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.23-08064 (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. 15/2023 concerning Mohammad Dadashy (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 30 November 2022 the Working Group
transmitted to the Government of Australia a communication concerning Mohammad
Dadashy. The Government replied to the communication on 1 March 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/2023/15
General Assembly
Distr.: General
11 May 2023
Original: English
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Submissions
Communication from the source
4.
Mohammad Dadashy is a national of the Islamic Republic of Iran, born on 16 March
1990. His family is of Azeri ethnicity. Although Mr. Dadashy was raised as a conservative
Shia Muslim, he now identifies himself as a Christian.
5.
In 2009, Mr. Dadashy participated in protests prior to the presidential election. He met
university student activists and became engaged in their work. In particular, he collected the
names of individuals detained on political grounds and assisted their families.
6.
He also organized a workspace to hold meetings and prepare flyers alleging human
rights violations of political detainees.
7.
In 2011, the Iranian authorities interrogated him under torture and pressured him to
confess to working with activists. He denied all the accusations. Given the absence of
evidence, Mr. Dadashy was ultimately released.
8.
On 21 November 2012, intending to support a protest against the execution of Baha’is
and Christians, he planned to assist in printing pamphlets. On that day, however, Mr. Dadashy
had to work and arranged for the guard watching over the workshop to let his fellow activists
in during the evening. That same evening, the guard was arrested by the Iranian intelligence
service.
9.
Understanding that the arrest had occurred because of his activism, Mr. Dadashy was
compelled to leave the Islamic Republic of Iran immediately.
10.
On 27 November 2012, he fled to Australia. A summons dated the same day, ordering
him to appear in court on 5 December 2012, was sent to his home address. On 13 June 2013,
Branch 28 of the Islamic Revolutionary Court in Tehran found Mr. Dadashy guilty of
insulting the founder of the Islamic Republic of Iran; holding unlawful public assemblies for
the purpose of disturbing public peace and security; producing propaganda in favour of
groups against the Islamic Republic of Iran; and publishing and distributing proclamations
against the Islamic Republic of Iran. Mr. Dadashy was sentenced in absentia to 10 years of
imprisonment.
11.
Mr. Dadashy travelled on a genuine passport, which was taken by a smuggler in
Indonesia and not returned. On 10 December 2012, Mr. Dadashy arrived as an irregular
maritime arrival on Ashmore Reef, Australia, and was arrested immediately. It is unknown
whether a warrant was presented. It is understood that he was then taken by the Australian
authorities to Christmas Island, where he arrived on 20 December 2012 and was detained as
an offshore entry person under section 189 (3) of the Migration Act 1958.
12.
In November 2021, Mr. Dadashy submitted a freedom of information request
regarding the route his boat had taken from Ashmore Reef to Christmas Island. Despite
numerous requests for a response, none has been received. If Mr. Dadashy’s boat entered the
port area of Darwin, he would have access to a further merits review of his protection claim.2
It is also noted that the Department of Home Affairs itself has identified Mr. Dadashy’s boat
as potentially affected by the case of DBB16 v. Minister for Immigration and Border
Protection.
13.
On 21 January 2013, Mr. Dadashy was transferred to the Nauru Regional Processing
Centre for regional processing under section 198AD of the Migration Act. On 18 March
2013, following an attempt to self-harm, Mr. Dadashy was transferred to Australia for
medical treatment and was detained at the Brisbane Immigration Transit Accommodation
under section 189 (1) of the Act.
14.
On 19 March 2013, Mr. Dadashy was transferred to the Villawood Immigration
Detention Centre. On 2 July 2014, he applied for a bridging visa E, which was deemed to be
an invalid request. From 30 September 2013 to 9 July 2014, Mr. Dadashy was held at the
Melbourne Immigration Transit Accommodation.
2 Federal Court of Australia, DBB16 v. Minister for Immigration and Border Protection, FCAFC 178,
Judgment, 6 August 2018.
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15.
He stayed from 9 July 2014 to 27 January 2016 at the Maribyrnong Immigration
Detention Centre. During his stay there, on 4 February 2015, Mr. Dadashy was withdrawn
from the Nauru refugee status determination process.
16.
On 27 January 2016, Mr. Dadashy was transferred to the Christmas Island
Immigration Detention Centre, where he remained until 15 May 2018. On 18 April 2016,
during his stay there, the bar for Mr. Dadashy was lifted, as the Minister for Immigration and
Border Protection intervened under sections 46A and 46B of the Migration Act to allow
Mr. Dadashy to make an application for a temporary protection visa (subclass 785) or a safe
haven enterprise visa (subclass 790).
17.
On 23 June 2016, Mr. Dadashy lodged a valid application for a safe haven enterprise
visa (subclass 790), which was refused on 7 September 2016. The Department of Home
Affairs found that Mr. Dadashy did not engage the protection obligations of Australia. The
following day, the rejection was automatically referred to the Immigration Assessment
Authority.
18.
On 29 November 2016, the Immigration Assessment Authority affirmed the decision
of the Department of Home Affairs not to grant Mr. Dadashy a visa. The decision of the
Authority revealed that it had credibility concerns regarding Mr. Dadashy relating to a
translation error in Mr. Dadashy’s court ruling.
19.
On 31 December 2016, Mr. Dadashy lodged an application for judicial review with
the Federal Circuit Court of Australia. On 8 June 2017, the Federal Circuit Court ruled in
favour of the Minister. Mr. Dadashy appealed the decision with the Full Federal Court of
Australia on 27 June 2017. On 22 June 2018, the Full Federal Court dismissed the appeal. At
the time, Mr. Dadashy was being held at the Perth Immigration Detention Centre, to where
he had been transferred from the Christmas Island Immigration Detention Centre on 15 May
2018. He remained at the Perth Immigration Detention Centre until 2 July 2018.
20.
