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.24-07154 (E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-ninth session, 18–27 March 2024
Opinion No. 23/2024 concerning Wajid 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 24 October 2023 the Working Group
transmitted to the Government of Australia a communication concerning Wajid Ali. The
Government submitted a late response on 25 January 2024. 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).
* Miriam Estrada Castillo did not participate in the discussion of the present case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/23
General Assembly
Distr.: General
2 May 2024
Original: English
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1.
Submissions
(a)
Communication from the source
(i)
Background
4.
Wajid Ali is believed to have been born on 20 March 1987 (also recorded as 1 August
1988 and 14 February 1992). Mr. Ali is an ethnic Pashtun from Pakistan who practises the
Shia Muslim faith.
5.
The source reports that, on 19 June 2012, Mr. Ali arrived in Australia by boat, fleeing
persecution by the Taliban in Pakistan. Upon arrival, he was administratively detained by the
authorities under section 189 (1) of the Migration Act of 1958. Mr. Ali was held at the North
West Point Immigration Detention Centre on Christmas Island. Mr. Ali promptly sought
asylum in Australia on the ground of being subject to persecution by the Taliban.
6.
On 25 October 2012, Mr. Ali was granted a six-month Bridging E (Class WE) visa
and released into the community. On 1 February 2013, Mr. Ali was granted a further
Bridging E (Class WE) visa.
7.
On 9 September 2013, Mr. Ali was arrested and charged with indecent treatment of a
child under 16 years of age, contrary to section 210 (1) (a) of the Criminal Code Act 1899 of
Queensland, and common-law assault but was immediately released on bail. He spent two
weeks in the community on bail and did not reoffend during this time.
8.
On 10 April 2014, Mr. Ali’s bridging visa was cancelled, with effect from 11 April
2014, in accordance with section 116 of the Migration Act and regulation 2.43 of the
Migration Regulations 1994. The source explains that this cancellation was prompted by
Mr. Ali being charged with a criminal offence.
9.
Following the cancellation of the bridging visa, Mr. Ali was rendered an “unlawful
non-citizen” pursuant to sections 13 and 14 of the Migration Act. Under section 189 of the
same Act, he became liable to mandatory detention. On or around 11 April 2014, Mr. Ali
was detained by the authorities. He has since been in indefinite immigration detention,
without any prospect of release.
10.
The source recalls that Mr. Ali remains in administrative immigration detention,
despite having been recognized as being owed a protection obligation on or around
19–24 September 2014. On 27 September 2013, Mr. Ali’s protection visa application was
refused on character grounds under section 501 (6) (e) (i) of the Migration Act, a decision
that is subject to an ongoing review process. This process relates to Mr. Ali’s protection visa
and not specifically to Mr. Ali’s detention.
11.
On 25 June 2016, a conviction was recorded against Mr. Ali by the District Court of
Queensland, Ipswich, for indecent treatment of child under 16 years of age, contrary to
section 210 (1) (a) of the Criminal Code Act of Queensland. Mr. Ali was not given a sentence
of imprisonment; rather, he received a one-year good behaviour bond and a fine amounting
to $A 200. This sentence, notes the source, was on the lower end of those available for the
offence. By the time of Mr. Ali’s sentencing, he had already been in administrative detention
for 13 months.
12.
On 12 December 2016, the Minister for Immigration and Border Protection exercised
his personal discretion under section 501 (1) of the Migration Act to refuse Mr. Ali a
Temporary Protection (Class XD) visa, giving as the reason, inter alia, the fact that Mr. Ali
did not pass the character test due to his criminal conviction.
13.
On 16 December 2016, Mr. Ali appealed his criminal conviction of 25 June 2016. His
appeal was dismissed.
14.
On 16 May 2017, the Federal Court of Australia handed down a judgment for judicial
review of the ministerial decision of 12 December 2016 to refuse Mr. Ali a Temporary
Protection (Class XD) visa. The decision was quashed and the matter remitted to the
Department of Home Affairs for reconsideration.
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15.
On 7 December 2018, Mr. Ali’s application for a protection visa under section 501 (1)
of the Migration Act was refused again. On 21 December 2018, Mr. Ali made an application
with the Administrative Appeals Tribunal for a merits review of that refusal decision. On
8 March 2019, the Administrative Appeals Tribunal decided to affirm the refusal decision.
16.
On 13 August 2019, the Court heard Mr. Ali’s application for judicial review of the
decision of the Administrative Appeals Tribunal to affirm the decision to refuse a visa to
Mr. Ali. On 4 October 2019, Mr. Ali’s appeal was dismissed.
17.
On 21 May 2021, a hearing was held before the Federal Circuit and Family Court.
The Court heard Mr. Ali’s appeal against the 4 October 2019 judgment.
18.
On 20 September 2021, the Federal Circuit and Family Court made an order to allow
Mr. Ali’s appeal and have the matter remitted to the Administrative Appeals Tribunal for
reconsideration.
19.
