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.23-24711(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-eighth session, 13–17 November 2023
Opinion No. 61/2023 concerning Peter Iruviere Mills (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 7 July 2023 the Working Group
transmitted to the Government of Australia a communication concerning Peter Iruviere Mills.
The Government submitted a late response on 16 October 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/2023/61
General Assembly
Distr.: General
19 December 2023
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Peter Iruviere Mills is believed to have been born on 25 July 2002. His nationality is
unknown but is presumed to be Nigerian. Mr. Mills does not have any identification
documents that can be relied upon. He has no reliable independently verifiable information
regarding his biological family.
5.
The source states that, on the facts, as a child Mr. Mills was kidnapped and trafficked
from Nigeria by two adults claiming to be his parents who then abandoned him when they
left him in the care of another woman (Mr. Mills’ “aunt”), from whom the State child services
later removed him.
6.
On 6 August 2011, Mr. Mills arrived in Australia with a person claiming to be his
mother and two other minors, with the individual claiming to be Mr. Mills’ father having
arrived in Australia earlier that year. At that time, Mr. Mills was either 8 or 9 years old. The
source explains that Mr. Mills, along with the two other minors, had travelled to Australia as
dependants named on the skilled-sponsored visa (subclass 176) of the individual claiming to
be their father.
7.
In 2013, when Mr. Mills was aged approximately 12, he briefly returned to Lagos to
care for an individual who claimed to be his grandmother. Mr. Mills did not attend school
during his stay in Nigeria. In June 2014, he returned to Australia and was placed in the care
of a person claiming to be his aunt.
8.
In 2015, the Department of Immigration and Border Protection discovered that
Mr. Mills was not the son of the couple that had brought him to Australia. There is no
documentation to show that the couple had adopted Mr. Mills or had been appointed as his
legal guardians. On 7 January 2016, the authorities cancelled the skilled-sponsored visa of
the individual claiming to be the father of Mr. Mills on the basis that he had provided forged
documents related to Mr. Mills; Mr. Mills was 13 or 14 years old at that time. However, the
Department of Immigration and Border Protection took no steps against the two
aforementioned adults for having trafficked Mr. Mills, nor any steps to assist Mr. Mills in
coming to terms with being trafficked.
9.
The source explains that, at that stage, under the Immigration (Guardianship of
Children) Act 1946, the Minister for Immigration and Border Protection became the guardian
of Mr. Mills. On 20 October 2016, Mr. Mills was granted a bridging visa (subclass 050).
10.
In 2018, when Mr. Mills was approximately 16 years old, he was removed from the
care of an individual claiming to be his aunt. The source notes that the child protection
investigation carried out prior to his removal noted the inappropriate behaviour of the adults
claiming to his father and aunt towards Mr. Mills, including emotional abuse, limited access
to resources and being forced to shower in their presence. The source states that that raises
questions regarding whether Mr. Mills was trafficked to Australia for nefarious purposes.
11.
Mr. Mills was placed in a residential care setting, but subsequently became homeless.
On 17 July 2019, Mr. Mills was sentenced to a youth supervision order of nine months for
offences committed in 2018.
12.
On 26 November 2019, the Administrative Appeals Tribunal upheld the decision to
cancel the skilled-sponsored visa of the individual claiming to be the father of Mr. Mills, but
found that it had no jurisdiction to adjudicate on the cancellation of Mr. Mills’ dependent
visa.
13.
On 26 December 2019, Mr. Mills’ bridging visa expired. On 8 January 2020, he was
granted another bridging visa on departure grounds.
14.
In January 2020, Mr. Mills was detained for five months for crimes committed in 2019
and 2020, which included theft, robbery and intentionally causing injury. The source notes
that if the date of birth of Mr. Mills is indeed 25 July 2002, then he was a child (17 years old)
when he was placed in the adult male detention centre.
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15.
