in relation to Australia. Since
2017, the Working Group has considered 20 cases, all of which concern the same issue,
namely mandatory immigration detention in Australia in accordance with the Migration Act
1958.6 The Working Group reiterates its views on the Migration Act.7
67.
The Working Group furthermore reiterates its alarm that, in all these cases, the
Government has argued that the detention is lawful purely because it follows the stipulations
of the Migration Act. The Working Group once again wishes to clarify 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 under international human rights law. No
State can legitimately avoid its obligations under international human rights law by citing its
domestic laws and regulations.
68.
The Working Group again emphasizes that it is the duty of the Government to bring
its national legislation, including the Migration Act, into alignment with its obligations under
international human rights law. Since 2017, the Government has been consistently and
repeatedly reminded of these obligations by numerous international human rights bodies,
including the Human Rights Committee,8 the Committee on Economic, Social and Cultural
Rights, 9 the Committee on the Elimination of Discrimination against Women, 10 the
Committee on the Elimination of Racial Discrimination,11 the Special Rapporteur on the
human rights of migrants12 and the Working Group.13 The Working Group calls upon the
Government to urgently review the Migration Act in the light of its obligations under
international human rights law.
69.
Noting this and the numerous occasions on which the Working Group and other
United Nations human rights bodies and mechanisms have alerted the Government of
Australia to the affront to its obligations under international human rights law posed by the
Migration Act, and noting the failure of the Government to take any action, the Working
Group concludes that the detention of Mr. Kuster 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, cannot be accepted as a valid legal basis for detention, especially in the light of
the findings below.
Category II
70.
The Working Group observes that Mr. Kuster arrived in Australia on 9 September
1983, aged 4, with his family, was granted a permanent entry permit upon arrival, which was
subsequently replaced with a permanent visa, and since that time, was free to live in the
community. He served terms of imprisonment in the criminal justice context in 2017 and was
then moved to immigration detention due to the mandatory cancellation of his visa as a result
of his imprisonment. Following an unsuccessful attempt to enter Papua New Guinea, he
remains in immigration detention for the purpose of removal to another country. The
Government, however, admits that his removal is not possible while the status of his Papua
New Guinean citizenship is still contested. He is also detained for the purpose of allowing
6 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, No. 32/2022 and No. 42/2022.
7 Opinion No. 35/2020, paras. 98–103.
8 CCPR/C/AUS/CO/6, paras. 33–38.
9 E/C.12/AUS/CO/5, paras. 17 and 18.
10 CEDAW/C/AUS/CO/8, paras. 53 and 54.
11 CERD/C/AUS/CO/18-20, paras. 29–33.
12 See A/HRC/35/25/Add.3.
13 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. 115–117; No. 35/2020, paras. 98–103; and No. 17/2021, paras. 125–
128.
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the Minister for Home Affairs to determine, once Mr. Kuster’s Papua New Guinean
citizenship status has been clarified, whether the visa cancellation should be revoked.
71.
Notwithstanding the views and findings of the Working Group regarding the
Migration Act and its compatibility with the obligations of Australia under international
human rights law, the Working Group observes that it is not disputed that Mr. Kuster remains
detained today on the basis of that Act. The source argues that Mr. Kuster is detained in
violation of article 26 of the Covenant and article 7 of the Universal Declaration of Human
Rights.
72.
The Working Group notes that the Government has given no indication as to when
Mr. Kuster’s detention could end. Noting that he has already been detained for about four
years, the Working Group is bound to conclude that his detention appears to be indefinite.
73.
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 This echoes the views of the Human Rights Committee, which stated, in paragraph
18 of its general comment No. 35 (2014), 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 individual, such as an individualized likelihood of absconding, a danger of crimes
against others or a risk of acts against national security.
74.
The Working Group cannot accept that detention for over four years could be
described as a brief initial period, to use the language of the Human Rights Committee. The
Government has not presented any particular reason specific to Mr. Kuster, such as an
individualized likelihood of absconding, a danger of crimes against others or a risk of acts
against national security, that would justify his detention. The Working Group also notes Mr.
Kuster’s health problems as a significant factor in favour of his release. The Working Group
concludes that there was no reason for detaining Mr. Kuster other than his migration status.
As his visa was mandatorily cancelled due to his criminal conviction, as required by the
Migration Act, he has been subjected to the automatic immigration detention policy. The
Working Group concludes that Mr. Kuster was detained due to the exercise of his legitimate
rights under article 14 of the Universal Declaration of Human Rights.
75.