On 28 November 2022, the Administrative Appeals Tribunal reconsidered the refusal
decision and again decided to affirm it. On 31 December 2022, Mr. Ali lodged an originating
application with the Federal Court of Australia, seeking judicial review of that decision of
the Administrative Appeals Tribunal. Mr. Ali is currently undertaking these proceedings.
20.
The source explains that the refusal of Mr. Ali’s application for a Temporary
Protection (Class XD) visa means that he will be prevented by section 501E of the Migration
Act from making an application for another visa and will be prevented by section 48A of the
same Act from making a further application for a protection visa. Without a visa, Mr. Ali is
an unlawful non-citizen and, pursuant to sections 189 and 196 of the Migration Act, must be
detained until his immigration status has been resolved.
21.
According to the source, in accordance with the non-refoulement obligations of
Australia, Mr. Ali cannot be returned to Pakistan. Consequently, the only foreseeable legal
outcome is that of Mr. Ali remaining in immigration detention for an indefinite period.
22.
The source notes that, through medical evaluations, Mr. Ali was found to be of low
likelihood to reoffend. According to a forensic psychological and neuropsychological
assessment dated 10 November 2022, Mr. Ali was rated as having a moderate to low risk – a
likelihood of between 5.8 per cent and 7.2 per cent – of reoffending.
23.
The source emphasizes that Mr. Ali received the criminal sentence of a one-year good
behaviour bond but has already spent a period of almost two thirds of the maximum criminal
sentence for the offence of which he was convicted (14 years) in immigration detention.
24.
In May 2015, the International Health and Medical Services, the organization that
provides health care to detainees, identified Mr. Ali as vulnerable due to his criminal history
and as at a high risk of being assaulted by other detainees.
25.
In or around June 2016, the Commonwealth Ombudsman provided a report regarding
the ongoing immigration detention of Mr. Ali. The Ombudsman recommended that priority
be given to exploring options to enable the resolution of Mr. Ali’s immigration status. Little
positive action has since been taken by the Minister for Immigration and Border Protection
to address the recommendations contained in the Ombudsman’s report.
26.
According to the source, during his time in detention, Mr. Ali suffered a significant
physical injury and did not receive sufficient timely medical treatment, despite expert
recommendations, and is at risk of permanent hearing loss.
27.
The source details that, on 9 January 2021, Mr. Ali was allegedly assaulted by an
officer who hit him on the head with a plastic shield, causing him to fall to the ground, during
a riot at the North West Point Immigration Detention Centre on Christmas Island.
28.
According to the source, there has also been a failure by the authorities to adequately
investigate claims of sexual assault, in particular three incidents that allegedly occurred in
2016, 2017 and 2021, in relation to which Mr. Ali lodged formal complaints of having been
indecently touched while being restrained by the Emergency Response Team of the
Department of Home Affairs.
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29.
Mr. Ali’s mental health has been severely compromised in detention, and he has
symptoms such as low mood, sleeping for up to 22 hours at a time and, at times, a loss of
faith.
30.
Mr. Ali denies any history of head injuries, concussion, epilepsy or other neurological
disorders and any history of psychiatric illness prior to his detention, indicating that his
mental and physical symptoms developed solely as a result of his treatment and conditions
in detention, as well as the arbitrary nature and indefinite length of his detention. It was
acknowledged in expert reports and court reports that continued and indefinite immigration
detention was detrimental to Mr. Ali’s recovery from his mental health issues.
31.
In this context, the source recalls revised deliberation No. 5 of the Working Group on
Arbitrary Detention, in which the Working Group stated that 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.2
32.
The source submits that Mr. Ali’s poor treatment and lack of care while in detention
and its resulting harm should be seen as, at a minimum, ill-treatment and a breach of the
Commonwealth’s duty of care. It recalls that physical or mental conduct not meeting the
threshold of torture may be regarded as cruel, inhuman or degrading treatment or punishment
and would be prohibited under article 16 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment and article 7 of the Covenant.
(ii)
Legal Analysis
33.
The source submits that the continued deprivation of liberty of Mr. Ali is arbitrary and
falls under categories I, II, III, IV and V of the arbitrary detention categories referred to by
the Working Group when considering cases submitted to it.
a.
Category I
34.
In relation to category I, the source recalls that the basis for Mr. Ali’s deprivation of
liberty is section 189 (1) of the Migration Act and judicial precedent. Under statute, the
pressing of criminal charges against a bridging visa holder constitutes a prescribed ground
for cancellation under section 116 of the Migration Act and regulation 2.43 (1) (p) (ii) of the
Migration Regulations.
35.
Following the filing of criminal charges, Mr. Ali’s bridging visa was cancelled, on
10 April 2014. The cancellation made Mr. Ali an “unlawful non-citizen” pursuant to
section 14 of the Migration Act and liable to be detained under section 189 (1) of the
Migration Act.
36.
Classification as an unlawful non-citizen under sections 13 and 14 of the Migration
Act is the only component necessary for detention. Under common law, the High Court of
Australia, in Al-Kateb v. Godwin, has held that the detention of non-citizens pursuant to, inter
alia, section 189 of the Migration Act does not contravene the Constitution of Australia.