On 4 June 2020, Mr. Mills was sentenced to time served (5 months) and ordered to
complete an 18-month community corrections order, incorporating mental health treatment,
drug and alcohol counselling and behaviour change programmes. The presiding magistrate
also ordered judicial monitoring. That order has yet to be implemented, notes the source,
despite the presiding magistrate seeking updates regarding Mr. Mills through judicial
monitoring.
16.
According to the source, on the same day, 4 June 2020, Mr. Mills was detained under
section 189 (1) of the Migration Act 1958. The source explains that Mr. Mills was an
unlawful non-citizen (since he did not have a visa and was not a citizen) and liable for
mandatory detention under the Migration Act.
17.
On 30 September 2020, Mr. Mills lodged an application for a protection visa. The
application was completed by a migration agent who took instructions from a person claiming
to be the father of Mr. Mills, and not Mr. Mills himself. It is understood that the person
claiming to be the father of Mr. Mills instructed the migration agent to downplay the role he
had played in trafficking Mr. Mills to Australia. Mr. Mills was not involved in the drafting
process and trusted that his alleged father would act in his best interests.
18.
The source remarks that it was not until May 2022 that Mr. Mills engaged his own
legal representative and challenged the identity of his trafficker. It was at that time that the
person claiming to be Mr. Mills’ father also disclosed that Mr. Mills was a year younger than
claimed in the forged documents. Furthermore, it was not until May 2022 that Mr. Mills came
to understand, through advice from his legal counsel, that he was the victim of trafficking in
persons.
19.
On 16 November 2020, Mr. Mills’ application for a protection visa was refused. In
the decision, the official stated that the authorities had concerns regarding the identity of
Mr. Mills and noted that he had not provided any Nigerian identity documents. The official
also noted that, having assessed the applicant's circumstances in the light of the information
contained within the decision to cancel his visa and given that he had arrived in Australia
from Nigeria with a Nigerian family, he was, however, satisfied that the applicant had been
born in Nigeria and was a citizen of Nigeria.
20.
The source notes that to date the Nigeria High Commission in Australia has not been
able to find any record of Mr. Mills in official government records. The source also notes
that the above assessment is concerning given that the Nigerian family was not Mr. Mills’
family, and there is no evidence that Mr. Mills is Nigerian other than the fact that he had
flown to Australia from Nigeria.
21.
The Nigeria High Commission issued Mr. Mills with a travel document for his
scheduled deportation on 24 May 2022, which was cancelled by the Department of Home
Affairs less than 12 hours before it was due to take place. The Department of Home Affairs
has not provided any written reasons as to why the deportation was cancelled, although it did
confirm orally that it had been due to technical reasons. There is no evidence that the Nigeria
High Commission is aware that all Mr. Mills’ identity documents are forgeries and that he
has no independently verifiable information to confirm his identity. The source notes that it
is not known whether the Department of Home Affairs is still planning to remove Mr. Mills
from Australia.
22.
In May 2022, Mr. Mills made a request for ministerial intervention on the basis of
being a victim of trafficking in children (with an unknown identity) and of the associated
mental health effects, which have not been assessed by the Department of Home Affairs. The
source states that Mr. Mills should be afforded such protection and granted a bridging visa to
reside in the community while his application is being assessed.
23.
On 16 June 2022, Mr. Mills applied for a bridging visa, which was refused on 20 June
2022. Mr. Mills appealed that decision to the Administrative Appeals Tribunal. On 4 July
2022, the Administrative Appeals Tribunal confirmed the decision not to grant a bridging
visa.
24.
On 7 July 2022, the Department of Home Affairs refused to refer the ministerial
intervention request and, on 4 August 2022, an application for judicial review of that decision
was lodged on behalf of Mr. Mills with the Federal Court of Australia.
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25.
On 30 August 2022, Mr. Mills applied once again for a bridging visa. That request
was refused by the Department of Home Affairs on 2 September 2022. Mr. Mills appealed
that decision to the Administrative Appeals Tribunal, which, on 15 September 2022, found
that Mr. Mills satisfied the preconditions for a bridging visa and remitted the matter to the
Department of Home Affairs to determine whether Mr. Mills would comply with any
conditions placed on such a visa.
