A/HRC/WGAD/2023/71

GE.23-24714(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. 71/2023 concerning Gema Chol and Zackaria Chol

(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 5 July 2023 the Working Group

transmitted to the Government of Australia a communication concerning Gema Chol and

Zackaria Chol. The Government submitted a late response on 12 October 2023. The State is

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/2023/71

General Assembly

Distr.: General

18 December 2023

Original: English

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Submissions

Communication from the source

4.

Gema Chol, born on 15 December 1986 in Khartoum, is of South Sudanese

nationality. He is an elder brother of Zackaria Chol.

5.

Zackaria Chol, born on 7 May 1990 in Khartoum, is of South Sudanese nationality.2

He is a younger brother of Gema Chol.

6.

According to the source, both Gema Chol and Zackaria Chol are of Dinka ethnicity.

Their father was killed during the civil war that took place in the Sudan when they were

children.

7.

On 22 October 2003, the brothers arrived in Australia with their mother and three

siblings on refugee and humanitarian visas. At that time, Gema Chol was 16 years old and

Zacharia Chol was 13 years old.

8.

Gema Chol first came to the attention of the police in 2005. In 2010, he was placed

on remand. Since that date he has either been in prison or in administrative detention.

9.

Zackaria Chol first came to the attention of the police in 2007. He was on remand or

imprisoned between 2010 and January 2014. Following a short period in the community, he

was imprisoned from September 2014 and was administratively detained from 23 June 2015.

10.

Gema Chol’s offences include three counts of assaulting the police. Zackaria Chol has

been charged with a number of offences involving resisting police and assaulting the police.

Both brothers are currently administratively detained.

(i)

Gema Chol’s immigration history

11.

On 23 October 2014, the Minister of Home Affairs cancelled Gema Chol’s refugee

and humanitarian visa, following his conviction for aggravated assault, causing harm with

intent to cause harm. Mr. Chol was sentenced to a prison term of four years and four weeks.

On or about 23 October 2015, Mr. Chol was released from prison and was immediately held

on administrative detainment under section 189 of the Migration Act 1958, which stipulates

that a non-citizen without a visa must be detained. At the moment of his detention, the

authorities showed Mr. Chol the decision to administratively detain him.

12.

Mr. Chol submitted an appeal regarding the cancellation of his refugee and

humanitarian visa to the Federal Court of Australia. On 6 July 2014, the Court dismissed

Mr. Chol’s application. Mr. Chol appealed the Court’s decision to the full Federal Court of

Australia. On 17 August 2016, the full Federal Court dismissed Mr. Chol’s appeal.

13.

On 20 October 2016, Mr. Chol applied for a protection visa. On 9 October 2017, a

delegate of the Minister of Home Affairs found that, while Mr. Chol was owed protection

obligations, he was excluded from being considered for a protection visa because of his

criminal record. Mr. Chol appealed the delegate’s decision to the Administrative Appeals

Tribunal for merits review. On 25 May 2018, the Tribunal affirmed the delegate’s decision.3

Mr. Chol has no ongoing migration matters and faces indefinite detention or constructive

refoulement. He is currently being held at the Melbourne Immigration Transit

Accommodation, Broadmeadows.

(ii)

Zackaria Chol’s immigration history

14.

On 23 June 2015, the Minister of Home Affairs cancelled Zackaria Chol’s refugee

and humanitarian visa, following his conviction for aggravated assault, causing harm with

intent to cause harm (relating to the same incident as his brother was convicted of). Mr. Chol

was sentenced to a prison sentence of 2 years and 50 weeks, with a non-parole period of 18

months.

2 The Australian Government uses the Sudan and South Sudan interchangeably in the Chol brothers’

records.

3 YLHG v. Minister for Immigration and Border Protection [2018] ATTA 1454.

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15.

On or about 23 June 2015, Mr. Chol was released from prison and administratively

detained. Under section 189 of the Migration Act 1958, a non-citizen without a visa must be

detained. At the moment of his detention, authorities showed Mr. Chol the decision to

administratively detain him.

16.

On 21 February 2017, Mr. Chol applied for a protection visa. On 9 October 2017, a

delegate of the Minister for Home Affairs found that while he was owed protection

obligations, he was not eligible for a protection visa because of his criminal record. Mr. Chol

appealed the delegate’s decision to the Administrative Appeals Tribunal for merits review.

17.