On 2 July 2018, Mr. Dadashy was transferred to the Yongah Hill Immigration
Detention Centre, where he stayed until 11 October 2018. Since 11 October 2018,
Mr. Dadashy has been held at the Villawood Immigration Detention Centre.
21.
On 2 April 2019, Mr. Dadashy was referred for involuntary removal. On 28 September
2021, he applied for a review by the Administrative Appeals Tribunal of the decision to refuse
his safe haven enterprise visa application on the basis of his having first landed at Ashmore
Reef. On 6 December 2021, the Tribunal determined that it did not have jurisdiction.
22.
Mr. Dadashy has spent nearly 10 years in detention, a situation that is still ongoing.
On 23 December 2014, he was charged with indecent assault and false imprisonment. On
5 May 2015, he received a three-month suspended sentence on each charge, to be served
concurrently. On 18 December 2015, he was found not guilty of false imprisonment but
convicted of indecent assault and ordered to pay a fine. On 9 July 2021, Mr. Dadashy’s
remaining conviction was overturned. Despite having no criminal record, Mr. Dadashy
remains in immigration detention.
23.
Relevant ministers with power under the Migration Act may exercise their non-
delegable powers to release Mr. Dadashy from detention at any time. On 28 April 2016,
Mr. Dadashy’s case was referred to the Minister for consideration under section 195A of the
Act. On 30 June 2016, the Minister indicated that he would consider the grant of a bridging
visa E (subclass 050) and a humanitarian stay visa (subclass 449) but, that same day, declined
to intervene.
24.
On 28 September 2016, Mr. Dadashy’s case was referred to the Minister for a second
time for consideration of a bridging visa E under section 195A. No response was received
from the Minister.
25.
On 2 February 2017, Mr. Dadashy’s case was referred to the Minister for a third time
for consideration under section 195A for the granting of a bridging visa. On 12 May 2017,
the submission was returned to the Department of Home Affairs, unactioned by the Minister,
without explanation, and the referral was finalized.
26.
On 31 October 2017, the Department of Home Affairs initiated an assessment of
Mr. Dadashy’s case for a fourth time against the section 195A guidelines, which he was
found to meet on 28 November 2017. On 15 January 2018, the Minister declined to intervene.
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27.
On 10 April 2018, the Commonwealth Ombudsman recommended that Mr. Dadashy
be considered under section 195A for the granting of a bridging visa. On 18 June 2018, the
Minister responded in Parliament that he had considered Mr. Dadashy’s case and declined to
intervene.
28.
On 28 June 2018, the Department of Home Affairs initiated a fifth request for
assessment against the section 195A guidelines and, on 3 August 2018, Mr. Dadashy was
once again found to meet the Minister’s guidelines for referral. On 17 October 2018, a
submission was sent to the Minister on behalf of Mr. Dadashy.
29.
On 14 February 2019, Mr. Dadashy was included in a group submission to the
Assistant Minister for Immigration and Border Protection under section 195A, requesting an
alternative management option for those who had been detained for more than five years. On
28 February 2019, the Assistant Minister indicated that Mr. Dadashy should be referred for
such an alternative management option. On 27 March 2019, the Minister again declined to
intervene.
30.
On 26 June 2019, the Department of Home Affairs initiated a seventh assessment of
Mr. Dadashy’s case against the section 195A guidelines. On 25 July 2019, the
Commonwealth Ombudsman recommended that the consideration of Mr. Dadashy’s case be
expedited under section 195A for the granting of a bridging visa and under section 46A to
lift the bar to allow him to lodge further bridging visa applications. On 8 November 2019,
the Complex Case Resolution Section advised that Mr. Dadashy’s case had not been
allocated.
31.
On 4 February 2020, Mr. Dadashy requested ministerial intervention under section
48B of the Migration Act. The ministerial intervention was finalized on 4 March 2020, with
no subsequent application allowed. On 11 March 2020, Mr. Dadashy was assessed as meeting
the section 195A guidelines and a submission requesting the Minister to consider alternative
management options under sections 195A and 197AB was prepared. On 8 September 2021,
however, the request was assessed as not meeting the Minister’s guidelines and was not
referred.
32.
On 13 January 2022, Mr. Dadashy’s legal representatives made a ministerial
intervention request under section 195A, followed on 8 February 2022 by a request under
section 197AB, both of which remain pending.
33.
On 16 February 2022, Mr. Dadashy’s legal representatives made a ministerial
intervention request under sections 46A and 48B of the Migration Act. On 23 February 2022,
the request was assessed as not meeting the Minister’s guidelines and was not referred. When
asked for the assessment against guidelines, the Department of Home Affairs responded, on
21 March 2022, that nothing had changed since the Immigration Assessment Authority
reviewed Mr. Dadashy’s case in 2016, specifically that there was no real chance that he would
practise Christianity and therefore did not face a serious risk of harm in the Islamic Republic
of Iran due to his religion. Moreover, Mr. Dadashy had not linked his mental health concerns
to a clear form of significant harm and would be able to receive adequate treatment in the
Islamic Republic of Iran, commensurate with that of any other Iranian citizen. Mr. Dadashy’s
legal representatives dispute this assessment.
34.
Mr. Dadashy was baptized on 19 May 2013 and remains an active Christian.
35.
Since being administratively detained, Mr. Dadashy has developed further severe
mental health issues. He has a documented diagnosis of post-traumatic stress disorder, has
been noted to have chronic stress and detention fatigue and has been formally diagnosed with
mixed anxiety and depression, for which he has been medicated intermittently.
36.