26.
On 20 September 2022, the Department of Home Affairs again refused the application
for a bridging visa. Mr. Mills appealed that decision to the Administrative Appeals Tribunal,
which, on 30 September 2022, upheld the decision to refuse the application for a bridging
visa.
27.
The source states that Mr. Mills is currently held at Yongah Hill Immigration
Detention Centre. If Nigeria were no longer to accept that Mr. Mills is Nigerian or the
Department of Home Affairs were no longer prepared to attempt to deport Mr. Mills to
Nigeria, Mr. Mills would face indefinite immigration detention. The source presumes that
any removal process is on hold due to the hearing at the Federal Court of Australia relating
to the decision not to refer his request for ministerial intervention.
28.
The source notes that claims relating to Mr. Mills’ being the victim of trafficking in
children and his difficulties in reintegrating into Nigeria given his long absence and his
childhood spent largely in Australia were not raised in his earlier application for protection.
Critically, his mental health issues and the lack of mental health services in Nigeria were also
not raised. Mr. Mills was diagnosed with severe anxiety and depression at the age 14 or 15
and these conditions remain untreated. The source also notes that Mr. Mills’ prospects of
continuing education as a young man would be severely jeopardized unless he were granted
a visa. Saint Joseph’s College in North Melbourne has pledged ongoing support for Mr. Mills
should he be granted a visa to rejoin the Australian community. The Australian Red Cross
has also offered to provide support services to him. The source reiterates that there is no
evidence of a trauma-informed approach being used by the Department of Home Affairs in
relation to Mr. Mills’ situation.
Legal analysis
29.
The source submits that the continuing immigration detention of Mr. Mills is arbitrary
and falls under categories I, II, III, IV and V of the Working Group.
a.
Category I
30.
The source recalls that the basis for the deprivation of liberty of Mr. Mills is sections
189, 196 and 198 of the Migration Act. Under the Act, unlawful non-citizens (including those
who arrived with valid visas and then had such visas cancelled), such as Mr. Mills, must be
detained and kept in immigration detention until one of the following occurs: he is removed
from Australia under section 198 or section 199 of the Act; he is deported under section 200
of the Act; or he is granted a visa. Detention is mandatory and the only relevant criteria in
deciding whether to detain an individual is whether they are a non-citizen and whether they
hold a valid visa. As such, discretionary criteria, such as a person’s gender, age, race and
mental and physical health, are not considered prior to a person being detained.
31.
The source recalls that, in cases in which persons who are administratively detained
have challenged the legal basis of their detention under the Migration Act, the Government
has routinely responded by asserting that deprivation of liberty for an indefinite period is
legal because it is authorized by Australian law. The legality of such a practice has been
confirmed by the High Court of Australia. 2 In that regard, the source refers to general
comment No. 31 (2004) of the Human Rights Committee, in which it crystallizes the principle
that a State cannot plead, in mitigation of its responsibilities under the Covenant, that its laws
2 High Court of Australia, Al-Kateb v. Godwin, Case No. A253/2003, Judgment, 6 August 2004; and
Commonwealth of Australia v. AJL20, Case Nos. C16/2020 and C17/2020, Judgment, 23 June 2021.
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prohibit it from fulfilling its international obligations. The Working Group has also addressed
that issue in several of its opinions. 3
b.
Category II
32.
The source argues that the deprivation of liberty of Mr. Mills is a result of the exercise
of his rights or freedoms guaranteed by articles 7, 13 and 14 of the Universal Declaration of
Human Rights and by articles 2, 3, 12 and 26 of the Covenant.
33.
