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1. The author of the
communication is A, a Cambodian citizen who, at the time of submission of
his communication on 20 June 1993, was detained at the Department of
Immigration Port Hedland Detention Centre, Cooke Point, Western Australia.
He was released from detention on 27 January 1994. He claims to be the
victim of violations by Australia of article 9, paragraphs 1, 4 and 5, and
article 14, paragraphs 1 and 3(b), (c) and (d), juncto article 2, paragraph
1, of the International Covenant on Civil and Political Rights. He is
represented by counsel. The Optional Protocol entered into force for
Australia on 25 December 1991.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 A, a Cambodian national born in 1934, arrived in Australia by boat,
code-named "Pender Bay", together with 25 other Cambodian nationals,
including his family, on 25 November 1989. Shortly after his arrival, he
applied for refugee status under the 1951 Convention Relating to the Status
of Refugees and the 1967 Protocol thereto. His application was formally
rejected in December 1992.
2.2 Counsel provides a detailed chronology of the events in the case. The
author's initial application for refugee status was filed on 9 December
1989, with the assistance of a Khmer interpreter and an immigration
official. Legal assistance was not offered during the preparation of the
application. On 13 December 1989, the author and other occupants of the boat
were interviewed separately by the same immigration official. On 21 December
1989, the author and other Pender Bay occupants were flown to Villawood
Detention Centre in Sydney. On 27 April 1990, the author was again
interviewed by immigration officials regarding his application for refugee
status. The application was rejected by the Federal Government's
Determination of Refugee Status Committee on 19 June 1990; the decision was
not communicated to the author. Counsel notes that, on that day, none of the
Pender Bay detainees had yet seen a lawyer.
2.3 Following intercession by concerned parties, the Minister for
Immigration allowed the New South Wales Legal Aid Commission to review the
Pender Bay cases. Upon conclusion of its review, the Commission was
authorized to provide further statements and material to the Immigration
Department. Commission lawyers first visited the author at Villawood in
September 1990. The Commission filed formal submissions on his behalf on 24
March and on 13 April 1991 but, because of new Determination of Refugee
Status Committee regulations in force since December 1990, all applications
had to be reassessed by Immigration Department desk officers. On 26 April
1991, the Commission was given two weeks to reply to the new assessments;
replies were filed on 13 May 1991. On 15 May 1991, the Minister's delegate
rejected the author's application.
2.4 On 20 May 1991, the author and other detainees were told that their
cases had been rejected, that they had 28 days to appeal, and that they
would be transferred to Darwin, several thousands of kilometres away in the
Northern Territory. A copy of the rejection letter was given to them, but
interpretation was not made available. At this moment, the detainees
believed that they were being returned to Cambodia. During the transfer, no
one was allowed to talk to the other detainees, and permission to make
telephone calls was refused. At no time was the New South Wales Legal Aid
Commission informed of the removal of its clients from its jurisdiction.
2.5 The author was then transferred to Curragundi Camp, located 85 km
outside Darwin. The site has been described as "totally unacceptable" for a
refugee detention centre by the Australian Human Rights and Equal
Opportunity Commissioner, as it is flood-prone during the wet season. More
importantly, as a result of the move to the Northern Territory, contact
between the author and the New South Wales Legal Aid Commission was cut off.
2.6 On 11 June 1991, the Northern Territory Legal Aid Commission filed an
application with the Refugee Status Review Committee (which had replaced the
Determination of Refugee Status Commission), requesting a review of the
refusal to grant refugee status to the author and the other Pender Bay
detainees. On 6 August 1991, the author was moved to Berrimah Camp, closer
to Darwin, and from there, on 21 October 1991, to Port Hedland Detention
Centre, approximately 2,000 km away in Western Australia. As a result of the
latter transfer, the author lost contact with his legal representatives in
the Northern Territory Legal Aid Commission.