Furthermore, while the Working Group agrees with the argument presented again by
the Government in relation to article 26 of the Covenant, it must nevertheless emphasize that
the Human Rights Committee, in its general comment No. 15 (1986), quoted 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 the person”.15
76.
Mr. Kuster is therefore entitled to the right to liberty and security of person, as
guaranteed in article 9 of the Covenant, and, when guaranteeing these rights to him, Australia
must ensure that it is done without distinction of any kind, as required by article 2 of the
Covenant. Mr. Kuster has been subjected to de facto indefinite detention due to his
immigration status, in clear breach of articles 2 and 9 of the Covenant.
77.
Noting that Mr. Kuster has been detained due to 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 to be arbitrary, falling under category II.
In making this finding, the Working Group notes the submission of the Government that Mr.
Kuster has always been treated in accordance with the stipulations of the Migration Act. Be
that as it may, 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.
14 A/HRC/39/45, annex, para. 12.
15 Paras. 2 and 7.
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Category IV
78.
The source has argued that Mr. Kuster has been subjected to prolonged administrative
custody without 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. Kuster has been reviewed by the
Commonwealth Ombudsman.
79.
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.16 This right, which is a peremptory norm of international law, applies to all forms of
deprivation of liberty17 and to all situations of deprivation of liberty, including not only
detention for purposes of criminal proceedings, but also migration detention.18
80.
The facts of Mr. Kuster’s case since his immigration detention, as presented to the
Working Group, are characterized by various visa and citizenship applications, their rejection
and challenges to those rejections. However, as already observed by the Working Group,
none of these has concerned the necessity to detain Mr. Kuster or indeed the proportionality
of such detention to his individual circumstances. Rather, these actions assessed the claims
of Mr. Kuster against the legal framework set out by the Migration Act. As is evident by the
Working Group’s examination, as set out above, the Migration Act is incompatible with the
obligations of Australia under international law and the assessments carried out in accordance
with the Migration Act are therefore equally incompatible with the requirements of
international human rights law.
81.
The Government has argued that the case of Mr. Kuster is 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 legality of
detention by a judicial body, a point that the Working Group has already explained to the
Government in earlier jurisprudence.19 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.
82.
The Government has also argued that the Minister has reviewed the detention of Mr.
Kuster. Noting that this is a review by an executive body, the Working Group observes, as it
has on previous occasions,20 that it does not satisfy the criteria of article 9 (4) of the Covenant.
83.
The Working Group therefore concludes that, during his more than four years of
detention, no judicial body has been involved in the assessment of the legality of Mr. Kuster’s
detention and notes that international human rights law requires that such consideration by a
judicial body necessarily involves an assessment of the legitimacy, necessity and
proportionality of detention.21
84.
The Working Group must therefore reiterate that the indefinite detention of
individuals in the course of migration proceedings cannot be justified and is arbitrary,22 which
is why the Working Group has required that a maximum period for detention in the course
of migration proceedings must be set by legislation and, upon the expiry of the period for
detention set by law, the detained person must automatically be released.23 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, which cannot be remedied, even by the most meaningful review of detention on
16 A/HRC/30/37, paras. 2 and 3.
17 Ibid., para. 11.
18 Ibid., para. 47 (a).
19 Opinion No. 69/2021, para. 126.
20 See, for example, opinion No. 32/2022.
21 A/HRC/39/45, annex, paras. 12 and 13.
22 Ibid., para. 26. See also opinions No. 28/2017, No. 42/2017, No. 7/2019 and No. 35/2020; and
A/HRC/13/30, para. 63.
23 A/HRC/39/45, annex, para. 25. See also A/HRC/13/30, para. 61; and opinion No. 7/2019.
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an ongoing basis.24 As the Working Group stated in paragraph 27 of 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 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.
85.
The Working Group recalls the numerous findings by the Human Rights Committee
that the application of mandatory immigration detention in Australia and the impossibility of
challenging such detention is in breach of article 9 (1) of the Covenant.25 Moreover, as the
Working Group notes 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.26 In the
case of Mr. Kuster, the Working Group has already established that no alternatives to
detention have been considered.
86.
Moreover, despite the claims of the Government to the contrary, the Working Group
considers that the detention of Mr. Kuster is, in fact, punitive in nature, which, as it
highlighted in its revised deliberation No. 5, should never be the case27 and is in breach of
article 9 of the Covenant. Presently, Mr. Kuster has been detained for over four years and the
Government has not been able to identify how long his detention will last, which means that
it is de facto indefinite.
87.