More specifically, in relation to article 7 of the Universal Declaration of Human
Rights, the source submits that the very nature of the continued detention of Mr. Mills is
discriminatory, as his detention is only specific to a particular group in the community,
namely unlawful non-citizens. In relation to article 13 (1) of the Universal Declaration of
Human Rights, it is submitted that the practice of placing unlawful non-citizens, such as
Mr. Mills, in immigration detention centres is a method of segregation based on a
discriminatory narrative of asylum-seekers and refugees being second-class residents. That
narrative is legislated into, and supported by, the Migration Act itself. For instance, it is
argued that sections 13 and 14 of the Act demonstrate the dichotomy between “lawful
non-citizens” and “unlawful non-citizens”.
34.
The source notes, in relation to article 14 of the Universal Declaration of Human
Rights, that Mr. Mills arrived in Australia as a trafficked child. His application to the
Department of Home Affairs for protection was controlled by the man who trafficked him.
As such, Mr. Mills’ applications for protection have not been properly considered by the
Department of Home Affairs.
35.
Furthermore, in relation to article 12 of the Covenant, the source recalls general
comment No. 27 (1999) of the Human Rights Committee, in which it stated that the question
of whether an alien was “lawfully” within the territory of a State was a matter governed by
domestic law, which may subject the entry of an alien to the territory of a State to restrictions,
provided that they were in compliance with the State’s international obligations.
36.
According to the source, Mr. Mills is currently seeking asylum in Australia due to
being trafficked to Australia as a child and the resulting harm. As such, Mr. Mills is currently
in Australia to seek asylum and to avoid being returned to a place where he fears persecution
(including death and torture) as guaranteed by articles 3, 5, 13 (1) and 14 of the Universal
Declaration of Human Rights and article 7 of the Covenant. However, Mr. Mills is presently
detained under section 196 (1) of the Migration Act.
37.
The source recalls a recent case in which the High Court of Australia ruled that: “when
describing and justifying detention as being under and for the purposes of the Act, it will
always be necessary to identify the purpose for the detention. Lawfully, that purpose can only
be one of three purposes: the purpose of removal from Australia, the purpose of receiving,
investigating and determining an application for a visa permitting an alien to enter and remain
in Australia; or, in a case such as the present, the purpose of determining whether to permit
a valid application for a visa.”4 The source notes that Mr. Mills is not being detained for any
of the three reasons stated above, as he cannot be removed to Nigeria (and there are no
processes to remove him elsewhere) and the Department of Home Affairs has refused the
request for ministerial intervention.
38.
Furthermore, in relation to articles 2 (1), 3 and 26 of the Covenant, the source argues
that the very nature of the continued detention of Mr. Mills is discriminatory, as his detention
is only specific to a particular group in the community, namely unlawful non-citizens without
a visa.
39.
The source recalls that the Human Rights Committee has noted that the term
“discrimination” as used in the Covenant should be understood to imply a distinction,
exclusion or preference that is based on any ground such as race, colour, sex, language,
3 See opinions No. 74/2018, No. 1/2019, No. 2/2019, No. 74/2019, No. 35/2020, No. 70/2020, 71/2020,
72/2020, 17/2021, 68/2021 and 69/2021.
4 High Court of Australia, Plaintiff S4/2014 v. Minister for Immigration and Border Protection, Case
No. S4/2014, Judgment, 11 September 2014, para. 26.
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religion, political or other opinion, national or social origin, property, birth or other status,
and that has the purpose of nullifying or impairing the recognition, enjoyment or exercise by
all persons, on an equal footing, of all rights and freedom. The broad term “without
distinction of any kind” in article 2 (1) of the Covenant indicates that this provision also
captures multiple and intersectional discrimination. It is argued that Mr. Mills has been
discriminated against on the following intersecting grounds, which are prohibited by the
Covenant: as an “unlawful non-citizen”, which refers implicitly to national origin; and as a
person needing protection (an asylum-seeker).
40.