On 12 February 2019, the Administrative Appeals Tribunal affirmed the delegate’s

decision. Mr. Chol appealed the Tribunal’s decision to the Federal Court of Australia. On 10

March 2020, the Federal Court refused his application for an extension of the time period for

his appeal and the matter was dismissed.4 Mr. Chol has no ongoing migration matters and

faces indefinite detention or constructive refoulement. Mr. Chol is currently held at the

Yongah Hill Immigration Detention Centre, in Burlong.

18.

The source maintains that under Australian law, the indefinite detention of a refugee

is permitted. Section 189 of the Migration Act 1958 provides for the mandatory detention of

non-citizens without a visa. Case law5 provides that non-citizens can be detained for any

purpose, no purpose or an incorrect purpose. Further, it provides that non-citizens can be

detained even if their removal from Australia is not reasonably practicable. There is no

statutory or other time limit on the length of time non-citizens can be detained. In the

particular circumstances of Gema Chol and Zacharia Chol, there is no domestic legal avenue

available to challenge their administrative detention.

19.

The source further notes that while the Department of Home Affairs has an internal

detention review body that meets monthly, it is not an independent body and has no power

to order the release of a detainee. The Commonwealth Ombudsman reviews the

administrative detention of individuals who have been detained for more than two years. The

Ombudsman, however, has no power to order the release of a detainee. While the

Ombudsman makes recommendations to the Department of Home Affairs and the Minister

for Home Affairs, those recommendations are not enforceable and are, according to the

source, often ignored by the Department and the Minister.

20.

The source asserts that it would be impossible to return Gema Chol and Zackaria Chol

to South Sudan without their return constituting refoulement. Further, if either Gema Chol or

Zackaria Chol voluntarily request to return to South Sudan, such an action would constitute

constructive refoulement because the only reason they would request return would be because

of their indefinite detention in Australia. The source recalls that refoulement and constructive

refoulement are both unlawful under international law and that refoulement is also unlawful

under Australian law.

21.

The source further notes that both brothers have suffered multiple instances of racial

discrimination and faced difficulties on arriving in Australia as teenagers, as evidenced in

their various tribunal and court proceedings. Their difficult childhoods in Sudan, which

involved experiences of family dislocation, violence, racism and persecution, as well as the

difficulty of settling in Australia, have contributed to the abuse of drugs and alcohol by the

two brothers. Both brothers are reportedly suffering from adjustment disorder, including a

mixture of depression and disturbed behaviours. There is, however, no evidence of a

trauma-informed approach being used by the Department of Home Affairs to determine if

closed detention is suitable for the brothers.

(iii)

Legal analysis

22.

The source submits that the continuing administrative detention of Gema Chol and

Zackaria Chol is arbitrary and falls under categories I, II, III, IV and V of the Working Group.

4 RWDX v. Minister for Immigration and Border Protection [2020] FCA 391.

5 Al-Kateb v. Godwin [2004] HCA 37; and Commonwealth of Australia v. AJL20 [2021] HCA 21.

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i.

Category I

23.

The source recalls that the basis for the deprivation of liberty of Gema Chol and

Zackaria Chol is sections 189, 196 and 198 of the Migration Act 1958. Under the Act,

unlawful non-citizens (including those who arrived with valid visas and then had such visas

cancelled), such as the Chol brothers, must be detained and kept in immigration detention

until one of the following events takes place: removal from Australia under sections 198 or

199 of the Act; deportation under section 200 of the Act; or the granting of a visa. Detention

is mandatory and the only relevant consideration in deciding whether to detain individuals is

whether they are non-citizens and whether they hold valid visas. As such, discretionary

considerations such as a person’s gender, age, race, mental or physical health are not

considered prior to such individuals being detained.

24.

The source further recalls that in cases when people who are administratively detained

have challenged the legal basis of their detention under the Migration Act 1958 the

Government has routinely responded by asserting that deprivation of liberty for an indefinite

period is legal because it is authorized under Australian law. The legality of such a practice

has been confirmed by the High Court of Australia.6

25.

In that regard, the source refers to general comment No 31 (2004) of the Human Rights

Committee, which crystallizes the principle that a State cannot plead, in mitigation of its

responsibilities under the Covenant, that its laws prohibit it from fulfilling its international

obligations. Several opinions of the Working Group have also addressed the same issue.7

ii.

Category II

26.