2.7 On 5 December 1991, the Refugee Status Review Committee rejected all of
the Pender Bay applications for refugee status, including the author's. The
detainees were not informed of the decisions until letters dated 22 January
1992 were transmitted to their former representatives on the Northern
Territory Legal Aid Commission. On 29 January, the Commission addressed a
letter to the Committee, requesting it to reconsider its decision and to
allow reasonable time for the Pender Bay detainees to obtain legal
representation to enable them to comment on the decision.
2.8 Early in 1992, the Federal Immigration Department contracted the Refugee
Council of Australia to act as legal counsel for asylum-seekers held at Port
Hedland. On 4 February 1992, Council lawyers started to interview inmates
and, on 3 March 1992, the Council transmitted a response to the Refugee
Status Review Committee's decision on the author's behalf to the Minister's
delegate. On 6 April 1992, the author and several other Pender Bay detainees
were informed that the Minister's delegate had refused their refugee status
applications. Undertakings were immediately sought from the Immigration
Department that none of the detainees would be deported until they had had
the possibility of challenging the decision in the Federal Court of
Australia; such undertakings were refused. Later on 6 April, however, the
author obtained an injunction in the Federal Court, Darwin, which prevented
the implementation of the decision. On 13 April 1992, the Minister for
Immigration ordered the delegate's decision to be withdrawn, on account of
an alleged error in the decision-making process. The effect of that decision
was to remove the case from the jurisdiction of the Federal Court.
2.9 On 14 April 1992, Federal Court proceedings were abandoned, and lawyers
for the Immigration Department assured the court that a revised report on
the situation in Cambodia would be made available to the Refugee Council of
Australia by the Department of Foreign Affairs and Trade within two weeks.
Meanwhile, the author had instructed his lawyer to continue with an
application to the Federal Court, to seek release from detention; a hearing
was scheduled for 7 May 1992 in the Federal Court at Melbourne.
2.10 On 5 May 1992, the Australian Parliament passed the Migration Amendment
Act (1992), which amended the 1958 Migration Act by insertion of a new
division 4B, which defined the author and others in situations similar to
his as "designated persons". Section 54R stipulated: "a court is not to
order the release from custody of a designated person". On 22 May 1992, the
author instituted proceedings in the High Court of Australia, seeking a
declaratory judgement that the relevant provisions of the Migration
Amendment Act were invalid.
2.11 The revised report of the Department of Foreign Affairs and Trade,
promised for the end of April 1992, was not finalized until 8 July 1992; on
27 July 1992, the Refugee Council of Australia forwarded a response to the
update to the Immigration Department and, on 25 August 1992, the Refugee
Status Review Committee once more recommended dismissal of the author's
application for refugee status. On 5 December 1992, the Minister's delegate
rejected the author's claim.
2.12 The author once more sought a review of the decision in the Federal
Court of Australia, and since the Immigration Department refused to give
assurances that the author would not be deported immediately to Cambodia, an
injunction restraining the Department from removing the author was obtained
in the Federal Court. In the meantime, by judgement of 8 December 1992, the
High Court of Australia upheld the validity of major portions of the
Migration Amendment Act, which meant that the author would remain in
custody.
THE COMPLAINT
3.1 Counsel argues that his client was detained "arbitrarily" within the
meaning of article 9, paragraph 1. He refers to the Human Rights Committee's
General Comment on article 9, which extends the scope of article 9 to cases
of immigration control, and to the Views of the Committee on communication
No. 305/1988, Van Alphen v. the Netherlands: Views adopted on 23 July 1990,
paragraph 5.8. where arbitrariness was defined as not merely being against
the law, but as including elements of "inappropriateness, injustice and lack
of predictability". By reference to article 31 of the Convention Relating to
the Status of Refugees and to conclusion No. 44 (1986) of the Executive
Committee of the Programme of the United Nations High Commissioner for
Refugees on detention of refugee and asylum-seekers, it is argued that
international treaty law and customary international law require that
detention of asylum-seekers be avoided as a general rule. Where such
detention may become necessary, it should be strictly limited (see
conclusion No. 44, para. (b)). Counsel provides a comparative analysis of
immigration control and legislation in several European countries as well as
Canada and the United States of America. He notes that, under Australian
law, not all illegal entrants are subject to detention, nor all
asylum-seekers. Those who arrive at Australian borders without a valid visa
are referred to as "prohibited entrants" and may be detained under section
88 or 89 of the Migration Act 1958. Section 54B classifies individuals who
are intercepted before or on arrival in Australia as "unprocessed persons".