On 25 March 2013, following Mr. Dadashy’s transfer from offshore detention in
Nauru to onshore immigration detention in Australia for medical treatment, due to multiple
attempts to self-harm, the International Health and Medical Services advised the Department
of Home Affairs not to return Mr. Dadashy to Nauru as doing so would significantly increase
his risk of suicide.
37.
In 2014 and 2015, psychologists from Foundation House and the International Health
and Medical Services reported on separate occasions that Mr. Dadashy’s mental state was
compromised due to protracted detention.
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38.
On 14 May 2018, Mr. Dadashy was admitted to hospital suffering from moderate to
severe dehydration. He was discharged on 21 June 2018, still refusing to eat.
39.
On 26 June 2018, Mr. Dadashy recommenced full food and fluid refusal, with the
Health Service Manager of the International Health and Medical Services reporting that
Mr. Dadashy saw no point in living. On 28 June 2018, the Department of Home Affairs
advised Mr. Dadashy that he would not be considered for alternative placement while he
refused food and fluids. After indicating that he was ready to cease the practice, having been
told that he would be given a lawyer to appeal his criminal conviction, Mr. Dadashy was
transferred to Royal Perth Hospital for treatment. He was discharged on 2 July 2018.
40.
A special needs health assessment, received on 21 September 2018, diagnosed
Mr. Dadashy with acute stress disorder and recommended his relocation, as his health
conditions were likely to be aggravated by remaining in detention.
41.
In January 2019, Mr. Dadashy’s psychologist reported that the stressors associated
with detention would continue to have a negative impact on Mr. Dadashy’s psychological,
emotional and physical health. The recommendation was approved by the Medical Director
of the International Health and Medical Services on 20 February 2019 and noted in the reports
of the Department of Home Affairs on Mr. Dadashy provided to the Ombudsman.
42.
On 25 July 2019, the Ombudsman recommended that the Department of Home Affairs
consider Mr. Dadashy’s case for a specialized detention placement, given his significant
mental health issues.
43.
On 16 October 2019, the Minister responded to the Ombudsman in Parliament that,
on the basis of medical advice, the Department of Home Affairs had determined that such a
placement was currently not appropriate.
44.
On 26 December 2019, the International Health and Medical Services reported that
Mr. Dadashy had significant mental health issues likely to be adversely affected by the
current placement and that the risk of suicide was high, as Mr. Dadashy had expressed the
determination to end his life.
45.
In January 2022, another assessment established that Mr. Dadashy was considered to
be at risk of suicide and that his mental health would benefit greatly if he were released from
detention and had access to ongoing, specialized psychological assessment and treatment in
the community.
46.
The continued deprivation of liberty of Mr. Dadashy is arbitrary. He has been deprived
of liberty as a result of his exercise of the rights guaranteed under article 14 of the Universal
Declaration of Human Rights, as he came to Australia to seek asylum. He has also been
deprived of his rights, in contravention of article 26 of the Covenant, which notes that all
people are entitled to equal protection under the law. 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.
47.
Immigration detention is described by the Department of Home Affairs as a last resort
that is used for a very small proportion of people whose status requires resolution, sometimes
through protracted legal proceedings. This is not the case for Mr. Dadashy, who was
immediately detained upon his arrival in Australia, in December 2012, and who remains in
immigration detention to date.
48.
In its general comment No. 35 (2014), the Human Rights Committee stated that
detention had to be justified as reasonable, necessary and proportionate in the light of the
circumstances and reassessed as it extended in time. The fact that Mr. Dadashy has been held
in administrative detention since December 2012 illustrates that his detention is not
reasonable, necessary or proportionate and has not been properly or independently assessed
as it extends in time.
49.
The Australian Human Rights Commission and the Ombudsman have no power to
enforce the release of a person from immigration detention. As such, there is no independent
body to review the appropriateness of detention. Unless Mr. Dadashy is released from
administrative detention, he will be in detention indefinitely, given that he maintains his
protection claims and will not voluntarily return to his home country. The Islamic Republic
of Iran does not accept involuntary returnees.
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50.
Mr. Dadashy was not invited to apply for protection under section 46A of the
Migration Act until 18 April 2016, when he had been in closed detention for over three years.
He was not put forward for a bridging visa (under section 195A of the Migration Act) until
28 April 2016.
51.
In Al-Kateb v. Godwin,3 the High Court of Australia upheld that the mandatory
detention of non-citizens as a practice was not contrary to the Constitution, while the Human
Rights Committee, in Mr. C. v. Australia, held that there was no effective remedy for people
subject to mandatory detention in Australia.4
52.
The recent judgment in Commonwealth of Australia v. AJL205 further entrenches the
legality of indefinite immigration detention, even in circumstances in which the Government
is not taking active steps to remove an individual as soon as reasonably practicable.
53.
Australian citizens and non-citizens are not equal before the courts and tribunals. 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 Act does not contravene
the Constitution of Australia. The effective result is that, while Australian citizens can
challenge administrative detention, non-citizens cannot. The decision in Commonwealth of
Australia v. AJL20 confirms that the indefinite detention of an individual does not offend the
Constitution and is legal even in circumstances in which the Government has not taken any
active steps to remove them as soon as reasonably practicable.
54.
Mr. Dadashy has taken all necessary steps to seek protection in Australia and use the
appeal avenues available to him under the law.
Response from the Government
55.
On 30 November 2002, 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 30 January 2023, detailed information about
Mr. Dadashy and to clarify the legal provisions justifying his continued detention and its
compatibility with the obligations of Australia under international human rights law, in
particular with regard to the treaties ratified by the State.
56.
On 1 December 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 1 March 2023.
57.