37.
The Working Group has previously held that no State can legitimately evade its
obligations under international human rights law by citing its domestic laws and regulations
and that indefinite detention cannot be considered to be lawful purely because it follows the
stipulations of the Migration Act.3 The Working Group has found indefinite detention under
the Migration Act to be arbitrary under category I, as it violates article 9 (1) of the Covenant.
38.
The source submits that the test for whether detention is arbitrary is whether it is
reasonable, necessary and proportionate in the light of the circumstances of each individual
and whether it is reassessed as it extends in time.
39.
While the source acknowledges that Mr. Ali ultimately received a criminal conviction
for a serious offence, it also notes that the criminal justice process has appropriately dealt
with that offence. It is not reasonable, necessary or proportionate for Mr. Ali to be subjected
2 A/HRC/39/45, annex, para. 38.
3 Opinions No. 69/2021, paras. 109 and 110; and No. 35/2020, paras. 98–103.
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to prolonged mandatory detention for an offence that does not relate to his migration status
and that has been dealt with by the criminal courts.
40.
The source argues that the mandatory detention of Mr. Ali began immediately after
he was charged, before any conviction. It was based on mere charges, regardless of their
severity, which breaches a fundamental principle of the Australian common law, namely, the
presumption of innocence. Cancelling a visa prior to the determination of criminal guilt
presupposes that the visa holder is guilty. The Commonwealth Ombudsman has found that
depriving a person of liberty on the basis of an allegation raises the question of whether the
authorities are acting prematurely by cancelling a visa. The reasonability, necessity and
proportionality of Mr. Ali’s detention during the period before his conviction cannot be
assessed if it is imposed without consideration of his factual circumstances.
41.
Furthermore, Mr. Ali has been held in prolonged detention for nine years, which is
significantly longer than the one-year duration of the good behaviour bond that he received.
Even following a conviction, the level of risk that an unlawful non-citizen poses to the
community is only one factor in determining whether detention is reasonable, necessary and
proportionate. The Human Rights Committee has stated that, in circumstances in which a
person is preventatively detained because he or she is feared to be a danger to the community,
the State party should have demonstrated that the rehabilitation could not have been achieved
by means less intrusive than continued imprisonment or even detention, particularly as a
continuing obligation under article 10 (3), as well as under article 9 (1), of the Covenant.
42.
The source reiterates that Mr. Ali’s prolonged detention is also incompatible with the
forensic psychological and neuropsychological assessment dated 10 November 2022. It was
acknowledged in the assessment that Mr. Ali had no prior criminal history either in Australia
or Pakistan.
43.
The source recalls the jurisprudence of the Human Rights Committee, namely, its
Views in Tillman v. Australia and Fardon v. Australia.4 In Tillman v. Australia, notes the
source, the author had received a conviction for sexual offences and had served his 10-year
term of imprisonment in full, yet remained in detention beyond the term of his sentence and
then continued to be held following a continuing detention order. In Fardon v. Australia, the
author was sentenced to 14 years’ imprisonment. After his sentence expired, on 30 June 2003,
he was made the subject of a continuing detention order, which was rescinded on 4 December
2006. Both claimants argued that their post-sentence detention was incompatible with their
rights under the Covenant, specifically, the prohibition of arbitrary detention under
article 9 (1). In both cases, the Committee found that continued detention amounted, in
substance, to a fresh term of imprisonment, which is not permissible in the absence of a
conviction for which imprisonment is a sentence prescribed by law.
44.
In this regard, the source observes that Mr. Ali received a criminal conviction and a
one-year good behaviour bond but has now spent nine years in immigration detention.
Mr. Ali’s detention was prompted by his criminal conviction, but his ongoing immigration
detention, which goes well beyond the terms of his criminal sentence, amounts to a fresh term
of imprisonment, which is incompatible with the prohibition of arbitrary detention under
article 9 (1) of the Covenant.
45.
The resolution of Mr. Ali’s immigration status is not a sufficient reason to hold him
in indefinite detention, argues the source. In A v. Australia, Shams et al. v. Australia and
Kwok v. Australia,5 the Human Rights Committee deemed that four years in detention while
awaiting the resolution of immigration status or consideration of deportation was arbitrary
and a violation of article 9 of the Covenant. The ongoing de facto and mandatory detention
of Mr. Ali can be considered arbitrary because it is not reasonable or proportionate to
resolving his immigration status.
46.
Mr. Ali has been found to be a person in respect of whom Australia has international
protection obligations, as he faces a real chance of persecution involving serious harm for
4 CCPR/C/98/D/1635/2007 and CCPR/C/98/D/1629/2007.
5 CCPR/C/59/D/560/1993; CCPR/C/90/D/1255/2004, 1256/2004, 1259/2004, 1260/2004, 1266/2004,
1268/2004, 1270/2004 and 1288/2004; and CCPR/C/97/D/1442/2005.