The source argues that the deprivation of liberty of Gema Chol and Zackaria Chol is

a result of the exercise of their 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.

27.

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 the Chol brothers

is discriminatory as their detention is only specific to a particular group in the community,

that is, being unlawful non-citizens without visas. 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 the Chol brothers, 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

1958 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”. Further, the source

recalls that the Chol brothers have been placed in separate detention centres, thousands of

kilometres apart and are unable to visit each other or other family members.

28.

The source further notes, in relation to article 14 of the Universal Declaration of

Human Rights, that the Chol brothers arrived in Australia on refugee and humanitarian visas,

in recognition of their need for protection. On the cancellation of their original visas, the

brothers applied for protection visas. While both were recognized as being owed protection

obligations, they were excluded from consideration for protection visas under section 36 (1C)

of the Migration Act 1958 because the Department of Home Affairs was satisfied, on

reasonable grounds, that the brothers, having been convicted of particularly serious crimes,

are dangers to the Australian community. But for the cancellation of their refugee and

humanitarian visas and the refusal to grant them protection visas, the Chol brothers would

not be held in administrative detention.

29.

Further, in relation to article 12 of the Covenant, the source recalls general comment

No. 27 (1999) of the Human Rights Committee, which provides that “the question of whether

an alien is ‘lawfully’ within the territory of a State is a matter governed by domestic law,

6 Al-Kateb v. Godwin (2004) 219 CLR 562; and Commonwealth of Australia v. AJL20 [2021] HCA 21.

7 See opinions 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 and No. 69/2021.

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which may subject the entry of an alien to the State to restrictions, provided they are in

compliance with the State’s international obligations”.8

30.

According to the source, the Chol brothers went to Australia seeking their right to

asylum and to avoid being returned to a place where they feared persecution (including death

and torture), as guaranteed under articles 3, 5, 13 (1) and 14 of the Universal Declaration of

Human Rights and article 7 of the Covenant. However, the Chol brothers are presently

detained under section 196 (1) of the Migration Act 1958.

31.

The source recalls that, in 2004, the High Court of Australia ruled at 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 of 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 a case such as the present, the purpose of determining whether to permit a

valid application for a visa”.9 The source notes that the Chol brothers are not being detained

for any of those reasons, as they cannot be removed to South Sudan (and there are no

processes to remove them elsewhere) and they are unable to apply for any visa under sections

48A and 501E of the Migration Act 1958.

32.

Further, in relation to articles 2 (1), 3 and 26 of the Covenant, the source argues that

the very nature of the continued detention of the Chol brothers is discriminatory as their

detention is only specific to a particular group in the community, that is, unlawful

non-citizens without visas.

33.

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 which is based on any ground such as race, colour, sex, language,

religion, political or other opinion, national or social origin, property, birth or other status,

and which has the purpose of nullifying or impairing the recognition, enjoyment or exercise

by all persons, on an equal footing, of all rights and freedom.10

34.

The broad terms of the words “any discrimination” in article 26 of the Covenant

indicates that the provision also captures multiple and intersectional discrimination. It is

argued that the Chol brothers have been discriminated against on the following intersecting

grounds, which are prohibited by the Covenant, their designation as “unlawful non-citizens”,

as that term is informed by their national origin, and their designation as people needing

protection (asylum-seekers).

35.

These contentions do not undermine the long-standing jurisprudence of the Human

Rights Committee that “a differentiation based on reasonable and objective criteria does not

amount to a prohibited discrimination within the meaning of article 26” because it cannot be

said that the discriminatory treatment of the Chol brothers is reasonable under circumstances

where such discrimination has the practical effect of committing an individual to an indefinite

period of administrative detention (which is, presently, over approximately seven years for

the Chol brothers). As a matter of international jurisprudence, such logic follows from the

requirement that a difference of treatment in the exercise of a right must not only pursue a

legitimate aim, there must also be a reasonable relationship of proportionality between the

means employed and the aim sought to be realized. The legitimate aim of detention has been

represented in different ways by the Government on previous occasions, including: the

prevention of unlawful non-citizens from entering the community after travelling to Australia

by irregular means; ensuring the integrity of Australia’s migration programme; and assessing

the identity and security risk of unlawful non-citizens. The source notes that it remains

unclear, however, how detention without a fixed endpoint in time is proportional to any of

those aims, in particular when some of those aims cannot be considered as ongoing and where

the stated aims can readily be achieved through non-invasive and cheaper alternatives, such

8 Human Rights Committee, general comment No. 27 (1999), para. 4.

9 Plaintiff S4/2014 v. Minister for Immigration and Border Protection [2014] HCA 34, para. 26.

10 Human Rights Committee, general comment No. 18 (1989), para. 7.

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as requiring individuals to reside in a particular place within the community or imposing

reporting or surety requirements as a condition of remaining in Australia.

iii.

