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.23-17611 (E) 200923 210923
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on
Arbitrary Detention at its ninety-seventh session,
28 August–1 September 2023
Opinion No. 44/2023 concerning Mr. Khaled el-Ali (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 2 May 2023 the Working Group
transmitted to the Government of Australia a communication concerning Khaled el-Ali. The
Government replied to the communication on 31 July 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/2023/44
General Assembly
Distr.: General
21 September 2023
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Khaled el-Ali is a stateless person, born in 1986. He was born in Lebanon to parents
of Palestinian descent. Raised as a Sunni Muslim, he attended the United Nations school for
Palestinian refugees until the age of 13.
5.
Mr. El-Ali’s father was an officer in the Palestinian army. After retiring from the army
for the safety of his family, he became a teacher at a Lebanese school but disappeared one
day – most likely kidnapped – never to return.
6.
Mr. El-Ali’s mother has remarried. On 10 October 2001, she lodged an application
offshore for an Australian Partner visa, which included Mr. El-Ali as a dependent applicant.
On 22 April 2005, Mr. El-Ali was granted a dependent Partner (Provisional) visa
(subclass 309), initially valid until 28 January 2009.
7.
On 18 May 2005, Mr. El-Ali arrived in Australia on a Lebanese Palestinian Refugee
passport as the holder of a Partner (Provisional) visa (subclass 309). The family settled in
South Australia. However, Mr. El-Ali’s stepfather subsequently expelled him from home
without any identification documents. After living on the streets, Mr. El-Ali was offered
accommodation by a group of Arab men he met, in exchange for looking after cannabis
plants. He was arrested during a police raid and charged with the cultivation of cannabis.
8.
On 26 February 2006, the Department of Immigration and Border Protection
(renamed the Department of Home Affairs in December 2017) began processing the
permanent Partner visa (subclass 100) of Mr. El-Ali’s mother, which included Mr. El-Ali as
a dependant. During the processing of the visa application, the Department was informed that
Mr. El-Ali had a criminal record. On 16 June 2008, a delegate of the Minister of Home Affairs
decided not to refuse Mr. El-Ali a dependent Partner visa under section 501 (1) of the
Migration Act 1958 and issued him a warning.
9.
On 22 October 2008, following the information that Mr. El-Ali had reoffended, the
Department of Immigration and Border Protection requested his updated penal certificate.
Between 2007 and 2010, Mr. El-Ali was arrested and charged in relation to theft, assault,
affray, deceiving the police, resisting the police, failing to leave premises, motor vehicle
offences, traffic offences, damaging property, taking part in the production of a controlled
substance, failing to comply with bail conditions, failing to comply with domestic violence
orders and weapon offences.
10.
On 15 December 2008, Mr. El-Ali requested to be removed as a dependant from his
mother’s permanent Partner visa (subclass 100) application, his request only being received
on 28 January 2009.
11.
On 22 June 2009, Mr. El-Ali received a 28-month suspended sentence for failing to
comply with the domestic violence restraining order and with the bail agreement.
12.
On 31 October 2009, Mr. El-Ali was arrested by the police for threatening aggravated
harm against his former partner and was remanded in custody. On 15 November 2010, he
was sentenced to 28 months’ jail for breach of his bail agreement and 20 months’ jail for
damaging property, dishonestly taking property without consent, committing an assault
(aggravated offence), hindering police and threatening to harm a person (aggravated offence).
His sentence was backdated to 31 October 2009, and he was given a non-parole period of
24 months. On 3 January 2013, Mr. El-Ali withdrew his request for parole.
13.
Mr. El-Ali became an unlawful non-citizen on 29 October 2013, when his Bridging
visa E (subclass 050) expired. The following day, on 30 October 2013, Mr. El-Ali was
released from criminal custody and was immediately detained under section 189 (1) of the
Migration Act. He was transferred to Melbourne Immigration Detention Centre. The
Department of Immigration and Border Protection issued the decision to detain Mr. El-Ali.
However, it is unknown if it was shown to Mr. El-Ali at that time.
14.
The Migration Act specifically provides, in sections 189 (1) and 196 (1) and (3), that
unlawful non-citizens must be detained and kept in detention until they are: (a) removed or
deported from Australia; or (b) granted a visa. Section 196 (3) of the Migration Act
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specifically provides that even a court cannot release an unlawful non-citizen from detention
(unless the person has been granted a visa).
15.
On 10 September 2014, Mr. El-Ali was transferred to the Christmas Island
Immigration Detention Centre under section 189 (3) of the Migration Act. On 25 November
2014, Mr. El-Ali was arrested by the police and charged with assaulting a Serco officer,
occasioning bodily harm, common assault (three charges), being armed in a way that may
cause fear and making threats to harm. Mr. El-Ali was subsequently granted bail and
transferred back to Christmas Island Immigration Detention Centre where he remained until
8 January 2015.
16.
On approximately 3 December 2014, Mr. El-Ali was also charged with criminal
offences related to possession of methylamphetamine and possession of a prohibited weapon
without exemption in Victoria, Australia.
17.
On 8 January 2015, Mr. El-Ali was arrested on additional assault charges and breach
of his bail conditions by the police. He was transferred into criminal custody at the Perth
Remand Centre. On 27 August 2015, Mr. El-Ali was convicted for the criminal charges of
25 November 2014 and 8 January 2015. He was sentenced to 12 months’ jail, with a
non-parole period of 6 months, for occasioning bodily harm, common assault (five charges),
aggravated assault (five charges) and threatening behaviour (six charges). The court ruled
that Mr. El-Ali’s jail term would be backdated to 3 January 2015.
18.
On 2 January 2016, Mr. El-Ali was released from criminal custody and then
immediately detained under section 189 (1) of the Migration Act, but remained in prison
under alternative place of detention arrangements due to the risk that he was considered to
pose to the safety and order of an immigration detention centre environment. On 1 December
2016, he was transferred to an immigration detention facility.