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reasons of religion. In these circumstances, Australia is prevented from removing Mr. Ali to
his country of origin. At the same time, Mr. Ali does not hold a valid visa. Given that
Australia will not return a person to his or her country of origin if to do so would be
inconsistent with its international non-refoulement obligations, the operation of sections 189
and 196 of the Migration Act produces a situation in which, if Mr. Ali’s protection visa
application is refused, he cannot legally reside in Australia but cannot be deported to
Pakistan. The legal consequence is indefinite detention.
47.
The source recalls that the Working Group has previously expressed the view that the
indefinite detention of individuals in the course of migration proceedings cannot be justified
and is arbitrary.6 The Working Group has also recognized that, where the obstacle to the
removal of persons in an irregular situation from the territory is not attributable to them,
including the principle of non-refoulement, indefinite detention could be arbitrary.7 Mr. Ali’s
prolonged detention is neither reasonable nor proportionate. The deprivation of liberty of
Mr. Ali is 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 Covenant and is therefore arbitrary.
b.
Category II
48.
In relation to category II, the source submits that Mr. Ali has been deprived of liberty
for exercising his right under article 14 (1) of the Universal Declaration of Human Rights,
namely, the right to seek and to enjoy in other countries asylum from persecution.
c.
Category III
49.
In relation to category III, the source recalls that article 9 (4) of the Covenant provides
that anyone who is deprived of his or her liberty by arrest or detention is entitled to take
proceedings before a court, in order that the court may decide without delay on the lawfulness
of the detention and order his or her release if the detention is not lawful.
50.
Nevertheless, section 196 (3) of the Migration Act specifically provides that “even a
court” cannot release an unlawful non-citizen from detention unless the person has been
granted a visa.
51.
In A v. Australia, the Human Rights Committee observed that judicial review of
detention decisions by the Australian courts was limited to the question of whether detention
was lawful in accordance with domestic law and did not include that of whether it was
consistent with article 9 (1) of the Covenant. The Committee made clear that court reviews
of the lawfulness of detention under article 9 (4) of the Covenant, which must include the
possibility of ordering release, are not limited to mere compliance with domestic law.
52.
The possibility of review by the Ombudsman does not constitute a remedy for persons
subject to mandatory detention, as the Ombudsman can provide only recommendations and
has no enforcement powers. The recommendation made by the Ombudsman in 2016 to
resolve Mr. Ali’s immigration status without delay had little to no impact on his continued
detention, recalls the source.
53.
The source concludes that, in Australia, there is currently no effective mechanism to
challenge the legality of the detention of someone in Mr. Ali’s circumstances. The
requirement under article 9 (4) of the Covenant for review of the legality of the detention by
a judicial body is therefore not satisfied.
d.
Category IV
54.
In relation to category IV, the source reiterates that the High Court of Australia, in
Al-Kateb v. Godwin, held that the mandatory detention of non-citizens was a practice not
contrary to the Constitution of Australia. The Human Rights Committee has examined the
implications of that judgment and concluded that its effects were such that there was no
6 A/HRC/39/45, annex, para. 26; opinions No. 28/2017, No. 42/2017, No. 7/2019, No. 35/2020 and
No. 69/2021; and A/HRC/13/30, para. 63.
7 Opinions No. 45/2006 and No. 69/2021; A/HRC/7/4, para. 48; A/HRC/10/21, para. 82; and
A/HRC/13/30, para. 63.
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effective remedy to challenge the legality of continued administrative detention. 8 The
Working Group has on multiple occasions concurred with that view.9
55.
In accordance with the decision of the High Court of Australia in Commonwealth of
Australia v. AJL20, where the Commonwealth has a duty to remove a detainee from Australia
pursuant to section 198 (1) of the Migration Act as soon as reasonably practicable, yet appears
to be making minimal attempts to remove that detainee in pursuance of its statutory
obligations, it does not follow that the detention is unlawful.10 A breach of that duty by the
executive (for example, in the form of a delay) does not erase the duty to remove the detainee
from Australia. The Al-Kateb and AJL20 cases demonstrate that judicial review by the High
Court of Australia cannot serve as a remedy to indefinite detention. The only remedy in those
circumstances is not a writ of habeas corpus commanding the release of the detainee, but a
writ of mandamus commanding the Commonwealth to perform its duty to remove the
detainee.11
e.
Category V
56.
Lastly, in relation to category V, the source submits that Mr. Ali is deprived of his
liberty on the basis of his birth and nationality, as Australian citizens and non-citizens are not
equal before the courts and tribunals in Australia. The decision of the High Court of Australia
in Al-Kateb v. Godwin stands for the proposition that the detention of non-citizens pursuant
to, inter alia, section 189 of the Migration Act does not contravene the Constitution of
Australia. The effective result is that, while Australian citizens can challenge administrative
detention, non-citizens cannot.
57.
The source argues that this situation is discriminatory and contrary to article 26 of the
Covenant, according to which all persons are entitled without any discrimination to the equal
protection of the law. De facto indefinite detention due to immigration status is a breach of
article 26, read in conjunction with article 9, of the Covenant.
(b)
Response from the Government
58.