Category III

36.

The source submits that the right of the Chol brothers to a fair trial with respect to

their detention has not been observed. Although the Government has regularly argued that

unlawful non-citizens are afforded effective review by the Commonwealth Ombudsman and

the Case Management and 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.

37.

It is submitted that any purported effectiveness of these two review mechanisms is

illusory because the Commonwealth Ombudsman has no power to compel the Department

of Home Affairs to release a person from immigration detention and the Case Management

and Detention Review Committee is not a judicial body and therefore falls short of the

requirements of article 9 (4) of the Covenant. The Committee is also an internal departmental

body, and thus not independent.

iv.

Category IV

38.

The source submits that Gema Chol and Zackaria Chol are currently deprived of any

adequate remedy that could bring their detention to an end.

39.

In this regard, the source recalls the case of Mr. C. v. Australia,11 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”. This means that unlawful

non-citizens are not afforded an opportunity to seek judicial intervention on a substantive

level, focused on determining whether continued detention is justified or not.

40.

Further, in a decision of 2021, 12 the High Court of Australia confirmed that, in

circumstances where Australia is under a statutory obligation to remove an individual from

its territory as soon as practicable and is dilatory in performing that duty, a writ of habeas

corpus, which would ordinarily command the release of the individual from detention, would

not be an appropriate remedy. Instead, the High Court ruled that the appropriate remedy in

the first instance is to issue a writ of mandamus, which compels the Government to perform

its statutory obligation to remove the individual as soon as practicable. Further, a failure to

perform its statutory obligation does not render the detention of an individual unlawful. The

source notes that the ruling of the High Court is at odds with international jurisprudence,

which considers the right of habeas corpus as existing regardless of whether deprivation of

liberty is unlawful.

v.

Category V

41.

Finally, the source reiterates the discriminatory nature of the ongoing administrative

detention of Gema Chol and Zackaria Chol.

Response from the Government

42.

On 5 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 4 September 2023, detailed information about the situation of

Gema Chol and Zackaria Chol and to clarify the legal provisions justifying their 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.

43.

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.

11 See Mr. C. v. Australia (CCPR/C/76/D/900/1999).

12 Commonwealth v. AJL20 [2021] HCA 21.

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44.

The Government submitted its response on 12 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.

Discussion

45.

In the absence of a timely response from the Government, as indicated in paragraphs

15 and 16 of its methods of work, and in conformity with its practice, the Working Group

considered all the relevant information that it has obtained in order to render its opinion.

46.

In determining whether the deprivation of liberty of Gema Chol and Zackaria Chol 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.13 Mere assertions by the

Government that lawful procedures have been followed are not sufficient to rebut the

source’s allegations. 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.

Category I

47.

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 1958.14

48.

The Working Group reiterates its views on the Migration Act 1958.15

49.

The Working Group furthermore reiterates its alarm that, in all such cases, the

Government has argued that the detention is lawful purely because it follows the stipulations

of the Migration Act 1958. The Working Group once again wishes to clarify that such

arguments can never be accepted as legitimate under international human rights law. The fact

that a State is following its own domestic legislation does not, in itself, prove that the

legislation conforms with the obligations that the State has undertaken under international

human rights law. No State can legitimately avoid its obligations under international human

rights law by citing its domestic laws and regulations.

50.

The Working Group again emphasizes that it is the duty of the Government to bring

its national legislation, including the Migration Act 1958, 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,16 the Committee on Economic, Social and Cultural

Rights, 17 the Committee on the Elimination of Discrimination against Women, 18 the

Committee on the Elimination of Racial Discrimination,19 the Special Rapporteur on the

human rights of migrants20 and the Working Group.21 The Working Group calls upon the

Government to urgently review the Migration Act in the light of its obligations under

international human rights law.

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

14 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. 69/2022, No. 14/2023 and No. 15/2023 and No. 44/2023.