19.
On 26 April 2017, Mr. El-Ali absconded from immigration detention. On 29 April
2017, Mr. El-Ali was located by the police and charged with escaping from immigration
detention. He was remanded in criminal custody. On 2 November 2017, Mr. El-Ali was
sentenced to 10 months’ jail (time served backdated to 29 April 2017) for absconding from
immigration detention.
20.
On 13 August 2018, Mr. El-Ali was released from criminal custody on bail and
detained under section 189 (1) of the Migration Act. He was subsequently transferred to
Yongah Hill Immigration Detention Centre. Mr. El-Ali remains in immigration detention
under section 189 (1) of the Migration Act. He is currently in Villawood Immigration
Detention Centre, where he has been since 16 June 2019.
21.
Mr. El-Ali suffers from acute mental health conditions that have developed, and are
worsening, due to his prolonged detention and uncertainty about his future.
22.
On 13 December 2019, Mr. El-Ali was reviewed by a mental health nurse from
International Health and Medical Services after Serco commenced enhanced monitoring
because he was reported to be agitated and after he advised his status resolution officer that
he could no longer endure his situation. He also stated that he was giving the Department of
Home Affairs until 5 February 2020 to progress his immigration pathway.
23.
During the mental health review conducted by International Health and Medical
Services, Mr. El-Ali denied having any mental health issues and was noted to be distressed
by the environment. He voiced his unhappiness with his prolonged detention and denied
suicidal or homicidal thoughts. Mr. El-Ali was reported to be experiencing symptoms of
detention fatigue; it was recommended that he continue to follow up with the Mental Health
Team as clinically indicated.
24.
On 22 January 2020, Mr. El-Ali was seen by a psychologist from International Health
and Medical Services. He expressed his frustration at his continued detention and the delay
in his being returned to Lebanon.
25.
The status resolution officer met with Mr. El-Ali a week before 5 February 2020.
Mr. El-Ali stated that he stood by the deadline but did not place so much stress on it as he
had in previous interactions. During the meeting, Mr. El-Ali was reported to be more
cooperative than previously. He stated that he had been drug free for two months and implied
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that his previous behaviour had been due to his drug use at the time. On 4 February 2020, the
status resolution officer had a phone conversation with Mr. El-Ali, and he was reported to be
cooperative and polite; he did not mention the impending deadline.
26.
On 24 January 2012, while Mr. El-Ali was still in criminal detention, officials of the
Department of Immigration and Border Protection visited the Embassy of Lebanon in
Canberra and obtained a summary of the process involved in getting a travel document. On
5 August 2013, the Department emailed the Australian Department of Foreign Affairs in
Beirut, receiving a response that the process would likely take a couple of months. On
21 November 2013, Lebanese authorities advised that they had approved the issue of a
three-month laissez-passer (return pass) by the Embassy of Lebanon in Australia, which was
issued on 26 November 2013. Mr. El-Ali’s planned removal was scheduled for 23 January
2014, but did not take place as he was still being considered for a Bridging visa at that time.
27.
In 2014, Mr. El-Ali requested to be removed to Denmark, Kuwait, Jordan, the
United States of America or the United Kingdom of Great Britain and Northern Ireland where
he had extended family members. On 5 December 2014, Mr. El-Ali signed an application for
a Lebanese travel document for Palestinian refugees. The application was signed by an
immigration officer on 11 December 2014, with Mr. El-Ali signing the request for removal
form the following day. On 16 December 2014, the Department of Immigration and Border
Protection sent the Embassy of Lebanon an application for a Lebanese travel document,
noting Mr. El-Ali was cooperating voluntarily with his removal.
28.
On 21 December 2014, the Department of Immigration and Border Protection noted
that it had commenced organizing Mr. El-Ali’s travel document, which would take
approximately two to three months. The following day, Mr. El-Ali reiterated, during an
interview held at Christmas Island Immigration Detention Centre to plan his removal, that he
would return to Lebanon if his demands were met, namely, to see his family before he left,
to receive sufficient funds and to have his property returned. On 23 December 2014, the cost
of Mr. El-Ali’s flight was approved for 5 March 2015, but on 7 January 2015, his removal
was put on hold as the Department was waiting for information from the Embassy of Lebanon
regarding the validity of Mr. El-Ali’s travel document.
29.
On 13 January 2015, Mr. El-Ali’s removal was cancelled until further notice.
Although it was subsequently scheduled for 23 January 2015, it did not occur. On 4 February
2015, the Department of Immigration and Border Protection noted that the Embassy of
Lebanon was checking whether it required a new approval for the three-month return pass
from 2013. While various tentative dates for Mr. El-Ali’s removal were proposed during
March and April 2015, nothing eventuated.
30.
On 7 January 2016, Mr. El-Ali was interviewed and agreed to voluntary removal if he
was able to see his family beforehand. On 8 March 2016, the Department of Immigration and
Border Protection noted that Mr. El-Ali could be considered for removal and, during an
interview two days later to plan his removal, he asked to be removed to a third country, such
as New Zealand, but not Lebanon. On 23 March 2016, Mr. El-Ali refused to sign his
completed application for a Lebanese travel document. On 8 April 2016, the Department
requested his pre-removal clearance, noting that Mr. El-Ali’s removal would be involuntary.
Although scheduled for 8 May 2016, Mr. El-Ali’s removal was halted four days later.
31.
On 4 November 2016, however, Mr. El-Ali made a voluntary request for removal. On
7 December 2016, he repeated this request for somewhere other than Lebanon. On 15 January
2017, Mr. El-Ali withdrew his request in writing.
32.
On 17 March 2017, Mr. El-Ali signed a request for removal from Australia. The
Department of Immigration and Border Protection maintained that it was working with
Mr. El-Ali to facilitate his removal. According to the source, Mr. El-Ali, however, was
allegedly induced to sign the request form by immigration officers. He orally withdrew the
request for removal from Australia on 16 June 2017, confirming that withdrawal in writing
on 28 August 2017.