Such persons are deemed not to have entered Australia, and are taken to a
"processing area".
3.2 The author and others arriving in Australia before 1992 were held by the
Federal Government under section 88 as "unprocessed persons", until the
entry into force of division 4B of the Migration Amendment Act. Counsel
argues that, under these provisions, the State party has established a
harsher regime for asylum-seekers who have arrived by boat, without
documentation ("boat people") and who are designated under the provision.
The practical effect of the amendment is said to be that persons designated
under division 4B automatically remain in custody unless or until removed
from Australia or granted an entry permit.
3.3 It is contended that the State party's policy of detaining boat people
is inappropriate, unjustified and arbitrary, as its principal purpose is to
deter other boat people from coming to Australia, and to deter those already
in the country from continuing with applications for refugee status. The
application of the new legislation is said to amount to "human deterrence",
based on the practice of rigidly detaining asylum-seekers under such
conditions and for periods so prolonged that prospective asylum-seekers are
deterred from even applying for refugee status, and current asylum-seekers
lose all hope and return home.
3.4 No valid grounds are said to exist for the detention of the author, as
none of the legitimate grounds of detention referred to in conclusion No. 44
(see para. 3.1 above) applies to his case. Furthermore, the length of
detention - 1,299 days or three years and 204 days as at 20 June 1993 - is
said to amount to a breach of article 9, paragraph 1.
3.5 Counsel further contends that article 9, paragraph 4, has been violated
in the author's case. The effect of division 4B of the Migration Amendment
Act is that once a person is qualified as a "designated person", there is no
alternative to detention, and the detention may not be reviewed effectively
by a court, as the courts have no discretion to order the person's release.
This was conceded by the Minister for Immigration in a letter addressed to
the Senate Standing Committee for the Scrutiny of Bills, which had expressed
concern that the legislative amendment was to deny designated persons access
to the courts and might raise problems in the light of Australia's
obligations under the Covenant. The Australian Human Rights Commissioner,
too, commented that the absence of court procedures to test either
reasonableness or necessity of such detention was in breach of article 9,
paragraph 4.
3.6 It is further contended that persons such as the author have no
effective access to legal advice, contrary to article 16 of the Convention
Relating to the Status of Refugees. That individuals like the author are
kept in prolonged custody is said to make access to lawyers all the more
important. With respect to the author's case, counsel contends that the
State party breached article 9, paragraph 4, and article 14 in the following
situations:
(a) Preparation of application for refugee status;
(b) Access to lawyers during the administrative stage of the refugee
process;
(c) Access to lawyers during the judicial review stage of the refugee
process; in this context, it is noted that the frequent transfers of the
author to detention facilities far away from major urban centres vastly
compounded the difficulties in providing legal advice to him. Thus, Port
Hedland, where A was held for over two years, is expensive to reach by air,
and the nearest major town, Perth, is over 2,000 km away. Because of the
costs and logistical problems involved, it was difficult to find competent
Refugee Council of Australia lawyers to take up the case.
3.7 Counsel contends that the serious delays on the part of the State party
in determining the author's application for refugee status constitute a
breach of article 14, paragraph 3(c), particularly given the fact that he
remained in detention for much of the process.