Such contentions do not undermine the long-standing jurisprudence of the Human
Rights Committee, namely the principle that a differentiation based on reasonable and
objective criteria does not amount to prohibited discrimination within the meaning of article
26, because it cannot be said that the discrimination against Mr. Mills is reasonable in
circumstances in which that discrimination has the practical of effect of committing an
individual to an indefinite period of administrative detention. As a matter of international
law, this follows from the requirement that a difference of treatment in the exercise of a right
must not only pursue a legitimate aim, but that there must also be a reasonable relationship
of proportionality between the means employed and the aim sought. The legitimate aim of
detention has been claimed, on several previous occasions, by the Government to include
preventing unlawful non-citizens from entering the community after travelling to Australia
by irregular means; ensuring the integrity of the country’s migration programme; and
assessing the identity and security risk of unlawful non-citizens. However, the source notes
that it remains unclear how detention without a fixed end point is proportional to any of those
aims. That is especially so in situations in which some of those aims cannot be considered as
ongoing and in which continuing aims can readily be achieved through non-invasive and
cheaper alternatives, such as requiring an individual to reside in a particular place within the
community or imposing reporting or surety requirements as a condition of remaining in
Australia.
c.
Category III
41.
The source argues that the right of Mr. Mills to a fair trial with respect to his detention
has not been observed. Although the Government has regularly argued that unlawful
non-citizens such as Mr. Mills are afforded effective review by the Commonwealth
Ombudsman and the Detention Review Committee, the Government has not been able to
explain how either of those two review mechanisms comply with article 9 (4) of the
Covenant.
42.
The source notes that the Commonwealth Ombudsman has no power to compel the
Department of Home Affairs to release a person from immigration detention and the
Detention Review Committee is not a judicial body and therefore falls short of the
requirements of article 9 (4) of the Covenant. The Detention Review Committee is also an
internal departmental body and thus not independent.
d.
Category IV
43.
The source submits that Mr. Mills is currently deprived of any remedy that could bring
his detention to an end. In that regard, the source recalls the case of C. v Australia,5 which
provides that non-citizens can seek judicial review of detention only for the limited purpose
of adjudicating whether they fall under the defined term of “unlawful non-citizen”. That
means that unlawful non-citizens are not afforded an opportunity to seek judicial intervention
on substantive grounds focused on determining whether continued detention is justified or
not.
44.
Furthermore, the High Court of Australia has confirmed6 that, in circumstances in
which the Commonwealth is under a statutory obligation to remove an individual as soon as
practicable from Australia and they are dilatory in performing this duty, then an order in the
nature of a writ of habeas corpus, which would ordinarily command the release of the
5 C. v. Australia (CCPR/C/76/D/900/1999).
6 High Court of Australia, Commonwealth of Australia v. AJL20.
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individual from detention, would not be an appropriate remedy. Instead, the High Court ruled
that the appropriate remedy, in the first instance, was to issue an order in the nature of
mandamus, which compels the Commonwealth to perform its statutory obligation to remove
the individual as soon as practicable. That is because a failure to perform a statutory
obligation, such as removing an individual as soon as possible, does not render the detention
of the individual unlawful. The source notes that that is at odds with international
jurisprudence, according to which the right of habeas corpus is considered to exist regardless
of whether deprivation of liberty is unlawful.
e.
Category V
45.
The source reiterates the discriminatory nature of the ongoing administrative
detention of Mr. Mills.
(b)
Response from the Government
46.
On 7 July 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 6 September 2023, detailed information about the situation of
Mr. Mills and to clarify the legal provisions justifying his continued detention and its
compatibility with the country’s obligations under international human rights law, in
particular with regard to the treaties ratified by the State.
47.
On 19 July 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 4 October 2023.
48.
The Government submitted its response on 16 October 2023, which was after the
deadline. Consequently, the Working Group cannot treat the reply as if it were presented in
accordance with the Working Group’s methods of work.
2.
Discussion
49.
In the absence of a response from the Government within the deadline, the Working
Group has decided to render the present opinion, in conformity with paragraph 15 of its
methods of work.