33.
On 23 June 2017, the Department of Immigration and Border Protection noted that,
as an unlawful non-citizen in criminal custody without reasonable expectation of obtaining a
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travel document, Mr. El-Ali was no longer available for either voluntary or involuntary
removal.
34.
On 21 January 2019, Mr. El-Ali requested removal from Australia under
section 198 (1) of the Migration Act, signing a request form on 25 February 2019. However,
he did not nominate a country of return. Therefore, the Department of Home Affairs
considered Mr. El-Ali to be on an involuntary removal pathway. The following day, the
Department commenced the process of obtaining a Lebanese travel document for Mr. El-Ali.
35.
In April 2019, the Embassy of Lebanon advised that they were still waiting for
approval from the Security General in Beirut before the matter could be processed. On
23 May 2019, the Department of Home Affairs sent a request to the Lebanese authorities for
travel documents for Mr. El-Ali. On 22 July 2019, however, the Department was informed
that the travel documents would not be provided for an unknown period. On 4 December
2019, departmental officers met with representatives of the Embassy of Lebanon, the
outcome of which, according to the Department, was that the Embassy in Canberra would
take over the assessment of Mr. El-Ali’s application for Lebanese travel documents.
36.
Mr. El-Ali subsequently advised the Department of Home Affairs that he had enquired
at the Embassy of the State of Palestine in Australia about possible removal to the country.
Mr. El-Ali verbally stated that he was willing to be removed to the State of Palestine if a
travel document were issued, on the basis that the Lebanese application remained ongoing.
On 6 February 2020, at Mr. El-Ali’s request, the Department’s officers commenced attempts
to obtain a travel document for Mr. El-Ali to travel to the State of Palestine. On 3 March
2020, Mr. El-Ali wrote to the Department to proceed with lodging an application for a
Palestinian travel document.
37.
On 20 February 2020, Mr. El-Ali signed a removal request form, listing his preferred
destination as Lebanon, the State of Palestine, Europe, New Zealand or Turkey. In March
2020, the removals officer responsible for coordinating the application for Mr. El-Ali’s travel
documents became aware that the Embassy of Lebanon in Canberra had closed. It did not
reopen until mid-October 2020.
38.
On 24 March 2020, Mr. El-Ali expressed concern about the coronavirus disease
(COVID-19) pandemic and said that, on that basis, he should be released from detention. The
officers wrongly treated this correspondence as a withdrawal of his request for removal. On
25 March 2020, the Department of Home Affairs determined that the removal of Mr. El-Ali
should be considered involuntary and that communications with the Palestinian authorities
should cease.
39.
On 11 June 2020, Mr. El-Ali again requested removal from Australia under
section 198 (1) of the Migration Act. The Department of Home Affairs maintained that it was
making arrangements to effect Mr. El-Ali’s removal as soon as was reasonably practical,
stating that the Department was taking steps to effect Mr. El-Ali’s removal to third countries,
including to Lebanon, where he might have a right of entry and/or stay. On 20 October 2020,
the departmental official responsible visited the Embassy of Lebanon and was informed that
no progress had been made on Mr. El-Ali’s application for travel documents. The Department
followed up again with the Embassy of Lebanon on 22 April and 27 May 2021, with the latter
stating that no update had been received from Lebanon.
40.
On 9 December 2020, Mr. El-Ali filed in the Federal Court of Australia for release on
the basis of unlawful detention. On 28 July 2021, however, Mr. El-Ali withdrew his case
from the Court due to a change in the law.
41.
On 2 September 2021, Mr. El-Ali’s legal counsel wrote to the then Minister for
Immigration, Citizenship and Multicultural Affairs of Australia, reiterating Mr. El-Ali’s
willingness to be removed to any safe third country and noting that the Minister’s current
approach of waiting for Lebanese travel documents did not seem to be effective. The counsel
requested that evidence of the steps taken to remove Mr. El-Ali be provided by 30 September
2021; otherwise, Mr. El-Ali reserved the right to take legal action.
42.
On 19 October 2021, the Government Solicitor responded, stating that, as Mr. El-Ali
did not currently possess a valid travel document that extended to him a right of entry into
any country, it had not been, and was not currently, reasonably practicable for the Department
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of Home Affairs to remove him from Australia. It was also recalled that a valid Lebanese
travel document was obtained for Mr. El-Ali in October 2017, but he was not removed at that
time. An application for a new travel document was lodged with the Lebanese authorities in
February 2019, which is still pending. The Department of Home Affairs continues to actively
engage with the Lebanese authorities about the status of the pending travel document
application. The Minister for Home Affairs is prepared to explore options to remove
Mr. El-Ali to a third country other than Lebanon. Officers of the Department of Home Affairs
have tried to engage Mr. El-Ali to obtain the additional information required to explore those
options, but he has been unresponsive. The Minister therefore considers that the legal action
is premature.
43.
On 1 December 2021, Mr. El-Ali filed a lawsuit in the Federal Court of Australia to
enforce his removal from Australia to a safe third country. Proceedings are ongoing.
44.
To date, no travel document has been received. It is understood that Lebanon has not
issued a travel document to someone in the position of Mr. El-Ali since May 2018 and the
current policy on Palestinian refugees is not to grant them travel documents.
45.
Furthermore, while Mr. El-Ali appears to be eligible for a Palestinian external
passport, there is no guarantee that the Ministry of the Interior of the State of Palestine will
approve the issuing of an external passport. The issuing of an external Palestinian passport is
not a right by law and is only done as a last resort to temporarily facilitate the movement of
persons in extremely difficult situations. Mr. El-Ali is not eligible for an authentic (as
opposed to external) Palestinian passport because only Palestinians who were living in
Palestine and were included in the 1967 census by Israel are officially recognized by Israel
as Palestinians. The source is unaware of anyone in Mr. El-Ali’s situation being admitted
into the State of Palestine.