In its reply, dated 1 March 2023, the Government stated that, on 10 December 2012,
Mr. Dadashy had entered Australia by sea, arriving on Ashmore Reef. He was taken to
Christmas Island on 20 December 2012, where he was detained as an offshore entry person
under section 189 (3) of the Migration Act. Mr. Dadashy was taken to Nauru, a regional
processing country, on 21 January 2013. On 18 March 2013, Mr. Dadashy was brought back
to Australia for medical treatment.
58.
As Mr. Dadashy is an unauthorized maritime arrival, he is prevented by a statutory
bar in section 46A of the Migration Act from making a valid visa application. As
Mr. Dadashy was taken to Nauru under section 198AD of the Act, he is also a transitory
person and thus is prevented by the statutory bar set out in section 46B of the Act from
making a valid visa application.
59.
Mr. Dadashy was found not to engage the protection obligations of Australia under
the Migration Act, as affirmed by the Immigration Assessment Authority on 29 November
2016. On 31 December 2016, Mr. Dadashy sought a review at the Federal Circuit Court and,
on 8 June 2017, the Court affirmed the decision of the Immigration Assessment Authority.
60.
On 27 June 2017, Mr. Dadashy brought an appeal to the Full Federal Court to contest
the decision of the Immigration Assessment Authority. On 22 June 2018, the Court dismissed
the appeal. Mr. Dadashy is prevented by the statutory bar set out in section 48A of the
Migration Act from making a further protection visa application. On 28 April 2016,
7 December 2017 and 17 October 2018, the Department of Home Affairs referred a
3 High Court of Australia, Case No. A253/2003, Order, 6 August 2004.
4 CCPR/C/76/D/900/1999.
5 High Court of Australia, Case No. C16/2020, Judgment, 23 June 2021.
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submission to the then Minister for Immigration for consideration under section 195A of the
Act. On each occasion, the Minister declined to consider intervening under section 195A of
the Act. In addition, on 2 February 2017, the Department referred a submission to the then
Minister for Immigration for consideration under section 195A of the Act, which was
returned to the Department unactioned on 19 April 2017.
61.
On 17 November 2022, the Department of Home Affairs referred a submission to the
Minister for consideration under sections 195A and 197AB of the Migration Act.
62.
On 19 December 2022, the Minister intervened under section 197AB of the Migration
Act to make a residence determination in respect of Mr. Dadashy.
63.
Mr. Dadashy is an unlawful non-citizen, meaning he is a non-citizen who does not
hold a visa that is in effect. He remains in immigration detention. He is prevented by sections
46A and 46B of the Migration Act from making a valid visa application. As an unauthorized
maritime arrival who does not engage the protection obligations of Australia, Mr. Dadashy
will not be settled in Australia.
64.
Mr. Dadashy has no outstanding visa applications and is refusing to cooperate with
the Department of Home Affairs and the authorities of the Islamic Republic of Iran for the
purpose of obtaining a travel document to facilitate his removal from Australia. It is possible
for Mr. Dadashy to end his ongoing detention by voluntarily departing Australia at any time
and, if he chooses this option, Australia will expedite his removal as soon as practicable.
65.
The Government further provides a detailed case history. In particular, it recalls that
Mr. Dadashy entered Australia by sea and became an offshore entry person (and later an
unauthorized maritime arrival, as defined in section 5AA of the Migration Act). Mr. Dadashy
left the Islamic Republic of Iran on a passport that was reportedly taken by a people smuggler
in Indonesia. He was taken to Christmas Island, where he arrived on 20 December 2012, and
was detained as an offshore entry person under section 189 (3) of the Act.
66.
Mr. Dadashy was taken to Nauru on 21 January 2013. On 19 March 2013, he was
transferred to Australia for medical treatment following an attempt to self-harm. On 25 March
2013, the International Health and Medical Services advised the Department of Home Affairs
not to return Mr. Dadashy to Nauru, as it would increase his risk of suicide. On 30 September
2013, Mr. Dadashy was transferred to the Melbourne Immigration Transit Accommodation.
On 9 July 2014, Mr. Dadashy was involved in an alleged sexual assault and, as a result, was
transferred to the Maribyrnong Immigration Detention Centre.
67.
On 27 January 2016, Mr. Dadashy was transferred to the Christmas Island
Immigration Detention Centre. Since being placed in immigration detention, Mr. Dadashy
has been involved in 154 recorded incidents, including for aggressive behaviour, minor
assault, serious assault, sexual assault, possession of contraband, minor damage, minor
disturbance, food and fluid refusal, self-harm and possession of a weapon.
68.
On 5 May 2015, he was convicted of false imprisonment (common law) and indecent
assault and was sentenced to three months imprisonment on each charge, to be served
concurrently. Mr. Dadashy appealed the sentence and was found not guilty of false
imprisonment (common law). However, he was convicted of indecent assault and was
ordered to pay a fine.
69.
Mr. Dadashy was not taken to a regional processing country as he was subject to fast-
track processing in Australia.
70.
On 15 April 2016, the Department of Home Affairs referred a submission to the then
Minister asking him to consider lifting the statutory bars of sections 46A and 46B of the
Migration Act to allow Mr. Dadashy to lodge a safe haven enterprise visa (subclass 790) or
a temporary protection visa (subclass 785) application.
71.
On 18 April 2016, the Minister lifted the statutory bars of sections 46A and 46B. On
20 April 2016, the Department of Home Affairs notified Mr. Dadashy that he was eligible to
access the Primary Application and Information Service to assist in lodging an application
for a temporary protection or safe haven visa.
72.
On 28 April 2016, the Department of Home Affairs referred a submission to the
Minister under section 195A of the Migration Act to consider granting Mr. Dadashy a
bridging visa E (subclass 050). On 4 May 2016, Mr. Dadashy accepted the Primary
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Application and Information Service offer. On 23 June 2016, Mr. Dadashy lodged a valid
safe haven visa application. On 24 June 2016, Mr. Dadashy attended an interview in
connection with the visa application.