3.8 It is contended that, as A was detained arbitrarily, he qualifies for
compensation under article 9, paragraph 5, of the Covenant. Counsel submits
that "compensation" in this provision must be understood to mean "just and
adequate" compensation, but adds that the State party has removed any right
to compensation for illegal detention by a legislative amendment to the
Migration Act. He notes that as a result of the judgement of the High Court
of Australia in A's case, further proceedings were filed in the High Court
on behalf of the Pender Bay detainees - including the author - seeking
damages for unlawful detention. On 24 December 1992, Parliament added
Section 54RA(1)-(4) to division 4B of the Migration Act according to counsel
in direct response to the High Court's findings in A's case and the
imminence of the filing of possible claims for compensation for illegal
detention. In paragraph 3, the new provision restricts compensation for
unlawful detention to the symbolic sum of one dollar per day. It is
submitted that the author is entitled to just and adequate compensation for
(a) pecuniary losses, namely, the loss of the boat in which he arrived in
Australia; (b) non-pecuniary losses, including injury to liberty,
reputation, and mental suffering; and (c) aggravated and exemplary damages
based, in particular, on the length of the detention and its conditions. The
symbolic sum the author might be entitled to under Section 54RA(3) of
division 4B would not meet the criteria for compensation under article 9,
paragraph 5.
3.9 Finally, counsel argues that the automatic detention of boat people of
primarily Asian origin, on the sole basis that they meet all the criteria of
division 4B of the Migration Act 1958, constitutes discrimination on the
basis of "other status" under article 2, paragraph 1, of the Covenant,
"other status" being the status of boat people.
THE STATE PARTY'S ADMISSIBILITY OBSERVATIONS AND COMMENTS
4.1 In its submission under rule 91, the State party supplements the facts
as presented by the author, and provides a chronology of the litigation in
which the author has been, and continues to be, involved. It notes that,
after the final decision to reject the author's application for refugee
status was taken in December 1992, the author continued to take legal
proceedings challenging the validity of that decision. Detention after
December 1992 is said to have been exclusively the result of legal
challenges by the author. In this context, the State party recalls that, by
a letter of 2 November 1993, the Minister for Immigration offered the author
the opportunity, in the event of his voluntary return to Cambodia, of
applying for (re)entry to Australia after 12 months, on a permanent visa
under the Special Assistance Category. The State party further adds that the
author's wife's application for refugee status has been approved and that,
as a result, the author was released from custody on 21 January 1994 and
will be allowed to remain in Australia.
4.2 The State party concedes the admissibility of the communication in so
far as it alleges that the author's detention was "arbitrary" within the
meaning of article 9, paragraph 1. It adds, however, that it strongly
contests on the merits that the author's detention was "arbitrary", and that
it contained elements of "inappropriateness, injustice and lack of
predictability".
4.3 The State party challenges the admissibility of other elements of the
complaint relating to article 9, paragraph 1. In this context, it notes that
the communication is inadmissible ratione materiae, to the extent that it
seeks to rely on customary international law or provisions of other
international instruments such as the 1951 Convention Relating to the Status
of Refugees. The State party argues that the Committee is competent only to
determine whether there have been breaches of any of the rights set forth in
the Covenant; it is not permissible to rely on customary international law
or other international instruments as the basis of a claim.
4.4 Similarly, the State party claims that counsel's general claim that
Australian policy of detaining boat people is contrary to article 9,
paragraph 1, is inadmissible, as the Committee is not competent to review in
abstracto particular government policies or to rely on the application of
such policies to find breaches of the Covenant. Therefore, the communication
is considered inadmissible to the extent that it invites the Committee to
determine generally whether the policy of detaining boat people is contrary
to article 9, paragraph 1.
4.5 The State party contests the admissibility of the allegation under
article 9, paragraph 4, and argues that existing avenues for review of the
lawfulness of detention under the Migration Act are compatible with article
9, paragraph 4. It notes that counsel does not allege that there is no right
under Australian law to challenge the lawfulness of detention in court.