46.
On 21 June 2022, Mr. El-Ali was issued with an Australian certificate of identity, on
which his nationality was listed as “Lebanese”. On 23 November 2022, the Government
issued Mr. El-Ali with another certificate of identity, on which his nationality was listed as
“unspecified”. It is unclear how such a certificate can be used in practice. Clarification has
been sought from the Government, but no response has been received.
47.
The detention of Mr. El-Ali is arbitrary. Ministerial powers under section 195A of the
Migration Act, which could be used to release Mr. El-Ali from detention, are discretionary.
48.
Mr. El-Ali has been deprived of liberty as a result of the exercise of his rights
guaranteed by articles 7 and 14 of the Universal Declaration of Human Rights. Mr. El-Ali
came to Australia as a stateless man to find a permanent home with his family and avoid
persecution in Lebanon and the State of Palestine on the basis of his being a stateless refugee
and an undocumented Palestinian.
49.
Mr. El-Ali has also been deprived of his rights in contravention of article 26 of the
International Covenant on Civil and Political Rights, which stipulates that all persons are
entitled to equal protection under the law, without discrimination. Asylum-seekers do not
have the same rights under Australian law as Australian citizens, who are not subjected to
administrative immigration detention. Immigration detention is described by the Department
of Home Affairs as being used as a last resort and for a very small proportion of those whose
status requires resolution, sometimes through protracted legal proceedings. This is not the
case for Mr. El-Ali, who has been detained in either criminal or administrative detention since
31 October 2009.
50.
The Human Rights Committee, in its general comment No. 35 (2014), states that
detention must be justified as reasonable, necessary and proportionate in light of the
circumstances, and reassessed as it extends in time. The fact that Mr. El-Ali has been held in
administrative detention for so long, despite making consistent requests to be removed from
Australia to a safe third country, illustrates that his detention is not reasonable, necessary or
proportionate and that it has not been properly or independently assessed as it extends in
time. The Australian Human Rights Commission and the Commonwealth Ombudsman have
no powers to enforce release of a person from immigration detention. As such, there is no
independent body to review the appropriateness of detention.
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51.
Unless Mr. El-Ali is released from administrative detention and granted a visa or
removed from Australia to a safe third country, he will be in detention indefinitely, given that
the Migration Act specifically provides, in sections 189 (1) and 196 (1) and (3), that unlawful
non-citizens must be detained and kept in detention until they are: (a) removed or deported
from Australia; or (b) granted a visa.
52.
The High Court of Australia has upheld mandatory detention of non-citizens as a
practice that is not contrary to the country’s Constitution.2 The effective result is that, while
Australian citizens can challenge administrative detention, non-citizens cannot. Australian
citizens and non-citizens are therefore not equal before the courts and tribunals of Australia.
53.
The Human Rights Committee has held that there is no effective remedy for persons
subject to mandatory detention in Australia. 3 Another judgment of the High Court of
Australia in 2021 further entrenched the legality of indefinite immigration detention, even in
circumstances in which the Government was not taking active steps to remove an individual
as soon as was reasonably practicable.4
54.
Mr. El-Ali has taken all necessary steps to seek protection in Australia and use the
avenues of appeal available to him in law.
(b)
Response from the Government
55.
On 2 May 2023, 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 June 2023, detailed information about the current situation of
Mr. El-Ali and to clarify the legal provisions justifying his continued detention, as well as its
compatibility with the obligations of Australia under international human rights law, and in
particular with regard to the treaties ratified by the State.
56.
On 13 June 2023, 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 31 July 2023.
57.
In its reply, dated 31 July 2023, the Government stated that Mr. El-Ali was born in
Lebanon to parents of Palestinian descent and arrived in Australia on 18 May 2005 as a
dependant on his mother’s Partner (Provisional) visa (subclass 309). He has remained in
Australia ever since.
58.
Mr. El-Ali resided in Australia on a number of Bridging visas between 19 March 2009
and 29 October 2013. On 30 October 2013, Mr El-Ali was detained under section 189 of the
Migration Act as he was an unlawful non-citizen.
59.
Mr. El-Ali has a criminal history dating back to March 2007, which includes
convictions for assault, drug-related matters, criminal damage and domestic violence.
60.
Mr. El-Ali is affected by the section 501E statutory bar due to his previous visa refusal
under section 501 of the Migration Act. Section 501E of the Migration Act prevents
individuals who have had a visa refused or cancelled under section 501 from making a valid
visa application in Australia, other than for a protection visa.
61.
Mr. El-Ali has been held in immigration detention for a cumulative period of six years
and 10 months. He was last detained under section 189 of the Migration Act on 13 August
2018 and is currently being held at Villawood Immigration Detention Centre.
62.
Based on documentary evidence, Mr. El-Ali is a stateless Palestinian and Lebanon is
his country of former habitual residence.
63.
Mr. El-Ali lodged three Protection visa (subclass 866) applications and was
consistently found to not engage the protection obligations of Australia. Mr. El-Ali presently
has no ongoing immigration matters with the Government.
2 Al-Kateb v. Godwin [2004] HCA 37.
3 C. v. Australia (CCPR/C/76/D/900/1999).
4 Commonwealth of Australia v. AJL20 [2021] HCA 21.
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64.
On 18 May 2005, Mr. El-Ali first entered Australia with his family aged 18 years, as
a dependant included in his mother’s application for a permanent Partner visa (subclass 100).
In February 2006, the Department of Immigration and Border Protection began processing
the permanent Partner visa application of Mr. El-Ali’s mother.
65.
On 5 December 2007, Mr. El-Ali was convicted of common assault. He was
subsequently discharged without penalty. On 14 February 2008, Mr. El-Ali was charged with
failing to comply with a bail agreement, as well as taking part in the production of a controlled
substance.