73.
On 30 June 2016, the Minister declined to consider intervening under section 195A
of the Migration Act. On 7 September 2016, the safe haven visa application was refused as
Mr. Dadashy was found to not engage the protection obligations of Australia.
74.
On 29 November 2016, the Immigration Assessment Authority affirmed the refusal
decision. On 31 December 2016, Mr. Dadashy sought review of the refusal decision by the
Federal Circuit Court and, on 8 June 2017, the Court affirmed the Authority’s decision.
75.
On 2 February 2017, the Department of Home Affairs referred a submission to the
Minister for consideration under section 195A of the Migration Act. On 19 April 2017, the
Minister declined to consider intervening under section 195A of the Act.
76.
On 27 June 2017, Mr. Dadashy appealed the Federal Circuit Court decision to the Full
Federal Court. On 22 June 2018, the Full Federal Court dismissed the appeal.
77.
On 7 December 2017, the Department of Home Affairs referred a submission to the
Minister for consideration under section 195A of the Migration Act. On 15 January 2018, the
Minister declined to consider intervening under section 195A in Mr. Dadashy’s case.
78.
On 15 May 2018, Mr. Dadashy was transferred from the Christmas Island
Immigration Detention Centre to the Perth Immigration Detention Centre.
79.
On 2 July 2018, Mr. Dadashy was transferred to the Yongah Hill Immigration
Detention Centre. On 10 October 2018, Mr. Dadashy was transferred to the Villawood
Immigration Detention Centre after the International Health and Medical Services identified
mental health risks relating to his placement at the Yongah Hill Centre.
80.
On 17 October 2018, the Department of Home Affairs referred a submission to the
Minister for consideration under sections 195A and 46A of the Migration Act. On 27 March
2019, the Minister declined to consider the case under section 195A of the Act to grant
Mr. Dadashy a bridging visa E and lift the section 46A bar to allow bridging visa E
applications. On 26 June 2019, the case was referred for assessment under the section 195A
guidelines.
81.
On 4 March 2020, Mr. Dadashy was found not to meet the guidelines under section
48B for referral to the Minister to consider lifting the bar in section 48A. In August 2021,
Mr. Dadashy was involved in two incidents of serious damage to Commonwealth property.
The police investigation into these incidents is ongoing.
82.
On 1 November 2021, Mr. Dadashy’s case was assessed as not meeting sections 195A
and 197AB guidelines. On 16 February 2022, Mr. Dadashy’s representative made a request
for ministerial intervention under sections 46A and 48B of the Migration Act. On 22 February
2022, the request was found to not meet the guidelines for referral to the Minister under
section 48B of the Act.
83.
On 24 May 2022, Mr. Dadashy’s representative made a further request for ministerial
intervention under sections 46A and 48B of the Migration Act. On 29 June 2022, the request
was finalized as not meeting the guidelines for referral to the Minister under section 48B of
the Act.
84.
On 23 June 2022, Mr. Dadashy was reportedly assaulted by another detainee and
requested that the matter be referred to the Australian Federal Police. On 29 June 2022, the
police advised they had determined not to investigate further, noting minor injuries and the
management of the issue by the detention centre. However, on 1 August 2022, the police
advised that the matter had been reopened for investigation. On 20 December 2022, the police
advised the Australian Border Force that the matter was ongoing and was before the courts.
85.
On 17 November 2022, the Department of Home Affairs referred a submission to the
Minister for consideration under sections 195A and 197AB of the Migration Act. On
19 December 2022, the Minister intervened under section 197AB of the Act to make a
residence determination. Once Mr. Dadashy has been residing at the place that is the subject
of the residence determination for six months, his case can be referred for consideration under
section 195A of the Act for the granting of a visa.
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86.
The Government further provides detailed information about Mr. Dadashy’s health,
and emphasizes that the Department of Home Affairs prioritizes the health and safety of all
persons in immigration detention. Health examinations are routinely conducted by the
Department’s contracted health services provider. Psychological consultations are also
undertaken, as necessary, to establish and monitor the mental health of detainees. Detainees
have access to external scrutiny bodies with a mandate to oversee the operations of
immigration detention facilities.
87.
The Department of Home Affairs is aware of Mr. Dadashy’s mental health issues,
including post-traumatic stress disorder, his history of self-harm and voluntary food and fluid
refusal, the most recent information covering the period 24–28 September 2021. He was
monitored and managed with daily health and welfare reviews by members of both the
primary care and mental health teams.
88.
On 16 May 2018, Mr. Dadashy was admitted to hospital, where he remained until
21 June 2018. He was treated for acute starvation with malnutrition, deranged liver function,
renal failure and hypoglycaemia.
89.
During his time in immigration detention, Mr. Dadashy has been prescribed
psychotropic medications. Furthermore, he has received counselling services and has
engaged with an external psychologist.
90.
Regarding all threatened or actual self-harm incidents, Mr. Dadashy was offered
medical intervention and was managed with supportive monitoring and engagement by the
mental health team.
91.
Mr. Dadashy was also placed on constant Keep S.A.F.E. status (accessible or visible
for visual monitoring at all times).
92.
There have been no episodes of self-harm since September 2021, including since his
placement into community detention on 20 December 2022. Mr. Dadashy has been
encouraged to engage with a community-based general practitioner to be referred for ongoing
mental health support.
93.
The Government also provides legal and policy frameworks. The universal visa
system of Australia requires all non-citizens to hold a valid visa to enter and remain in the
country. Under section 189 of the Migration Act, an individual must be detained where an
officer knows or reasonably suspects that the individual is an unlawful non-citizen. Under
section 196 of the Act, unlawful non-citizens must be kept in immigration detention until
they are removed or granted a visa.