15 Opinion No. 35/2020, paras. 98–103.

16 CCPR/C/AUS/CO/6, paras. 33–38.

17 E/C.12/AUS/CO/5, paras. 17–18.

18 CEDAW/C/AUS/CO/8, paras. 53–54.

19 CERD/C/AUS/CO/18-20, paras. 29–33.

20 A/HRC/35/25/Add.3, paras. 36–44.

21 See, inter alia, 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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51.

Noting the present and other numerous occasions on which the Working Group and

other United Nations human rights bodies and mechanisms have alerted the Government of

Australia to the affront to its obligations under international human rights law posed by the

Migration Act 1958, and noting the failure of the Government to take any action, the Working

Group concludes that the detention of Gema Chol and Zackaria Chol under the said

legislation is arbitrary under category I as it violates article 9 (1) of the Covenant. Domestic

law that violates international human rights law, and which has been brought to the attention

of the Government on so many occasions, cannot be accepted as a valid legal basis for

detention, especially in the light of the findings below.

Category II

52.

The Working Group observes that Gema Chol and Zackaria Chol arrived in Australia

in 2003, allegedly aged 16 years old and 13 years old, respectively.

53.

Upon a cessation of their criminal convictions, as of 23 October 2015 for Gema Chol,

and on several occasions for Zackaria Chol (between 1 July 2015 and 29 November 2017,

between 28 July 2018 and an unspecified date and, lastly, as of 18 July 2022), they became

irregular migrants and as of the stated dates have been held in immigration detention.

54.

Notwithstanding the views and findings of the Working Group regarding the

Migration Act 1958 and its compatibility with the obligations of Australia under international

human rights law, the Working Group observes that it is not disputed that Gema Chol and

Zackaria Chol remain in detention today on the basis of that Act. The source argues that they

are detained in violation of the Covenant and the Universal Declaration of Human Rights.

55.

Given a lack of any indication as to when their detention might end, the Working

Group is bound to conclude that their detention appears to be indefinite.

56.

As the Working Group has explained in its revised deliberation on deprivation of

liberty of migrants, 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.22 This echoes the views of the Human Rights

Committee, which stated, in paragraph 18 of its general comment No. 35 (2014), that

asylum-seekers who unlawfully enter a State party’s territory may be detained for a brief

initial period in order to document their entry, record their claims and determine their identity,

if it is in doubt. To detain them further while their claims are being resolved, in the absence

of particular reasons specific to the individual, such as an individualized likelihood of

absconding, a danger of the commission of crimes against others or a risk of acts against

national security, would be arbitrary.

57.

The Working Group cannot accept that detention for over eight years, in the case of

Gema Chol, and at least three years, cumulatively, in the case of Zackaria Chol, could be

characterized as a “brief initial period”, to use the language of the Human Rights Committee.

The Working Group concludes that there is no reason for detaining the brothers other than

their migration status.

58.

The Working Group thus finds that Gema Chol and Zackaria Chol were detained as a

result of the exercise of their legitimate rights under article 14 of the Universal Declaration

of Human Rights. The Working Group again emphasizes that the Human Rights Committee,

in its general comment No. 15 (1986), quoted by the Government in its late reply, 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”.23

59.

Both Gema Chol and Zackaria Chol are therefore entitled to the right to liberty and

security of person, as guaranteed in article 9 of the Covenant, and, when guaranteeing those

rights to them, Australia must ensure that it is done without distinction of any kind, as

required by article 2 of the Covenant. The brothers have been subjected to de facto indefinite

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

23 Human Rights Committee, general comment No. 15 (1986), paras. 2 and 7.

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detention owing to their immigration status, in clear breach of articles 2 and 9 of the

Covenant.

60.

Noting that Gema Chol and Zackaria Chol have been detained, in violation of the

legitimate exercise of their rights under article 14 of the Universal Declaration of Human

Rights and articles 2 and 9 of the Covenant, the Working Group finds their detention to be

arbitrary, falling under category II. The Working Group refers the present case to the Special

Rapporteur on the human rights of migrants, for appropriate action.

Category IV

61.

The source further argues, both under categories III and IV, that Gema Chol and

Zackaria Chol have been subjected to administrative detention without remedy. The Working

Group finds it appropriate to examine only the latter category. In a recent case,24 the Working

Group examined that issue 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,25

which, as it highlighted by the Working Group in its revised deliberation on deprivation of

liberty of migrants, should never be the case26 and which is in breach of article 9 of the

Covenant.

62.