66.
In October 2008, the Department of Immigration and Border Protection received
allegations that Mr. El-Ali had committed a sexual assault. South Australia Police advised
the Department that, as a statement had been made and then subsequently withdrawn, no
charge had been laid.
67.
On 28 January 2009, Mr. El-Ali withdrew from his mother’s Partner (Migrant) visa
(subclass 100) application and his Partner (Provisional) visa ceased.
68.
On 31 October 2009, Mr. El-Ali was arrested for threatening aggravated harm and
remanded in custody. On 15 November 2010, he was sentenced to a total of 48 months
imprisonment with a non-parole period of 24 months for various crimes, including damaging
property, aggravated assault and hindering police.
69.
Mr. El-Ali became an unlawful non-citizen on 30 October 2013 when his Bridging
visa E (subclass 050) expired. On that same day, Mr. El-Ali was released from criminal
custody and immediately detained under section 189 (1) of the Migration Act. He was
subsequently transferred to Melbourne Immigration Detention Centre.
70.
On 10 September 2014, Mr. El-Ali was transferred to Christmas Island Immigration
Detention Centre under section 189 (3) of the Migration Act.
71.
On 25 November 2014, Mr. El-Ali was arrested by police on various charges,
including assault of a Serco immigration detention centre officer, common assault and
making threats to harm. On 8 January 2015, Mr. El-Ali was arrested on assault charges and
breach of bail conditions. He was subsequently transferred to criminal custody at the Perth
Remand Centre. On 27 August 2015, Mr. El-Ali was convicted of the charges laid on
25 November 2014 and was sentenced to 12 months’ imprisonment with a non-parole period
of 6 months.
72.
On 2 January 2016, Mr. El-Ali was released from criminal custody and detained under
section 189 (1) of the Migration Act. He was placed in a Western Australia correctional
facility under alternative place of detention arrangements. On 1 December 2016, he was
transferred back to immigration detention.
73.
On 26 April 2017, Mr. El-Ali escaped from immigration detention while attending a
medical appointment. He was subsequently located by police on 29 April 2017 and
transferred to a correctional facility. On 2 November 2017, Mr. El-Ali was sentenced to
10 months’ imprisonment (backdated to 29 April 2017) for absconding from immigration
detention.
74.
On 13 August 2018, Mr El-Ali was released on bail from criminal custody and
detained under section 189 (1) of the Migration Act. Mr El-Ali was placed in Yongah Hill
Immigration Detention Centre.
75.
On 16 June 2019, Mr. El-Ali was transferred to Villawood Immigration Detention
Centre, where he currently remains.
76.
Since 2019, Mr. El-Ali has been involved in 91 incidents while in immigration
detention, including a serious assault in April 2021.
77.
On 5 October 2022, International Health and Medical Services reported that
Mr. El-Ali had chronic lower back pain, epilepsy, asthma, a shoulder injury, left knee pain,
a history of torture and trauma, depression, antisocial personality disorder, a history of
self-harm, and anger and aggression issues. International Health and Medical Services
advised that Mr. El-Ali’s health conditions could be properly cared for in his current
placement.
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9
78.
Mr. El-Ali has a history of epilepsy since childhood and is sporadically compliant
with taking his prescribed medication. On 16 September 2022, Mr. El-Ali was reported to be
non-compliant in taking his prescribed medication. International Health and Medical
Services provided Mr. El-Ali with education sessions on taking his medication regularly. On
12 January 2023, a general practitioner from International Health and Medical Services
reported that Mr. El-Ali had been granted approval to self-administer his medications and he
seemed to be taking his medication regularly. That condition continues to be monitored and
managed by the general practitioner.
79.
Mr. El-Ali has a history of neck pain. On 22 September 2022, Mr. El-Ali was advised
to continue with physiotherapy and take anti-inflammatories as needed. That condition
continues to be monitored and managed by the general practitioner.
80.
On 2 August and 8 December 2022, Mr. El-Ali was reviewed by the general
practitioner for an asthma care plan review. His asthma was well controlled, and he was using
his medication once a day while exercising. Mr. El-Ali was to continue with his current
medication regime after being prescribed an additional inhaler in December 2022. Mr. El-Ali
last attended an asthma care plan review on 1 June 2023, during which he reported that he
had not had an asthma attack since 2011 and that he used an inhaler before exercise.
81.
Mr. El-Ali has a history of mental health issues some of which predate his arrival in
immigration detention. Those include detention fatigue and distress, as well as a documented
history of anger and aggression issues towards International Health and Medical Services
staff and stakeholders. In November 2018, he was diagnosed with an antisocial personality
disorder. On 16 September 2022, Mr. El-Ali was reviewed by a mental health nurse from
International Health and Medical Services to discuss his non-compliance with the prescribed
medication. On review, it was reported that Mr. El-Ali expressed frustration regarding limited
exercise equipment in the compound and frustration relating to his court case. Mr. El-Ali was
last assessed by a counsellor from International Health and Medical Services on 26 May
2023. Those conditions continue to be monitored and managed by the general practitioner.
82.
The visa system of Australia requires all non-citizens to hold a valid visa to enter
and/or remain in the country. Under section 189 of the Migration Act, an individual must be
detained in a situation in which an officer knows or reasonably suspects the individual is an
unlawful non-citizen. Under section 196 of the Migration Act, an unlawful non-citizen must
be kept in immigration detention until they are removed from Australia, or they are granted
a visa.
83.
Section 195A of the Migration Act provides the Minister for Home Affairs with the
power to grant a visa to a person in immigration detention, if the Minister considers it is in
the public interest to do so. In addition, section 197AB of the Migration Act provides the
Minister with the power to make a residence determination in respect of a person in
immigration detention, allowing them to reside in the community at a specified place and
under specified conditions, if the Minister considers it is in the public interest to do so.