On 24 October 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 24 December 2023, detailed information about the
current situation of Mr. Ali and to clarify the legal provisions justifying his continued
detention and its compatibility with the obligations of Australia under international human
rights law and, in particular, with regard to the treaties ratified by the State. Moreover, the
Working Group called upon the Government of Australia to ensure Mr. Ali’s physical and
mental integrity.
59.
On 14 November 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 24 January 2024.
60.
The Government submitted its response on 25 January 2024, which was after the
deadline. Consequently, the Working Group cannot treat the reply as if it had been presented
in accordance with the Working Group’s methods of work.
8 See C v. Australia (CCPR/C/76/D/900/1999), Baban and Baban v. Australia
(CCPR/C/78/D/1014/2001), D and E and their two children v. Australia (CCPR/C/87/D/1050/2002),
Bakhtiyari et al. v. Australia (CCPR/C/79/D/1069/2002), Shams et al. v. Australia, Shafiq v. Australia
(CCPR/C/88/D/1324/2004), Nasir v. Australia (CCPR/C/116/D/2229/2012) and F.J. et al. v.
Australia (CCPR/C/116/D/2233/2013).
9 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 and No. 68/2021.
10 See High Court of Australia, Commonwealth of Australia v. AJL20, Case No. HCA 21 of 2021,
Judgment, 23 June 2021.
11 Ibid.
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2.
Discussion
61.
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.
62.
In determining whether the deprivation of liberty of Mr. 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 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.12 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)
Preliminary observations
63.
As a preliminary matter, the Working Group notes that, according to the
Government’s late reply, the High Court of Australia, in a decision of 8 November 2023 in
the matter of NZYQ v. Minister for Immigration, Citizenship and Multicultural Affairs and
Anor, held that executive detention was valid under sections 189 and 196 of the Act but that
the continuation of immigration detention was not validly authorized once a point had been
reached where there was no real prospect of the detainee’s removal from Australia becoming
practicable in the reasonably foreseeable future. Mr. Ali was assessed as being affected by
the decision of the High Court and was released from immigration detention on a Bridging
(Removal Pending) (Subclass 070) visa on 17 November 2023, as soon as reasonably
practicable following the decision. He is therefore no longer detained.
64.
There is no provision in the Working Group’s methods of work that precludes the
consideration of a case in such circumstances. Indeed, the Working Group considers it
necessary to render an opinion, given the serious allegations relating to Mr. Ali’s deprivation
of liberty.13 The Working Group has therefore decided, in accordance with paragraph 17 (a)
of its methods of work, to render the present opinion. The Working Group makes it clear that
the present opinion concerns only Mr. Ali’s immigration detention and is without prejudice
to his detention in the criminal justice context.
65.
The Working Group observes that the present case is one of numerous cases
concerning Australia since 2017.14 The cases follow the same pattern and concern the same
issue, namely, mandatory immigration detention in Australia as provided for under the
Migration Act. The Working Group reiterates its views on the Migration Act.15
66.
In all those previous cases, the Working Group clearly stated its apprehension at the
rising number of cases emanating from Australia concerning the implementation of the
Migration Act that have been brought to its attention. The Working Group is equally alarmed
that, in all those cases, the Government argued that the detention was lawful purely because
it followed the stipulations of the Migration Act.
67.
The Working Group reiterates that States have an obligation to respect, protect and
fulfil all human rights and fundamental freedoms, including liberty of person, and that any
national law allowing deprivation of liberty should be made and implemented in conformity
with the relevant international standards set forth in the Universal Declaration of Human
Rights, the Covenant and other applicable international and regional instruments.
Consequently, even if the detention is in conformity with national legislation, regulations and
practices, the Working Group is entitled and indeed obliged to assess the circumstances of
12 A/HRC/19/57, para. 68.
13 Opinions No. 50/2017, para. 53 (c); and No. 55/2018, para. 59.
14 See opinions No. 28/2017, No. 42/2017, No. 71/2017, No. 20/2018, No. 21/2018, No. 50/2018,
No. 74/2018, No. 1/2019, No. 2/2019, No. 74/2019, No. 35/2020, No. 70/2020, No. 71/2020,
No. 72/2020, No. 17/2021, No. 68/2021, No. 69/2021, No. 28/2022, No. 32/2022 and No. 33/2022.
15 Opinion No. 35/2020, paras. 98–103.
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the detention and the law itself to determine whether such detention is also consistent with
the relevant provisions of international human rights law.16
68.
The Working Group has previously emphasized that it is the duty of the Government
of Australia 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 these obligations by numerous international human
rights bodies, including the Human Rights Committee,17 the Committee on Economic, Social
and Cultural Rights,18 the Committee on the Elimination of Discrimination against Women,19
the Committee on the Elimination of Racial Discrimination,20 the Special Rapporteur on the
human rights of migrants21 and the Working Group.22
(b)
Category I
69.