50.
In determining whether Mr. Mills’ detention is arbitrary, the Working Group has
regard to the principles established in its jurisprudence to deal with evidentiary issues. If the
source has presented a prima facie case for breach of international law constituting arbitrary
detention, the burden of proof should be understood to rest upon the Government if it wishes
to refute the allegations. Mere assertions by the Government that lawful procedures have
been followed are not sufficient to rebut the source’s allegations.7 In the present case, the
Government has chosen not to challenge the prima facie credible allegations made by the
source within the prescribed time limit.
a.
Category I
51.
The Working Group refers to its line of jurisprudence in relation to Australia. Since
2017, the Working Group has considered more than 20 cases, all of which concern the same
issue, namely mandatory immigration detention in Australia in accordance with the
Migration Act.8
52.
The Working Group reiterates its views on the Migration Act.9
53.
Furthermore, the Working Group reiterates its alarm that, in all those cases, the
Government has argued that the detention is lawful purely because it follows the stipulations
7 A/HRC/19/57, para. 68.
8 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. 42/2022,
No. 14/2023, No. 15/2023 and No. 44/2023.
9 Opinion No. 35/2020, paras. 98–103.
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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
follows its own domestic legislation does not in itself prove that the legislation is in
conformity 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.
54.
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 those obligations by numerous international human rights bodies,
including the Human Rights Committee,10 the Committee on Economic, Social and Cultural
Rights, 11 the Committee on the Elimination of Discrimination against Women, 12 the
Committee on the Elimination of Racial Discrimination,13 the Special Rapporteur on the
human rights of migrants14 and the Working Group.15 The Working Group calls upon the
Government to urgently review the Migration Act in the light of its obligations under
international human rights law.
55.
Noting that 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. Mills 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 that 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
56.
The Working Group observes that it is not disputed between the parties that Mr. Mills
arrived in Australia on 6 August 2011, allegedly aged 11, with persons who claimed to be his
parents and who later abandoned him. It is suggested that Mr. Mills is a victim of trafficking
in persons.
57.
Following the cessation of his bridging visa on 4 June 2020, he became an irregular
migrant, since which time he has been held in immigration detention.
58.
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. Mills 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.
59.
The Working Group notes that the Government in its late reply has given no indication
as to when Mr. Mills’ detention could end. Noting that he has already been detained for
approximately three years, the Working Group is bound to conclude that his detention
appears to be indefinite.
60.
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
10 CCPR/C/AUS/CO/6, paras. 33–38.
11 E/C.12/AUS/CO/5, paras. 17 and 18.
12 CEDAW/C/AUS/CO/8, paras. 53 and 54.
13 CERD/C/AUS/CO/18-20, paras. 29–33.
14 See A/HRC/35/25/Add.3.
15 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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in doubt. 16 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 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.
61.
The Working Group cannot accept that detention for more than three years could be
described as a brief initial period, to use the language of the Human Rights Committee. The
Government in its late reply has not presented sufficient reasons specific to Mr. Mills that
would justify his detention. The Working Group concludes that there is no reason for
detaining Mr. Mills other than his migration status, a fact that is not contested by the
Government.
62.
The Working Group thus finds that Mr. Mills was detained due to the exercise of his
legitimate rights under article 14 of the Universal Declaration of Human Rights.
63.
Furthermore, while the Working Group agrees with the argument presented again by
the Government in its late reply, 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.17
64.
Mr. Mills is therefore entitled to the right to liberty and security of person, as
guaranteed under 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. Mills has been subjected to de facto indefinite detention due to his
immigration status, in clear violation of articles 2 and 9 of the Covenant.
65.
Noting that Mr. Mills 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 that finding, the Working Group notes the late submission of the Government, in
which it states that Mr. Mills has always been treated in accordance with the stipulations of
the Migration Act. Be that as it may, such treatment is not compatible with the obligations
that Australia has undertaken under international law. The Working Group refers the present
case to the Special Rapporteur on the human rights of migrants, for appropriate action.
c.