Nothing in the present case would allow the Working Group to reach a different

conclusion.

63.

Consequently, the Working Group finds that Gema Chol and Zackaria Chol have been

subjected to de facto indefinite detention owing to their migratory status without the

possibility of challenging the legality of such detention before a judicial body, a right

encapsulated in article 9 (4) of the Covenant. Their detention is therefore arbitrary, falling

under category IV. In making this finding, the Working Group also recalls the numerous

findings by the Human Rights Committee in which the application of mandatory immigration

detention in Australia and the impossibility of challenging such detention have been found

to be in breach of article 9 of the Covenant.27 While the situation appears to have been

changed recently (see para. 67 below), the change does not negate the above conclusion in

respect of Gema Chol and Zackaria Chol.

Category V

64.

The source argues that Gema Chol and Zackaria Chol, as non-citizens, appear to be in

a different situation from Australian citizens in relation to their ability to effectively challenge

the legality of their detention before the domestic courts and tribunals owing to the effective

result of the decision of the High Court in the case of Al-Kateb v. Godwin. According to that

decision, while Australian citizens can challenge administrative detention, non-citizens

cannot.

65.

The Working Group has examined those arguments on numerous occasions. It has

repeatedly noted that the Government has failed to explain how non-citizens can effectively

challenge their continued detention after the adoption of the decision of the High Court in the

case of Al-Kateb v. Godwin. The Government must explain how non-citizens can effectively

challenge their continued detention in order to comply with articles 9 and 26 of the Covenant.

To that end, the Working Group once again specifically recalls the consistent jurisprudence

of the Human Rights Committee, in which it examined the implications of the High Court’s

judgment in the case of Al-Kateb v. Godwin and concluded that its effects were such that

24 See A/HRC/WGAD/2023/14.

25 Ibid., para. 86.

26 A/HRC/39/45, annex, paras. 9 and 14. See also opinion No. 49/2020, para. 87.

27 See C. v. Australia (CCPR/C/76/D/900/1999); Baban and Baban v. Australia

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

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

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

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

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

A/HRC/WGAD/2023/71

10

GE.23-24714

there was no effective remedy to challenge the legality of continued administrative

detention.28

66.

As in the past, the Working Group once again concurs with the views of the Human

Rights Committee on this matter,29 and it maintains the same position in the present case. The

Working Group underlines that this situation is discriminatory and contrary to article 26 of

the Covenant. It therefore concludes that the detention of Gema Chol and Zackaria Chol is

arbitrary, falling under category V.

Concluding remarks

67.

The Working Group notes that, according to the media, in a judgment of 8 November

2023, in a case brought by a person referred to as NZYQ (which remained unpublished at the

time of the writing of the present opinion), the High Court overruled its decision in the case

of Al-Kateb v. Godwin.  The Working Group welcomes this long-awaited change in

jurisprudence, which it will have a chance to examine in future. It notes, however, that this

new development does not affect the present case.

68.

The Working Group welcomes the Government’s invitation of 14 November 2023 for

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 for constructive engagement with the

Government and for the Working Group to offer its assistance in addressing concerns relating

to instances of arbitrary deprivation of liberty.

Disposition

69.

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

The deprivation of liberty of Gema Chol and Zackaria Chol, 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.

70.

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

to remedy the situation of Gema Chol and Zackaria Chol without delay and to 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.

71.

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

case, the appropriate remedy would be to release Gema Chol and Zackaria Chol immediately

and accord them an enforceable right to compensation and other reparations, in accordance

with international law.

72.

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

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Gema

Chol and Zackaria Chol and to take appropriate measures against those responsible for the

violation of their rights.

73.

The Working Group requests the Government to bring its laws, particularly the

Migration Act 1958, into conformity with the recommendations made in the present opinion

and with the commitments made by Australia under international human rights law.

74.

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.

75.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

28 Ibid.

29 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.

A/HRC/WGAD/2023/71

GE.23-24714

11

Follow-up procedure

76.

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 Gema Chol and Zackaria Chol have been released and, if so, on what

date;

(b)

Whether compensation or other reparations have been made to them;

(c)

Whether an investigation has been conducted into the violation of their 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.

77.

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.

78.

The Working Group requests the source and the Government to provide the

above-mentioned information within six months of the date of transmission of the present

opinion. However, the Working Group reserves the right to take its own action in follow-up

to the opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

79.

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.30

[Adopted on 15 November 2023]

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