Habeas corpus, for instance, a remedy available for this purpose, has never
been invoked by the author. It is noted that the author did challenge the
constitutional validity of division 4B of part 2 of the Migration Act in the
Australian High Court, which upheld the relevant provision under which, from
6 May 1992, the author had been detained. In its judgement, the High Court
confirmed that, if a person was unlawfully detained, he could request
release by a court. Prior to his release, no proceedings to challenge the
lawfulness of his detention were initiated by A, despite the possibility of
such proceedings. Other detainees, however, successfully instituted
proceedings which led to their release on the ground that they were held
longer than allowed under division 4B of the Migration Act. Tang Jia Xin v.
Minister for Immigration and Ethnic Affairs No. 1 (1993), 116 ALR 329; Tang
Jia Xin v. Minister for Immigration and Ethnic Affairs No. 2 (1993), 116 ALR
349. After this action, another 36 detainees were released from custody. The
State party submits that, on the basis of the material submitted by counsel,
there is "no basis whatsoever on which the Committee could find a breach of
article 9, paragraph 4, on the ground that the author was unable to
challenge the lawfulness of his detention". A violation has not been
sufficiently substantiated, as required under rule 90(b) of the rules of
procedure. The State party adds that the allegations relating to article 9,
paragraph 4, could be deemed an abuse of the right of submission and that,
in any event, the author failed to exhaust domestic remedies in this
respect, as he did not test the lawfulness of his detention.
4.6 To the extent that the communication seeks to establish a violation of
article 9, paragraph 4, on the ground that the reasonableness or
appropriateness of detention cannot be challenged in court, the State party
considers that the absence of discretion for a court to order a person's
release falls in no way within the scope of application of article 9,
paragraph 4, which only concerns review of lawfulness of detention.
4.7 To the extent that the communication claims a breach of article 9,
paragraph 4, because of absence of effective access to legal representation,
the State party notes that this issue is not covered by the provision:
access to legal representation cannot, in the State party's opinion, be read
into the provision as in any way related to or a necessary right which flows
from the guarantee that an individual is entitled to take proceedings before
a court. It confirms that the author had access to legal advisers. Thus, the
funding for legal assistance was provided through all the stages of the
administrative procedure; subsequently, he had access to legal advice to
pursue judicial remedies. For these reasons, the State party argues that
there is insufficient substantiation of facts which might establish a
violation of article 9, paragraph 4, by virtue of absence of access to legal
advisers. To the extent that the claim concerning access to legal advisers
seeks to rely on article 16 of the 1951 Convention Relating to the Status of
Refugees, the State party refers to its arguments in paragraph 4.3 above.
4.8 The State party disputes that the circumstances of the author's
detention give rise to any claim for compensation under article 9, paragraph
5, of the Covenant. It notes that the Government itself conceded in legal
proceedings brought by the author and others that the applicants in this
case had been detained without the statutory authority under which boat
people had been held prior to the enactment of division 4B of part 2 of the
Migration Act: this was merely the result of a bona fide but mistaken
interpretation of the legislation under which the author had been held. On
account of the inadvertent basis for the unlawful detention of individuals
in the author's situation, the Australian Parliament enacted special
compensation legislation. The State party considers this legislation
compatible with article 9, paragraph 5.
4.9 The State party points out that a number of boat people have instituted
proceedings challenging the constitutional validity of the relevant
legislation. As the author is associated with those proceedings, he cannot
be deemed to have exhausted domestic remedies in respect of his claim under
article 9, paragraph 5.
4.10 The State party refutes the author's claim that article 14 applies to
immigration detention and considers the communication inadmissible to the
extent that it relies on article 14. It recalls that article 14 only applies
to criminal charges; detention for immigration purposes is not detention
under criminal law, but administrative detention, to which article 14,
paragraph 3, is clearly inapplicable. This part of the communication is
therefore considered inadmissible ratione materiae.