Category IV
66.
The source further argues, both under categories III and IV, that Mr. Mills has been
subjected to administrative detention without remedy. The Working Group finds it
appropriate to examine only the latter one. The Government in its late reply denies those
allegations, arguing that persons in immigration detention can seek judicial review of the
lawfulness of their detention before the Federal Court of Australia, the High Court of
Australia or the Commonwealth Ombudsman. In a recent case, 18 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 case19 and is in
violation of article 9 of the Covenant.
67.
Nothing in the present case would allow the Working Group to reach a different
conclusion.
16 A/HRC/39/45, annex, para. 12.
17 Paras. 2 and 7.
18 Opinion No. 14/2023.
19 A/HRC/39/45, annex, paras. 9 and 14. See also opinion No. 49/2020, para. 87.
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68.
Consequently, the Working Group finds that Mr. Mills 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 enshrined in article 9 (4)
of the Covenant. That is therefore arbitrary, falling under category IV. In making that 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 violation of article 9 of the Covenant.20
While the situation appears to have been changed recently (see para. 72 below), such a change
does not negate the above conclusion in respect of Mr. Mills.
d.
Category V
69.
The source argues that Mr. Mills, as a non-citizen, appears to be in a different situation
to that of 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 of Australia in Al-Kateb v. Godwin. According to that decision,
while Australian citizens can challenge administrative detention, non-citizens cannot. In its
late 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.
70.
The Working Group has examined those arguments on numerous occasions. It has
repeatedly noted that the Government fails to explain how non-citizens can effectively
challenge their continued detention after that decision of the High Court of Australia, which
is what the Government must show in order to comply with articles 9 and 26 of the Covenant.
To that end, the Working Group once again specifically recalls the consistent jurisprudence
of the Human Rights Committee, in which it examined the implications of the judgment of
the High Court of Australia 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.21
71.
As in the past, the Working Group cannot but again concur with the views of the
Human Rights Committee on the matter.22 The Working Group underlines that that situation
is discriminatory and contrary to article 26 of the Covenant. It therefore concludes that the
detention of Mr. Mills is arbitrary, falling under category V.
e.
Concluding remarks
72.
The Working Group notes that, according to the media, on 8 November 2023, the
High Court of Australia overruled its decision in the case of Al-Kateb v Godwin in its judgment
(at present unpublished) in the case brought by a person referred to by the pseudonym NZYQ.
The Working Group welcomes this long-awaited change in jurisprudence, which it will have a
chance to examine in future. It notes, however, that that new development does not affect the
present case.
73.
The Working Group welcomes the Government’s invitation to the Working Group to
conduct a visit to Australia in 2025. The Working Group looks forward to carrying out the
visit since it is an opportunity to engage with the Government constructively and to offer its
assistance in addressing concerns relating to instances of arbitrary deprivation of liberty.
20 C. v. Australia; Baban and Baban. v. Australia (CCPR/C/78/D/1014/2001); Shafiq v. Australia
(CCPR/C/88/D/1324/2004); Shams et al. v. Australia (CCPR/C/90/D/1255/2004, 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).
21 Ibid.
22 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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3.
Disposition
74.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Peter Iruviere Mills, 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.
75.
The Working Group requests the Government of Australia to take the steps necessary
to remedy the situation of Mr. Mills 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.
76.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Peter Iruviere Mills immediately and accord
him an enforceable right to compensation and other reparations, in accordance with
international law.
77.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Mills and to take appropriate measures against those responsible for the violation of his
rights.
78.
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.
79.
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.
80.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
81.
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. Mills has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Mills;
(c)
Whether an investigation has been conducted into the violation of Mr. Mills’
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.
82.
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.
83.
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.
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84.
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.23
[Adopted on 13 November 2023]
23 Human Rights Council resolution 51/8, paras. 6 and 9.