84.
The powers of the Minister for Home Affairs under sections 195A and 197AB of the
Migration Act are discretionary. Furthermore, what is in the public interest is a matter for the
Minister to determine.
85.
If a person holds a visa and it is subsequently cancelled, he or she can seek to have
the merits of that decision reviewed by the Administrative Appeals Tribunal in prescribed
circumstances and through domestic judicial processes.
86.
The detention of individuals on the basis that they are unlawful non-citizens is not
arbitrary under international law if it is reasonable, necessary and proportionate in light of
the particular circumstances of the individuals. 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 properly justifiable. Under the Migration Act,
detention is not limited by a set time frame but is dependent on a number of factors based on
an individual’s circumstances, including identity determination, developments in country,
health and character or security matters. At this time, as Mr. El-Ali has been found not eligible
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for a protection visa, ministerial intervention remains the only avenue for him to be granted
a Bridging visa or be placed in the community.
87.
Mr. El-Ali has previously had a visa refused under section 501 of the Migration Act,
and therefore is precluded from lodging a valid Bridging visa E application in accordance
with section 501E of the Act. Mr. El-Ali’s case has been assessed under sections 195A and
197AB of the Migration Act and the ministerial guidelines on several occasions. On
7 September 2020, his case was assessed as not meeting the ministerial intervention
guidelines on sections 195A and 197AB. On 21 June 2021 and 23 May 2022, his case was
found to not meet the requirements of section 195A. On 8 June 2022, a ministerial
intervention process for Mr. El-Ali’s case was commenced under sections 195A and 197AB
of the Migration Act. That process is ongoing.
88.
Detention in an immigration detention centre is a last resort for the management of
unlawful non-citizens. Mr. El-Ali remains in immigration detention, in accordance with
Australian law, because he is an unlawful non-citizen (as he is not an Australian citizen, does
not hold a visa that is in effect and is present in the Australian migration zone). The
Department of Home Affairs maintains ongoing engagement with the relevant authorities in
an effort to facilitate his voluntary removal.
89.
Immigration detention is administrative in nature and is not punitive. The Government
is committed to ensuring that all individuals in immigration detention are treated in a manner
consistent with the international legal obligations of Australia. The ongoing detention of
Mr. El-Ali is justifiable and not arbitrary and is consistent with the Covenant.
90.
The Department of Home Affairs is required under section 486N of the Migration Act
to provide the Commonwealth Ombudsman with reports detailing the circumstances of
individuals who have been in immigration detention for a cumulative period of two years and
every six months thereafter. Following receipt of the Department’s reports, the
Commonwealth Ombudsman prepares independent assessments of the individual’s
circumstances and provides the Minister for Home Affairs with a report under section 486O
of the Act. While not a judicial body, the Commonwealth Ombudsman may make
recommendations to the Minister and/or the Department regarding the circumstances and
appropriateness of the individual’s detention, including their detention placement.
91.
Persons in immigration detention are able to seek judicial review of the lawfulness of
their detention before the Federal Court of Australia or the High Court of Australia.
Section 75 (v) of the Constitution provides that the High Court has original jurisdiction in
relation to every matter in which 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 those provisions that constitute the legal mechanism through which non-citizens may
challenge the lawfulness of their detention. Australian citizens and non-citizens can equally
seek a remedy against an officer of the Commonwealth under the Constitution.
92.
The Government disagreed with the statement of the source that “Australian citizens
and non-citizens are not equal before the courts and tribunals of Australia” and that the effect
of the decision of the High Court in Al-Kateb v. Godwin was that non-citizens could not
challenge administrative detention decisions. In Al-Kateb, the Court held that provisions of
the Migration Act requiring detention of unlawful non-citizens until they are removed or
granted a visa, even if removal is not reasonably practicable in the foreseeable future, are
lawful. The decision in Al-Kateb does not alter non-citizens’ ability to challenge the
lawfulness of their detention under Australian law. Furthermore, non-citizens are also able to
challenge the lawfulness of their detention through an application for a writ of habeas corpus.
93.
On 1 December 2021, Mr. El-Ali filed an application to the Federal Circuit and Family
Court, which was later transferred to the Federal Court, seeking an order that the Department
of Home Affairs must pursue the duty under section 198 of the Migration Act to remove him
as soon as reasonably practicable. This matter remains ongoing and judgment is reserved.
94.
While the Universal Declaration of Human Rights is not a legally binding instrument,
its articles reflect international law, to the extent that they have been codified in other legally
binding instruments. Notwithstanding that fact, Mr. El-Ali is detained as required by
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section 189 of the Migration Act as he is an unlawful non-citizen, not as a consequence of
seeking protection. Neither seeking asylum nor entering Australia unlawfully is a criminal
offence under domestic law. Furthermore, Mr. El-Ali’s claims for protection were assessed
against the Protection visa criteria in the Migration Act and findings were made by the
Department of Home Affairs that Mr. El-Ali did not engage the protection obligations of
Australia.
95.
It is a matter for Australia to determine, consistent with its obligations under
international law, who may enter its territory and under which conditions, including by
requiring that a non-citizen hold a visa in order to lawfully enter and remain in the country
and that in circumstances in which a visa is not held, a non-citizen is subject to immigration
detention. To the extent that there is differential treatment of citizens and non-citizens in that
Australian citizens are not subject to immigration detention, this differential treatment is not
discriminatory and is not inconsistent with article 26 of the Covenant because it is aimed at
achieving a purpose that is legitimate, based on reasonable and objective criteria, and is
proportionate to the aim to be achieved.
96.