In relation to category I, the source alleges that the basis for Mr. Ali’s deprivation of
liberty is section 189 (1) of the Migration Act and judicial precedent. Under statute, the
pressing of criminal charges against a bridging visa holder constitutes a prescribed ground
for cancellation under section 116 of the Migration Act and regulation 2.43 (1) (p) (ii) of the
Migration Regulations. Once a visa has been cancelled, the holder becomes an unlawful
non-citizen who is liable to indefinite detention. Classification as an unlawful non-citizen
under sections 13 and 14 of the Migration Act is the only component necessary for detention.
Under common law, the High Court of Australia, in Al-Kateb v. Godwin, held that the
detention of non-citizens pursuant to, inter alia, section 189 of the Migration Act did not
contravene the Constitution of Australia.
70.
In its late reply, the Government maintains that at no point before Mr. Ali’s release
did his detention become arbitrary. Prior to the decision of the High Court of Australia in
NZYQ v. Minister for Immigration, the Department of Home Affairs was administering the
Act on the basis of the long-standing decision of the High Court in Al-Kateb v. Godwin. In
that regard, the Department maintains that Mr. Ali’s placement in immigration detention was
reasonable, necessary and proportionate in the individual circumstances of his case.
71.
The Working Group, noting this and the numerous occasions on which it and other
United Nations human rights bodies and mechanisms have alerted Australia to the affront to
its obligations under international human rights law that the Migration Act poses and noting
the failure by the Government of Australia to take any action earlier, concludes that detention
of Mr. Ali under the Act was arbitrary under category I, as it violated article 9 (1) of the
Covenant. This domestic law, which violates international human rights law, as has been
brought to the attention of the Government on numerous occasions by international human
rights mechanisms, cannot be accepted as a valid legal basis for detention, especially noting
the findings of the Working Group under categories II and V below.
16 See General Assembly resolution 72/180, preambular para. 5; and Human Rights Council resolution
41/2, preambular para. 2; resolution 41/6, para. 5 (b); resolution 41/10, para. 6; resolution 41/17,
preambular para. 1; resolution 43/26, preambular para. 13; resolution 44/16, preambular para. 25;
resolution 45/19, preambular para. 9; resolution 45/20, preambular para. 2; resolution 45/21,
preambular para. 3; and resolution 45/29, preambular para. 3. See also Commission on Human Rights
resolution 1991/42, para. 2; and resolution 1997/50, para. 15; Human Rights Council resolution 6/4,
para. 1 (a); and resolution 10/9, para. 4 (b); and Working Group, opinions No. 41/2014, para. 24;
No. 3/2018, para. 39; No. 18/2019, para. 24; No. 36/2019, para. 33; No. 42/2019, para. 43;
No. 51/2019, para. 53; No. 56/2019, para. 74; No. 76/2019, para. 36; No. 6/2020, para. 36;
No. 13/2020, para. 39; No. 14/2020, para. 45; and No. 32/2020, para. 29.
17 CCPR/C/AUS/CO/6, paras. 33–38.
18 E/C.12/AUS/CO/5, paras. 17 and 18.
19 CEDAW/C/AUS/CO/8, paras. 53 and 54.
20 CERD/C/AUS/CO/18-20, paras. 29–33.
21 See A/HRC/35/25/Add.3.
22 For example, opinions No. 50/2018, paras. 86–89; No. 74/2018, paras. 99–103; No. 1/2019,
paras. 92–97; No. 2/2019, paras. 115–117; No. 74/2019, paras. 37–42; No. 35/2020, paras. 98–103;
and No. 17/2021, paras. 125–128.
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(c)
Category II
72.
In regard to category II, the source argues that Mr. Ali has been deprived of liberty
for exercising his right under article 14 (1) of the Universal Declaration of Human Rights,
namely, the right to seek and to enjoy in other countries asylum from persecution.
73.
The source explains that, on 19 June 2012, Mr. Ali arrived in Australia by boat, fleeing
persecution by the Taliban in Pakistan. Upon arrival, he was administratively detained by the
authorities under section 189 (1) of the Migration Act. Mr. Ali was held at the North West
Point Immigration Detention Centre on Christmas Island. Mr. Ali promptly sought asylum
in Australia on the ground of being the subject of persecution by the Taliban.
74.
The Government describes Mr. Ali as an unlawful maritime arrival, who, upon arrival,
was detained by the authorities under section 189 of the Migration Act and remained in
various immigration detention centres over a period of months.
75.
There is no dispute that, until his release, Mr. Ali had been detained and had remained
in detention on the basis of the provisions the Migration Act. The source argues that Mr. Ali
was detained under the Act purely for the exercise of his right under article 14 of the
Universal Declaration of Human Rights. The Government does not contest that Mr. Ali’s
detention was due to his migratory status but nevertheless argues that such detention is strictly
in accordance with the Migration Act.
76.
The Working Group has consistently maintained that seeking asylum is not a criminal
act; on the contrary, it is a universal human right, enshrined in article 14 of the Universal
Declaration of Human Rights and in the Convention relating to the Status of Refugees and
the Protocol thereto. The Working Group notes that these instruments constitute international
legal obligations that Australia has undertaken.23
77.