94.
Section 195A of the Migration Act provides the Minister with the power to grant a
visa to a person in immigration detention. Section 197AB of the Act provides the Minister
with the power to make a residence determination in respect of a person in immigration
detention. Ministerial intervention is not an extension of the visa process. The Minister’s
powers under sections 195A and 197AB of the Act are non-delegable and non-compellable.
The Minister is under no obligation to exercise these powers in a case.
95.
Persons who make a valid application for a protection visa will have their claims
assessed. The domestic legislation and policies and practices of Australia implement its non-
refoulement obligations under the Convention relating to the Status of Refugees and the
Protocol relating to the Status of Refugees, the Covenant and the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.
96.
If a person makes a valid application for a visa and a visa is refused, the person can
seek to have the lawfulness of that decision reviewed through judicial processes. Merits
reviews and judicial reviews of administrative decisions are available to both Australian
citizens and non-citizens. Mr. Dadashy has exercised these rights on multiple occasions,
including on 31 December 2016 and 27 June 2017.
97.
The Government’s model litigant obligation requires the Commonwealth to act
honestly and fairly in handling claims and litigation brought by or against it.
98.
The immigration detention of an unlawful non-citizen is not arbitrary under
international law if it is reasonable, necessary and proportionate in the particular
circumstances. Continuing detention may become arbitrary if it is no longer reasonable,
necessary and proportionate in the circumstances. In instances of continuing detention, the
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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 dependent upon an
individual’s circumstances, including identity determination, developments in country
information, health and character or security matters. Detention is a last resort for the
management of unlawful non-citizens.
99.
Mr. Dadashy remains in immigration detention because he is an unlawful non-citizen.
In addition, on the basis of his individual circumstances, including the fact that he entered
Australia with no valid passport, immigration detention is considered to be the most
appropriate form of detention. While Mr. Dadashy was held in immigration detention, from
20 December 2012 to 19 December 2022, the Department of Home Affairs reviewed his case
119 times. These reviews did not identify any circumstances that warranted a change of
placement for Mr. Dadashy. However, between December 2012 and December 2022,
Mr. Dadashy’s case was referred for ministerial consideration under section 195A of the Act
on five occasions and was found to not meet the section 195A guidelines on one occasion.
On the fifth occasion, the Minister intervened under section 197AB of the Migration Act on
19 December 2022 to make a residence determination.
100.
As Mr. Dadashy is an unauthorized maritime arrival, he is prevented by section 46A
of the Migration Act from making a valid visa application. He will therefore not be settled
permanently in Australia.
101.
Immigration detention is administrative in nature and not punitive. 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. Dadashy is
justifiable and not arbitrary and is consistent with the Covenant.
102.
The Department of Home Affairs is required under section 486N of the Migration Act
to provide the 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 Department’s section 486N report, the Ombudsman
prepares independent assessments of the individual’s circumstances and provides the
Minister with a report under section 4860 of the Act. The Ombudsman may make
recommendations to the Department. The Department has reported on Mr. Dadashy on 16
occasions, with the most recent report having been sent to the Ombudsman on 5 September
2022.
103.
Persons in immigration detention can seek judicial review of the lawfulness of their
detention before the Federal Court or the High Court. Section 75 (v) of the 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.
Subsection 39B (1) of the Judiciary Act grants the Federal Court the same jurisdiction as the
High Court under section 75 (v) of the Constitution. It is these provisions that constitute the
legal mechanism through which non-citizens may challenge the lawfulness of their detention.
104.
Mr. Dadashy was identified for assessment under section 195A of the Migration Act
for possible referral to the Minister for consideration to grant a bridging visa E (subclass 050).
On 30 June 2016, the Minister declined to consider intervening in Mr. Dadashy’s case. A
person can write to the Minister to request ministerial intervention. Mr. Dadashy and his
representative did not make any ministerial intervention requests until February 2020. Two
additional requests were made, in May 2021 and in February 2022. The Minister’s public
interest powers under the Act are non-compellable. Only cases that meet the ministerial
guidelines are referred to the Minister for consideration.
105.
The Government disagrees with the statement that Australian citizens and non-
citizens are not equal before the courts, stating that the effect of the decision in Al-Kateb v.
Godwin was that non-citizens could not challenge administrative detention decisions. In Al-
Kateb v. Godwin, the High Court held that the provisions of the Migration Act requiring the
detention of non-citizens until they were removed or granted a visa, even if removal was not
reasonably practicable in the foreseeable future, were lawful. The decision in Al-Kateb v.
Godwin does not alter non-citizens’ ability to challenge the lawfulness of their detention
under Australian law. Further, non-citizens are also able to challenge the lawfulness of their
detention through an application for a writ of habeas corpus.
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106.
The Universal Declaration of Human Rights is not legally binding. However, the
Government recognizes that it reflects international law, to the extent that it has been codified
in other legally binding instruments. Mr. Dadashy is detained, as required by section 189 of
the Migration Act, because he is an unlawful non-citizen, not because he is seeking protection.
107.
Article 26 of the Covenant provides that all people are entitled to equal protection
under the law without any discrimination. The object of the Migration Act is to regulate, in
the national interest, the coming into and presence in Australia of non-citizens. The Act is
thus aimed at differentiating, on the basis of nationality, between citizens and non-citizens.
The Human Rights Committee has recognized in its general comment No. 15 (1986) that the
Covenant does not recognize the right of aliens to enter or reside in the territory of a State
party and that it is in principle a matter for the State to decide whom it will admit to its
territory. The Government can thus determine, consistent with its obligations under
international law, who may enter its territory and under what conditions, including by
requiring that a non-citizen hold a visa in order to lawfully enter and remain in Australia and
that, in circumstances where a visa is not held, a non-citizen is subject to immigration
detention.