The differential treatment provided for in the Migration Act between Australian
citizens and non-citizens is for the legitimate aim of ensuring the integrity of the country’s
migration programme, assessing the security, identity and health of unlawful non-citizens
and protecting the Australian community. That is consistent with articles 12 (the right to
liberty of movement and freedom to choose residence) and 13 (the right to expel aliens
lawfully in the territory of a State party in accordance with the law) of the Covenant. The
differentiation is reasonable because it is consistent with those aims, and no more restrictive
than required. Therefore, any differential treatment between citizens and non-citizens is
based on reasonable and objective criteria for a legitimate purpose and does not amount to
prohibited discrimination under the Covenant.
97.
Australia, as a party to the core international human rights treaties, takes steps to
respect, protect, promote and fulfil the right to non-discrimination. However, equality and
non-discrimination should not be understood simplistically as requiring identical treatment
of all persons in all circumstances. Furthermore, under international human rights law, not
all differences in treatment will constitute discrimination. The Government submits that the
treatment of Mr. El-Ali amounts to permissible legitimate differential treatment, consistent
with the obligations of Australia under the Covenant.
98.
Mr. El-Ali does not engage protection obligations and has no ongoing immigration
matters. On 15 June 2022, the Department of Home Affairs lodged a certificate of identity
application with the Department of Foreign Affairs and Trade to enable Mr El-Ali to travel.
A certificate of identity was issued in June 2022, however, there was an error on the document
regarding his nationality. A new certificate of identity was issued on 23 November 2022 and
is valid until 23 November 2023.
99.
The Department of Home Affairs has also followed up on multiple third country
options. Each of the countries approached that would allow entry on an Australian-issued
certificate of identity also has visa requirements and a limited period of stay for holders of
such certificates. Mr. El-Ali is unable to meet the visa requirements of any of the countries
explored to date.
100.
The Government is committed to ensuring that all individuals in immigration
detention are treated in a manner consistent with the international legal obligations of
Australia. Mr. El-Ali’s immigration detention is lawful because he has been detained under
the Migration Act as an unlawful non-citizen (as he does not hold a visa). The ongoing
detention of Mr. El-Ali is justifiable, proportionate and not arbitrary in the context of the
Covenant. It is justifiable and proportionate while the Department of Home Affairs is
working to remove Mr. El-Ali’s from Australia, considering all the circumstances of the case
(including Mr. El-Ali’s criminal history and removal options) and the country’s international
obligations. Mr. El-Ali has been found not to engage the protection obligations of Australia
under the Migration Act both on refugee and complementary protection grounds. A
ministerial intervention process for Mr. El-Ali’s case under sections 195A and 197AB of the
Migration Act is ongoing within the Department of Home Affairs. Mr. El-Ali has no ongoing
substantive matters before the Department of Home Affairs.
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101.
There is no information in departmental records to indicate that Mr. El-Ali’s current
placement (in Villawood Immigration Detention Centre) is not appropriate. Mr. El-Ali has
no health issues that cannot be managed in an immigration detention facility. Mr. El-Ali
remains favourably disposed towards removal pathways. The Government continues to
engage with international authorities to successfully facilitate his removal.
102.
Thus, Mr. El-Ali is lawfully detained under section 189 (1) of the Migration Act, in
accordance with the international obligations of Australia. It is the position of the
Government that Mr. El-Ali’s immigration detention is lawful and remains appropriate. It is
a matter for the Government to determine who may enter its territory and under which
conditions, including by requiring that non-citizens hold a visa in order to lawfully enter and
remain in Australia, and that in circumstances in which a visa is not held, a non-citizen is
subject to immigration detention.
(c)
Further comments from the source
103.
On 2 August 2023, the reply of the Government was sent to the source for further
comments, which the source provided on 17 August 2023.
104.
The source suggests that Australia does not have a separate visa category for stateless
persons. As such, persons who are stateless are forced to apply for Protection visas, which
are determined on the basis of refugee criteria. In situations in which stateless individuals do
not meet the refugee criteria, as in Mr. El-Ali’s case, they have no other way of formalizing
their immigration status in Australia and cannot return to any other country. As such, stateless
persons, such as Mr. El-Ali, are particularly at risk of indefinite administrative detention in
Australia. That is contrary to the obligations of Australia to reduce statelessness under the
Convention on the Reduction of Statelessness.
105.
The source raises a concern that the Government used a prison for 11 months as an
alternative place of administrative detention. One of the reasons that administrative detention
is lawful under Australian law is because it does not have a punitive aim. Administratively
detaining Mr. El-Ali for 11 months in a prison has clear punitive elements. The decision to
administratively detain Mr. El-Ali in a prison for 11 months is contrary to the separation of
powers under the Constitution of Australia and is arguably unlawful under the Migration Act.
106.
The Government’s statement that “Mr El-Ali has been involved in 91 incidents in
immigration detention” is misleading. Neither Mr. El-Ali nor his legal representatives have
been provided with the record of those 91 incidents. The incidents contain no detail as to the
circumstances of the incidents and are not probative evidence of Mr. El-Ali’s involvement.
107.
Mr. El-Ali has not received consistent physical or mental health care while in
immigration detention.
108.
Mr. El-Ali is not eligible for a Protection visa because he is stateless. There is no other
visa that Mr. El-Ali can apply for which addresses his stateless status. As such, he is reliant
upon the discretionary powers of the Minister for Home Affairs to intervene. Due to
Mr. El-Ali’s criminal record, he does not meet the criteria for referral to the Minister.
109.
Referring to the previous opinions of the Working Group on Australia, the source
concludes that not only has the Government detained Mr. El-Ali for a cumulative period of
almost seven years, but when Mr. El-Ali asked to be removed from Australia to bring his
detention to an end, the Government refused to comply with such a request and has fought
against this request in the courts. There are no other steps Mr. El-Ali can take to secure his
freedom.
2.
Discussion
110.
The Working Group thanks the source and the Government for their submissions.
111.
In determining whether the deprivation of liberty of Mr. El-Ali 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
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13
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
(a)
Category I
112.