Consequently, the Working Group finds that Mr. Kuster has been subjected to de facto
indefinite detention due to his migratory status without the possibility of challenging the
legality of such detention before a judicial body, which is the right encapsulated in article 9
(4) of the Covenant. This is therefore arbitrary, falling under category IV. In making this
finding, the Working Group also recalls the numerous findings by the Human Rights
Committee in which the application of mandatory immigration detention in Australia and the
impossibility of challenging such detention have been found to be in breach of article 9 of
the Covenant.28
Category V
88.
The Working Group notes the source’s argument that Mr. Kuster, 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 Al-Kateb v. Godwin.
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
that case, the High Court held that the provisions of the Migration Act requiring the detention
of non-citizens until they were removed, deported or granted a visa, even if removal were not
reasonably practicable in the foreseeable future, were valid. The decision in Al-Kateb v.
Godwin does not alter the ability of non-citizens to challenge the lawfulness of their detention
under Australian law.
24 See opinions No. 1/2019 and No. 7/2019.
25 C. v. Australia (CCPR/C/76/D/900/1999); Baban and Baban v. Australia (CCPR/C/78/D/1014/2001);
Shafiq v. Australia (CCPR/C/88/D/1324/2004); Shams et al. v. Australia
(CCPR/C/90/D/1255,1256,1259,1260,1266,1268,1270&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).
26 A/HRC/13/30, para. 59; E/CN.4/1999/63/Add.3, para. 33; A/HRC/19/57/Add.3, para. 68 (e);
A/HRC/27/48/Add.2, para. 124; A/HRC/30/36/Add.1, para. 81; and opinions No. 72/2017 and No.
21/2018.
27 A/HRC/39/45, annex, paras. 9 and 14. See also opinion No. 49/2020, para. 87.
28 C. v. Australia; Baban and Baban. v. Australia; Shafiq v. Australia; Shams et al. v. Australia;
Bakhtiyari et al. v. Australia; D et al v. Australia; Nasir v. Australia; and F.J. et al. v. Australia.
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89.
The Working Group remains perplexed by the repeated explanation submitted by the
Government,29 since this confirms only that the High Court has affirmed the legality of the
detention of non-citizens until they are removed, deported or granted a visa, even if removal
is not reasonably practicable in the foreseeable future.
90.
However, as the Working Group has repeatedly noted, the Government is failing to
explain how such non-citizens can effectively challenge their continued detention after that
decision of the High Court, which is what the Government must show in order to comply
with articles 9 and 26 of the Covenant. To this end, the Working Group once again
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
and concluded that its effects were such that there was no effective remedy to challenge the
legality of continued administrative detention.30
91.
As in the past, the Working Group cannot but again concur with the views of the
Human Rights Committee on this matter,31 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.
Kuster is arbitrary, falling under category V.
Concluding remarks
92.
The Working Group makes its determination without prejudice to other criminal
proceedings to which Mr. Kuster is subjected. Moreover, it wishes to place on record its very
serious concern regarding the state of Mr. Kuster’s mental and physical health. Although the
Working Group acknowledges submissions by the Government concerning the health-care
provision for Mr. Kuster, it nevertheless reminds the Government that article 10 of the
Covenant requires that all persons deprived of their liberty are to be treated with respect for
their human dignity, and that this also applies to those held in the context of migration.32 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. 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.33 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.
93.
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 practicable. 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
94.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Gus Kuster, 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
29 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 and 96; No. 70/2020, paras. 71–
73; No. 17/2021, paras. 120–123; and No. 32/2022, paras. 72 and 73.
30 C. v. Australia; Baban and Baban. v. Australia; Shafiq v. Australia; Shams et al. v. Australia;
Bakhtiyari et al. v. Australia; D et al. v. Australia; Nasir v. Australia; and F.J. et al. v. Australia, para.
9.3.
31 See also 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.
32 See also deliberation No. 12 (A/HRC/48/55, annex).
33 A/HRC/39/45, annex, para. 38.
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International Covenant on Civil and Political Rights, is arbitrary and falls within
categories I, II, IV and V.
95.
The Working Group requests the Government of Australia to take the steps necessary
to remedy the situation of Mr. Kuster 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.
96.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Kuster immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law.
97.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Kuster and to take appropriate measures against those responsible for the violation of his
rights.
98.
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.
99.
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 the Special
Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health, for appropriate action.
100.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
101.
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. Kuster has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Kuster;
(c)
Whether an investigation has been conducted into the violation of Mr. Kuster’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.
102.
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.
103.
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.
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104.
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.34
[Adopted on 29 March 2023]
34 Human Rights Council resolution 51/8, paras. 6 and 9.