4.11 Finally, the State party rejects the author's allegation of
discrimination based on articles 9 and 14 juncto article 2, paragraph 1, on
the ground that there is no evidence to sustain a claim of discrimination on
the ground of race. It further submits that the quality of "boat person"
cannot be approximated to "other status" within the meaning of article 2.
Accordingly, this aspect of the case is deemed inadmissible ratione materiae,
as incompatible with the provisions of the Covenant.
4.12 In relation to the allegation of discrimination on the basis of race,
the State party affirms that there is no substance to this claim, as the law
governing detention of illegal boat arrivals applies to individuals of all
nationalities, regardless of their ethnic origin or race. The State party
proceeds to an analysis of the meaning of the term "other status" in
articles 2 and 26 of the Covenant and, by reference to the Committee's
jurisprudence on this issue, recalls that the Committee itself has held that
there must be limits to the term "other status". In order to be subsumed
under this term, the State party argues, a communication must point to some
status based on the personal characteristics of the individual concerned.
Under Australian law, the only basis may be seen to be the fact of illegal
arrival of a person by boat: "Given that a State is entitled under
international law to determine whom it admits to its territory, it cannot
amount to a breach of articles 9 and 14 in conjunction of article 2,
paragraph 1, for a State to provide for illegal arrivals to be treated in a
certain manner based on their method of arrival". For the State party, there
is no basis in the Committee's jurisprudence relating to discrimination
under article 26 under which "boat person" could be regarded as "other
status" within the meaning of article 2.
5.1 In his comments, counsel takes issue with some of the State party's
arguments. He disputes that the three-year period necessary for the final
decision of the author's application for refugee status was largely
attributable to delays in making submissions and applications by lawyers,
with a view to challenging the decision-making process. In this context, he
notes that of the 849 days which the administrative process lasted, the
author's application was with the Australian authorities for 571 days - two
thirds of the time. He further recalls that during this period the author
was moved four times and had to rely on three unrelated groups of legal
representatives, all of whom were funded with limited public resources and
needed time to acquaint themselves with the file.
5.2 Counsel concedes that the author was given a domestic Protection
(Temporary) Entry Permit on 21 January 1994 and released from custody, after
his wife was granted refugee status because of her Vietnamese ethnic origin.
It is submitted that the author could not have brought his detention to an
end by leaving Australia voluntarily and returning to Cambodia, first
because he genuinely feared persecution if he returned to Cambodia and,
secondly, because it would have been unreasonable to expect him to return to
Cambodia without his wife.
5.3 The author's lawyer reaffirms that his reliance on article 31 of the
1951 Convention Relating to the Status of Refugees or other instruments to
support his allegation of a breach of article 9, paragraph 1, is simply for
the purpose of interpreting and elaborating on the State party's obligations
under the Covenant. He contends that other international instruments may be
relevant in the interpretation of the Covenant, and in this context draws
the Committee's attention to a statement made by the Attorney-General's
Department before the Joint Committee on Migration, in which it was conceded
that treaty bodies such as the Human Rights Committee may rely on other
international instruments for the purpose of interpreting the scope of the
treaty of which they monitor the implementation.
5.4 Counsel reiterates that he does not challenge the State party's policy
vis-à-vis boat people in abstracto, but submits that the purpose of
Australian policy, namely, deterrence, is relevant inasmuch as it provides a
test against which "arbitrariness" within the meaning of article 9,
paragraph 1, can be measured: "It is not possible to determine whether
detention of a person is appropriate, just or predictable without
considering what was in fact the purpose of the detention". The purpose of
detention in the author's case was enunciated in the Minister for
Immigration's introduction to the Migration Legislation Amendment Bill 1992;
this legislation, it is submitted, was passed in direct response to an
application by the author and other Cambodian nationals for release by the
Federal Court, which was due to hear the case two days later.