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.24 This echoes the views of the Human Rights Committee, which argued as follows
in paragraph 18 of its general comment No. 35 (2014) on liberty and security of person:
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 a particular reason 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.
78.
Since the cancellation, on 10 April 2014, of Mr. Ali’s bridging visa by a delegate of
the Minister of Immigration and Border Protection under section 116 (1) (g) of the Migration
Act on the basis that he had been charged with an offence, he has been subject to the
automatic immigration detention policy of Australia. The Working Group therefore
concludes that Mr. Ali was detained due to the legitimate exercise of his right under article 14
of the Universal Declaration of Human Rights.
79.
Consequently, noting that Mr. Ali was detained due to the legitimate exercise of his
right under article 14 of the Universal Declaration of Human Rights and his rights under
articles 2 and 9 of the Covenant, the Working Group finds his detention arbitrary, falling
under category II.
(d)
Category IV
80.
In relation to category IV, the source reiterates that, in Al-Kateb v. Godwin, the High
Court of Australia held that the mandatory detention of non-citizens is a practice not contrary
to the Constitution of Australia. The Human Rights Committee has examined the
23 See also, for example, opinions No. 28/2017, No. 42/2017 and No. 35/2020.
24 A/HRC/39/45, annex, para. 12.
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implications of that judgment and concluded that there was no effective remedy to challenge
the legality of continued administrative detention.
81.
In effect, Mr. Ali was thus subjected to prolonged administrative custody without the
possibility of administrative or judicial review or remedy.
82.
The Working Group recalls that, according to the United Nations Basic Principles and
Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty
to Bring Proceedings Before a Court, the right to challenge the lawfulness of detention before
a court is a self-standing human right, which is essential to preserve legality in a democratic
society.25 This right, which is a peremptory norm of international law, applies to all forms of
deprivation of liberty26 and to all situations of deprivation of liberty, including not only
detention for purposes of criminal proceedings but also migration detention.27
83.
The facts of Mr. Ali’s case since his immigration detention on 20 April 2014 evidently
show that no assessment of the necessity to detain him or indeed the proportionality of such
detention to his individual circumstances was ever carried out. The Government has not
shown that an individualized assessment of the need for detention was carried out in Mr. Ali’s
case and by which judicial body it was carried out. His visa was cancelled, leading to his
immediate immigration detention.
84.
The Working Group therefore concludes that, during Mr. Ali’s 10 years of detention,
no judicial body was ever involved in the assessment of the legality of his detention, noting
that international human rights law requires such consideration as part of the assessment of
the legitimacy, necessity and proportionality of the detention.28
85.
The Working Group once again reiterates that the indefinite detention of individuals
in the course of migration proceedings cannot be justified and is arbitrary,29 which is why the
Working Group has required that a maximum period for detention in the course of migration
proceedings must be set by legislation and, upon the expiry of the period for detention set by
law, the detained person must be automatically released. 30 There cannot be a situation
whereby individuals are caught up in an endless cycle of periodic reviews of their detention
without any prospect of actual release. This is a situation akin to indefinite detention, which
cannot be remedied even by the most meaningful review of detention on an ongoing basis.31
As stated in revised deliberation No. 5:
There may be instances when the obstacle for identifying or removal of persons in an
irregular situation from the territory is not attributable to them, including
non-cooperation of the consular representation of the country of origin; the principle
of non-refoulement; or the unavailability of means of transportation, which render
expulsion impossible. In such cases, the detainee must be released to avoid potentially
indefinite detention from occurring, which would be arbitrary.32
86.
The Working Group recalls the numerous cases in which the Human Rights
Committee has found the application of mandatory immigration detention in Australia and
the impossibility of challenging such detention to be in breach of article 9 (1) of the
Covenant. 33 Moreover, as the Working Group notes in its revised deliberation No. 5,
detention in a migration setting must be exceptional and, in order to ensure that it is,
25 A/HRC/30/37, paras. 2 and 3.
26 Ibid., para. 11.
27 Ibid., annex, para. 47 (a).
28 A/HRC/39/45, annex, paras. 12 and 13.
29 Ibid., para. 26; and opinions No. 42/2017, No. 28/2017, No. 7/2019 and No. 35/2020. See also
A/HRC/13/30, para. 63.
30 A/HRC/39/45, annex, para. 25. See also A/HRC/13/30, para. 61; and opinion No. 7/2019.
31 See opinions No. 1/2019 and No. 7/2019.
32 A/HRC/39/45, annex, para. 27.
33 See C. v. Australia, Baban and Baban v. Australia, Shafiq v. Australia, Shams et al. v. Australia,
Bakhtiyari et al. v. Australia, D and E and their two children v. Australia, Nasir v. Australia and F.J.
et al. v. Australia.
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alternatives to detention must be sought.34 In the case of Mr. Ali, the Working Group has
already established that, between his detention on 10 April 2014 and his release on
17 November 2023, no alternatives to detention were considered.
87.