108.
The differential treatment of citizens and non-citizens is not discriminatory and does
not breach article 26 of the Covenant because it is aimed at achieving a purpose which is
legitimate, based on reasonable and objective criteria and proportionate to the aim to be
achieved. The treatment is consistent with articles 12 and 13 of the Covenant.
109.
Equality and non-discrimination should not be understood simplistically as requiring
identical treatment of all persons in all circumstances. Further, under international human
rights law, not all differences in treatment will constitute discrimination. The treatment of
Mr. Dadashy amounts to permissible, legitimate, differential treatment, consistent with the
obligations of Australia under the Covenant.
Discussion
110.
The Working Group thanks the source and the Government for their submissions.
111.
In determining whether the deprivation of liberty of Mr. Dadashy is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has established a prima facie case for breach of the
international law constituting arbitrary detention, the burden of proof should be understood
to rest upon the Government if it wishes to refute the allegations. Mere assertions by the
Government that lawful procedures have been followed are not sufficient to rebut the
source’s allegations.6
Category I
112.
It is submitted by the parties that Mr. Dadashy arrived in Australia in December 2012
by boat. The Government submits that he was detained and, on 20 December 2012,
transferred to the detention centre on Christmas Island. The Department of Home Affairs was
the detaining authority and the reason for the arrest was unauthorized entry to Australia by
boat. Since then, he has remained in immigration detention as an unlawful non-citizen and,
for the past 10 years, he had been transferred between several immigration detention centres.
The Government contends that the Universal Declaration of Human Rights, while proclaimed
by the General Assembly, does not create binding legal obligations on signatories.
Notwithstanding this, the Government submits that Mr. Dadashy is lawfully detained under
the national legislation as an unlawful non-citizen.
113.
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
1958.7 The Working Group reiterates its views on the Migration Act.8
6 A/HRC/19/57, para. 68.
7 See opinions No. 28/2017, No. 42/2017, No. 71/2017, No. 20/2018, No. 21/2018, No. 50/2018,
No. 74/2018, No. 1/2019, No. 2/2019, No. 74/2019, No. 35/2020, No. 70/2020, No. 71/2020,
No. 72/2020, No. 17/2021, No. 68/2021, No. 69/2021, No. 28/2022, No. 32/2022 and No. 42/2022.
8 Opinion No. 35/2020, paras. 98–103.
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114.
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.
115.
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,9 the Committee on Economic, Social and Cultural
Rights, 10 the Committee on the Elimination of Discrimination against Women, 11 the
Committee on the Elimination of Racial Discrimination,12 the Special Rapporteur on the
human rights of migrants13 and the Working Group.14 The Working Group calls upon the
Government to urgently review the Migration Act in the light of its obligations under
international human rights law.
116.
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 1958, and noting the failure of the Government to take any action, the Working
Group concludes that the detention of Mr. Dadashy under the said legislation was arbitrary
under category I as it violated 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
117.
The Working Group observes that Mr. Dadashy arrived in Australia on 10 December
2012, having escaped the Islamic Republic of Iran, where he was sentenced in absentia to
10 years’ imprisonment for his human rights activities. Thus, the present case involves an
individual who has spent some 10 years in various detention centres so far and, given the
Government’s submissions, his detention appears to be indefinite. The Working Group is
disturbed that the Government reproached him for a failure to cooperate with the Iranian
authorities for the purpose of obtaining a travel document to facilitate his removal to the
Islamic Republic of Iran, where he faces very serious risks of torture. It recalls that article 3
of the Convention against Torture sets out the obligation not to return anyone to a State where
they might face torture.
118.
Notwithstanding the views and findings of the Working Group about 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. Dadashy remains
detained today on the basis of that same Act. The source argues that Mr. Dadashy is detained
in violation of article 26 of the Covenant.
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.15 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
9 CCPR/C/AUS/CO/6, paras. 33–38.
10 E/C.12/AUS/CO/5, paras. 17 and 18.
11 CEDAW/C/AUS/CO/8, paras. 53 and 54.
12 CERD/C/AUS/CO/18-20, paras. 29–33.
13 See A/HRC/35/25/Add.3.
14 Opinions No. 50/2018, paras. 86–89; No. 74/2018, paras. 99–103; No. 1/2019, paras. 92–97; 2/2019,
paras. 115–117; No. 35/2020, paras. 98–103; and No. 17/2021, paras. 125–128.
15 A/HRC/39/45, annex, para. 12.
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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.
120.
Furthermore, the Government has not presented any particular reason, under the
national legislation, specific to Mr. Dadashy, 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. This is not altered by the fact that Mr. Dadashy has been
involved in a number of incidents, including for aggressive behaviour, as it does not appear
that these facts were assessed by the relevant authorities when deciding on his detention. The
only reference to the fact that Mr. Dadashy was qualified as an “unauthorized maritime
arrival” does not per se amount to any individual assessment.
121.
The Working Group notes Mr. Dadashy’s health problems as a weighty factor for his
release. It concludes that there was no reason for detaining Mr. Dadashy other than his
migration status and that he was detained due to the exercise of his legitimate rights under
article 14 of the Universal Declaration of Human Rights.
122.
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,
in its general comment No. 15 (1986), the Human Rights Committee, quoted by the
Government, also makes 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”.16
123.
This means that Mr. Dadashy is entitled to the right to liberty and security of person
as guaranteed in article 9 of the Covenant and that, 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. Dadashy is subjected to de facto indefinite detention due to his
immigration status, in clear breach of articles 2 and 9 of the Covenant.
124.
Noting that Mr. Dadashy 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. Dadashy has always been treated in accordance with the stipulations of the Migration
Act 1958. 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.