5.5 Concerning the claim under article 9, paragraph 4, counsel submits that,
where discretion under division 4B of the Migration Act 1958 to release a
designated person does not exist, the option to take proceedings for release
in court is meaningless.
5.6 Counsel concedes that, after the decision of the High Court in December
1992, no further challenge was indeed made to the lawfulness of the author's
detention. This was because A clearly came within the scope of division 4B
and not within the scope of the 273-day provisions in Section 54Q, so that
any further challenge to his continued detention would have been futile. It
is submitted that the author is not required to pursue futile remedies to
establish a breach of article 9, paragraph 4, or to establish that domestic
remedies have been exhausted under article 5, paragraph 2(b), of the
Optional Protocol.
5.7 Counsel insists that an entitlement to take proceedings before a court
under article 9, paragraph 4, necessarily requires that an individual have
access to legal advice. Wherever a person is under detention, access to the
courts can generally only be achieved through assistance of counsel. In this
context, counsel disputes that his client had adequate access to legal
advice: no legal representation was afforded to him from 30 November 1989 to
13 September 1990, when the New South Wales Legal Aid Commission began to
represent him. It is submitted that the author, who was unaware of his right
to legal assistance and who spoke no English, should have been advised of
his right to legal advice, and that there was a positive duty upon the State
party to inquire of the author whether he sought legal advice. This positive
duty is said to be consistent with principle 17(1) of the Body of Principles
for the Protection of All Persons under Any Form of Detention or
Imprisonment and rule 35(1) of the Standard Minimum Rules for the Treatment
of Prisoners.
5.8 Author's counsel adds that on two occasions his client was forcibly
removed from a State jurisdiction and therefore from access to his lawyers.
On neither occasion was adequate notice of his removal given to his lawyers.
It is submitted that these events constitute a denial of the author's access
to his legal advisers.
5.9 Concerning the State party's observations on the claim under article 9,
paragraph 5, counsel observes that the author is not a party to proceedings
currently under way which challenge the validity of the legislation
restricting damages for unlawful detention to one dollar per day. Rather,
the author is plaintiff in a separate action which has not proceeded beyond
initial procedural stages and will not be heard for at least a year. Counsel
contends that his client is not required to complete these proceedings in
order to comply with the requirements of article 5, paragraph 2(b), of the
Optional Protocol. In this context, he notes that, in June 1994, the
Australian Parliament introduced new legislation to amend retrospectively
the Migration Act 1958, thereby foreclosing any rights which the plaintiffs
in the case of Chu Kheng Lim (concerning unlawful detention of boat people)
may have to damages for unlawful detention. On 21 September 1994, the
Government introduced Migration Legislation Amendment Act (No. 3) 1994
("Amendment No. 3"), which intended to repeal the original "dollar a day"
legislation. As a direct result of this legislation, the High Court
proceedings in the case of Ly Sok Pheng v. Minister for Immigration, Local
Government and Ethnic Affairs were adjourned from October 1994 until at
least April 1995. If Amendment No. 3 is enacted into law, which remains the
intention of the Federal Government, any action introduced by the author
seeking damages for unlawful detention would be made meaningless.
5.10 Counsel disputes the State party's argument that article 14, paragraph
3, is not applicable to individuals in administrative detention and refers
in this context to rule 94 of the Standard Minimum Rules for the Treatment
of Prisoners, which equates the rights of persons detained for criminal
offences with those of "civil prisoners".
5.11 Finally, counsel reaffirms that "boat people" constitute a cohesive
group which may be subsumed under the term "other status" within the meaning
of article 2, paragraph 1, of the Covenant: "all share the common
characteristic of having arrived in Australia within a set time period, not
having presented a visa, and having been given a designation by the
Department of Immigration". Those matching this definition must be detained.
To counsel, it is "this immutable characteristic which determines that this
group will be treated differently to other asylum seekers in Australia".