Consequently, the Working Group finds that Mr. Ali was potentially subjected to de
facto indefinite detention due to his migratory status, without the possibility to challenge the
legality of such detention before a judicial body, a right enshrined in article 9 (4) of the
Covenant. This was therefore arbitrary, falling under category IV. In making this finding, the
Working Group recalls that, in numerous cases, the Human Rights Committee has found the
application of mandatory immigration detention in Australia and the impossibility of
challenging such detention to be in breach of article 9 of the Covenant.35
(e)
Category V
88.
Furthermore, the Working Group notes the source’s argument that Mr. Ali, as a
non-citizen, appeared to have been in a different situation to 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 could challenge
administrative detention, non-citizens could not.
89.
In its late reply, the Government refers to article 26 of the Covenant, which provides
that all people are entitled to equal protection under the law without any discrimination. It
argues that the object of the Migration Act is to regulate, in the national interest, the coming
into, and presence in, Australia of non-citizens. In that sense, the purpose of the Act is to
differentiate, on the basis of nationality, between non-citizens and citizens. The Government
refers to the Human Rights Committee as having recognized that: “The Covenant does not
recognize the right of aliens to enter or reside in the territory of a State party. It is in principle
a matter for the State to decide who it will admit to its territory.”36
90.
However, non-citizens such as Mr. Ali could not effectively challenge their continued
detention after the decisions of the High Court of Australia in Al-Kateb v. Godwin and NZYQ
v. Minister for Immigration, yet the ability to challenge detention is what the Government
ought to show in order to show compliance with articles 9 and 26 of the Covenant.
91.
In the past, the Working Group has concurred with the views of the Human Rights
Committee on this matter,37 and this remains the position of the Working Group in the present
case. The Working Group underlines that this situation was discriminatory and contrary to
article 26 of the Covenant. It therefore concludes that the detention of Mr. Ali was arbitrary,
falling under category V.
(f)
Concluding remarks
92.
The Working Group welcomes the decision of the High Court of Australia in NZYQ
v. Minister for Immigration and Mr. Ali’s consequent release from detention. It notes,
however, that this decision does not establish a basis for compensation or other reparations
or a possibility to challenge the unlawfulness of detention. Mr. Ali therefore was still
subjected to arbitrary detention.
93.
The Working Group, moreover, expresses concern over the state of Mr. Ali’s mental
and physical health. The source reports that, following his prolonged detention, Mr. Ali’s
34 A/HRC/39/45, annex, para. 16. See also E/CN.4/1999/63/Add.3, para. 33; A/HRC/13/30, para. 59;
A/HRC/19/57/Add.3, para. 68 (e); A/HRC/27/48/Add.2, para. 124; and A/HRC/30/36/Add.1,
para. 81. See further opinions No. 21/2018 and No. 72/2017.
35 See C. v. Australia, Baban and Baban v. Australia, Shafiq v. Australia, Shams et al. v. Australia,
Bakhtiyari et al. v. Australia, D and E and their two children v. Australia, Nasir v. Australia and F.J.
et al. v. Australia.
36 General comment No. 15 (1986), para. 5.
37 See opinions No. 28/2017, No. 42/2017, No. 71/2017, No. 20/2018, No. 21/2018, No. 50/2018,
No. 74/2018, No. 1/2019, No. 2/2019, No. 74/2019, No. 35/2020, No. 70/2020, No. 71/2020,
No. 72/2020, No. 17/2021, No. 68/2021, No. 28/2022, No. 32/2022 and No. 33/2022.
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mental health has been severely compromised and that he suffers from symptoms such as
low mood, sleeping for up to 22 hours at a time and, at times, loss of faith.
94.
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. 38 The
conditions of their detention must be humane, appropriate and respectful, noting the
non-punitive character of detention in the course of migration proceedings. The Working
Group refers the present case to the Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health and the Special
Rapporteur on the human rights of migrants for appropriate action.
95.
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 would be an opportunity to engage with the Government constructively and to
offer its assistance in addressing concerns relating to instances of arbitrary deprivation of
liberty.
3.
Disposition
96.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Wajid 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.
97.
The Working Group requests the Government of Australia to take the steps necessary
to remedy the situation of Mr. 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.
98.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to accord Mr. Ali an enforceable right to compensation
and other reparations, in accordance with international law.
99.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Ali
and to take appropriate measures against those responsible for the violation of his rights.
100.
The Working Group requests the Government to bring its laws, in particular the
Migration Act, into conformity with the recommendations made in the present opinion and
with the commitments of Australia under international human rights law.
101.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health and the Special Rapporteur on the
human rights of migrants, for appropriate action.
102.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
103.
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 compensation or other reparations have been made to Mr. Ali;
(b)
Whether an investigation has been conducted into the violation of Mr. Ali’s
rights and, if so, the outcome of the investigation;
38 A/HRC/39/45, annex, para. 38.
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(c)
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;
(d)
Whether any other action has been taken to implement the present opinion.
104.
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.
105.
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.
106.
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.39
[Adopted on 26 March 2024]
39 Human Rights Council resolution 51/8, paras. 6 and 9.