The Working Group refers to its line of jurisprudence in relation to Australia. Since
2017, the Working Group has considered 22 cases, all of which concern the same issue,
namely mandatory immigration detention in Australia in accordance with the Migration Act.6
113.
The Working Group reiterates its views on the Migration Act.7
114.
The Working Group furthermore reiterates its alarm that, in all those 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 is in
accordance 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 line with its obligations under
international human rights law. Since 2017, the Government has been consistently and
repeatedly reminded of those 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.
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, and noting the failure of the Government to take any action, the Working
Group concludes that the detention of Mr. El-Ali 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.
(b)
Category II
117.
The Working Group observes that Mr. El-Ali arrived in Australia in May 2005, aged
19, with his mother who remarried an Australian man, and was granted a dependent Partner
(Provisional) visa. Later, being expelled from home by his stepfather, he was engaged in
different criminal activities and served several terms of imprisonment in the criminal justice
5 A/HRC/19/57, para. 68.
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, No. 33/2022,
No. 42/2022 and No. 14/2023.
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, among others, 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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context until he was finally moved to immigration detention due to the mandatory
cancellation of his visa as a result of his imprisonment.
118.
Moreover, he is precluded from making a valid visa request by virtue of section 501
of the Migration Act. Furthermore, it is not possible for him to be removed to any third
country – the Government admitted that Mr. El-Ali is unable to meet the visa requirements
of any of the countries explored to date.
119.
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. El-Ali remains
detained today on the basis of that Act. The source argues that he is detained in violation of
the Covenant and the Universal Declaration of Human Rights.
120.
The Working Group notes that the Government has given no indication as to when
Mr. El-Ali’s detention could end. Noting that he has already been detained for approximately
five years, the Working Group is bound to conclude that his detention appears to be
indefinite.
121.
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 That 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.
122.
The Working Group cannot accept that detention for more than five years could be
described as a brief initial period, to use the language of the Human Rights Committee. The
Government has not presented sufficient reasons specific to Mr. El-Ali that would justify his
detention. The Working Group also notes his health problems as a significant factor in favour
of his release. The Working Group concludes – as not contested by the Government – that
there was no reason for detaining Mr. El-Ali other than his migration status.
123.
The Working Group thus finds that Mr. El-Ali was detained due to the exercise of his
legitimate rights under article 14 of the Universal Declaration of Human Rights.
124.
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
125.
Mr. El-Ali 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. El-Ali has been subjected to de facto indefinite detention due to his
immigration status, in clear breach of articles 2 and 9 of the Covenant.
126.
Noting that Mr. El-Ali 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. El-Ali 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
14 A/HRC/39/45, annex, para. 12.
15 Paras. 2 and 7.
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undertaken under international law. The Working Group refers the present case to the Special
Rapporteur on the human rights of migrants, for appropriate action.
(c)
Category IV
127.
The source further argues that Mr. El-Ali has been subjected to administrative
detention 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 the Commonwealth Ombudsman. In a recent case,16 the
Working Group examined those statements in detail, and came to the conclusion that, despite
the claims of the Government to the contrary, the detention of the applicant was, in fact,
punitive in nature, which, as it highlighted in its revised deliberation No. 5, should never be
the case17 and is in breach of article 9 of the Covenant.
128.
Nothing in the present case would allow the Working Group to reach a different
conclusion. Presently, Mr. El-Ali has been detained for more than five years and the
Government has not been able to identify how long his detention will last, which means that
it is de facto indefinite.
129.
Consequently, the Working Group finds that Mr. El-Ali 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 arriving
at 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.18
(d)
Category V
130.
The Working Group notes that the source, without explicitly invoking category V,
argues that Mr. El-Ali, 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, 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.
131.
The Working Group has examined these arguments on numerous occasions. It has
repeatedly noted that the Government is failing to explain how 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.
132.
As in the past, the Working Group cannot but again concur with the views of the
Human Rights Committee on this matter,19 and this remains the position of the Working
Group in the present case. The Working Group underlines that this situation is discriminatory
16 Opinion No. 14/2023.
17 A/HRC/39/45, annex, paras. 9 and 14. See also opinion No. 49/2020, para. 87.
18 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/1255/2004,
1256/2004, 1259/2004, 1260/2004, 1266/2004, 1268/2004, 1270/2004 and 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).
19 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.
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and contrary to article 26 of the Covenant. It therefore concludes that the detention of
Mr. El-Ali is arbitrary, falling under category V.
(e)
Concluding remarks
133.
The Working Group wishes to place on record its very serious concern regarding the
state of Mr. El-Ali’s mental and physical health. It 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. 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.20
134.
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 coronavirus disease (COVID-19) pandemic, the Working Group looks forward
to carrying out the visit as soon as is 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.
3.
Disposition
135.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Khaled el-Ali, being in contravention of articles 2, 3, 7,
8, 9 and 14 of the Universal Declaration of Human Rights and articles 2, 9 and 26 of
the International Covenant on Civil and Political Rights, is arbitrary and falls within
categories I, II, IV and V.
136.
The Working Group requests the Government of Australia to take the steps necessary
to remedy the situation of Mr. El-Ali 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.
137.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. El-Ali immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law.
138.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. El-Ali and to take appropriate measures against those responsible for the violation of his
rights.
139.
The Working Group requests the Government to bring its laws, particularly the
Migration Act, into conformity with the recommendations made in the present opinion and
with the commitments made by Australia under international human rights law.
140.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the human rights of migrants, for appropriate
action.
141.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up
142.
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:
20 A/HRC/39/45, annex, para. 38.
A/HRC/WGAD/2023/44
GE.23-17611
17
(a)
Whether Mr. El-Ali has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. El-Ali;
(c)
Whether an investigation has been conducted into the violation of Mr. El-Ali’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.
143.
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.
144.
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 of any failure to take action.
145.
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.21
[Adopted on 29 August 2023]
21 Human Rights Council resolution 51/8, paras. 6 and 9.