Category IV
125.
The source has argued that Mr. Dadashy has been subjected to prolonged
administrative custody without remedy. The Government denies these allegations, arguing
that persons in immigration detention can seek review of the lawfulness of their detention,
and that, between 2012 and 2022, the Department of Home Affairs reviewed the case of
Mr. Dadashy 119 times. On five occasions his case was referred for ministerial consideration
under section 195A of the Act.
126.
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.17 This right, which is a peremptory norm of international law, applies to all forms of
deprivation of liberty18 and to all situations of deprivation of liberty, including not only
detention for purposes of criminal proceedings, but also migration detention.19
16 Paras. 2 and 7.
17 A/HRC/30/37, paras. 2 and 3.
18 Ibid., para. 11.
19 Ibid., para. 47 (a).
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127.
In respect of the Government’s arguments, the Working Group recalls that none of
the reviews were judicial – as required by article 9 (4) of the Covenant – and, moreover, did
not concern the necessity to detain Mr. Dadashy or indeed the proportionality of such
detention to his individual circumstances. Rather, these actions assessed the claims of Mr.
Dadashy against the legal framework set out by the Migration Act 1958. As is evident from
the Working Group’s examination, as set out above, the Act is incompatible with the
obligations of Australia under international law, and the assessments carried out in
accordance with the Act are therefore equally incompatible with the requirements of
international human rights law.
128.
Furthermore, and in view of the Government’s argument that the case of Mr. Dadashy
was reviewed by the Ombudsman 16 times, the Working Group notes that 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. 20 The Working Group is
particularly mindful that the 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 has reviewed the detention of
Mr. Dadashy. Once again, noting that this is a review by an executive body, the Working
Group observes, as it has on previous occasions,21 that it does not satisfy the criteria of article
9 (4) of the Covenant.
130.
The Working Group therefore concludes that, during his over 10 years of detention,
no judicial body has ever been involved in the assessment of the legality of Mr. Dadashy’s
detention and notes that international human rights law requires that such consideration by a
judicial body necessarily involve an assessment of the legitimacy, necessity and
proportionality of detention.22
131.
The Working Group must therefore reiterate that the indefinite detention of
individuals in the course of migration proceedings cannot be justified and is arbitrary,23 which
is why the Working Group has required that a maximum period for 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.24 There cannot be
a situation whereby individuals are caught up in an endless cycle of periodic reviews of their
detention without any prospect of actual release. This is a situation akin to indefinite
detention, which cannot be remedied even by the most meaningful review of detention on an
ongoing basis.25 As the Working Group 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.
132.
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.26 Moreover, as the
20 Opinion No. 69/2021, para. 126.
21 Opinion No. 32/2022.
22 A/HRC/39/45, annex, paras. 12 and 13.
23 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.
24 A/HRC/39/45, annex, para. 25; A/HRC/13/30, para. 61; and opinion No. 7/2019.
25 See opinions No. 1/2019 and No. 7/2019.
26 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).
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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.27 In the
case of Mr. Dadashy, the Working Group has already established that no alternatives to
detention have been considered.
133.
Moreover, despite the claims of the Government to the contrary, the Working Group
considers that the detention of Mr. Dadashy is, in fact, punitive in nature which, as it
highlighted in its revised deliberation No. 5, should never be the case28 and is in breach of
article 9 of the Covenant. Mr. Dadashy has currently been detained for over 10 years and, as
the Government has not been able to identify how long his detention will last, it is de facto
indefinite.
134.
Consequently, the Working Group finds that Mr. Dadashy is 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 has been found to be in breach of article 9 of the
Covenant.29
Category V
135.
The Working Group notes the source’s argument that Mr. Dadashy, 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
this case, the High Court held that provisions of the Migration Act 1958 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 non-citizens’ ability to challenge the lawfulness of their
detention under Australian law.
136.
The Working Group remains perplexed by the repeated explanation submitted by the
Government,30 since this confirms only that the High Court affirmed the legality of the
detention of non-citizens until they were removed, deported or granted a visa, even if removal
were not reasonably practicable in the foreseeable future.
137.
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 this
decision of the High Court, which is what the Government must show in order to comply
with articles 9 and 26 of the Covenant. To this end, the Working Group once again
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.31
27 A/HRC/39/45, annex. See also 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.
28 See also Human Rights Committee, 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.
29 Ibid.
30 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.
31 See 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.
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138.
As in the past, the Working Group cannot but again concur with the views of the
Human Rights Committee in this matter,32 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. Dadashy is arbitrary, falling under category V.
Concluding remarks
139.
The Working Group wishes to place on record its very serious concern over the state
of Mr. Dadashy’s mental and physical health. Although the Working Group acknowledges
submissions by the Government concerning the health-care provision for Mr. Dadashy, 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
applies also to those held in the context of migration.33 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 detention in the course of
migration proceedings.34 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.
140.
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
141.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mohammad Dadashy, 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.
142.
The Working Group requests the Government of Australia to take the steps necessary
to remedy the situation of Mr. Dadashy 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.
143.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Dadashy immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law.
144.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Dadashy and to take appropriate measures against those responsible for the violation of
his rights.
145.
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.
146.
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
32 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.
33 See also deliberation No. 12 (A/HRC/48/55, annex).
34 A/HRC/39/45, annex, para. 38.
A/HRC/WGAD/2023/15
GE.23-08064
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Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health, for appropriate action.
147.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
148.
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. Dadashy has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Dadashy;
(c)
Whether an investigation has been conducted into the violation of
Mr. Dadashy’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.
149.
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.
150.
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.
151.
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.35
[Adopted on 29 March 2023]
35 Human Rights Council resolution 51/8, paras. 6 and 9.