THE COMMITTEE'S ADMISSIBILITY DECISION
6.1 During its 53rd session, the Committee considered the admissibility of
the communication. It noted that several of the events complained of by the
author had occurred prior to the entry into force of the Optional Protocol
for Australia; however, as the State party had not wished to contest the
admissibility of the communication on this ground, and as the author had
remained in custody after the entry into force of the Optional Protocol for
Australia, the Committee was satisfied that the complaint was admissible
ratione temporis. It further acknowledged that the State party had conceded
the admissibility of the author's claim under article 9, paragraph 1.
6.2 The Committee noted the author's claim there was no way to obtain an
effective review of the lawfulness of his detention, contrary to article 9,
paragraph 4, and the State party's challenge of the author's argument. The
Committee considered that the question of whether article 9, paragraph 4,
had been violated in the author's case and whether this provision
encompasses a right of access to legal advice was a question to be examined
on the merits.
6.3 The Committee specifically distinguished this finding from its earlier
decision in the case of V.M.R.B. v. Canada Communication No. 236/1987 (V.M.R.B.
v. Canada), inadmissibility decision of 18 July 1988, paragraph 6.3. since,
in the present case, the author's entitlement to refugee status remained to
be determined at the time of submission of the communication, whereas in the
former case an exclusion order was already in force.
6.4 On the claim under article 9, paragraph 5, the Committee noted that
proceedings challenging the constitutional validity of Section 54RA of the
Migration Act were under way. The author had argued that it would be too
onerous to challenge the constitutionality of this provision and that it
would be meaningless to pursue this remedy, owing to long delays in court
and because of the Government's intention to repeal said remedy. The
Committee noted that mere doubts about the effectiveness of local remedies
or the prospect of financial costs involved did not absolve an author from
pursuing such remedies. As to counsel's reference to draft legislation which
would eliminate the remedy sought, the Committee noted that this had not yet
been enacted into law, and that counsel therefore relied on hypothetical
developments in Australia's legislature. This part of the communication was
accordingly deemed inadmissible under article 5, paragraph 2(b), of the
Optional Protocol.
6.5 As to the claim under article 14, the Committee recalled the State
party's claim that detention of boat people qualified as "administrative
detention" which cannot be subsumed under article 14, paragraph 1, let alone
paragraph 3. The Committee observed that the author's detention, as a matter
of Australian law, neither related to criminal charges against him nor to
the determination of his rights and obligations in a suit at law. It
considered, however, that the issue of whether the proceedings relating to
the determination of the author's status under the Migration Amendment Act
nevertheless fell within the scope of article 14, paragraph 1, was a
question to be considered on the merits.
6.6 Finally, with respect to the claim under article 2, paragraph 1, juncto
articles 9 and 14, the Committee observed that it had not been
substantiated, for purposes of admissibility, that A was discriminated
against on account of his race and/or ethnic origin. It was further clear
that domestic remedies in this respect had not been exhausted, as the matter
of alleged race- or ethnic origin-based discrimination had never been raised
before the courts. In the circumstances, the Committee held this claim to be
inadmissible under article 5, paragraph 2(b), of the Optional Protocol.
6.7 On 4 April 1995, therefore, the Committee declared the communication
admissible in so far as it appeared to raise issues under articles 9,
paragraphs 1 and 4, and 14, paragraph 1.
STATE PARTY'S MERITS SUBMISSION AND COUNSEL'S COMMENTS THEREON
7.1 In its submission under article 4, paragraph 2, of the Optional
Protocol, dated May 1996, the State party supplements the facts of the case
and addresses the claims under articles 9, paragraphs 1 and 4, and 14,
paragraph 1. It recalls that Australia's policy of detention of unauthorised
arrivals is part of its immigration policy. Its rationale is to ensure that
unauthorized entrants do not enter the Australian community until their
alleged entitlement to do so has been properly assessed and found to justify
entry. Detention seeks to ensure that whoever enters Australian territory
without authorization can have any claim to remain in the country examined
and, if the claim is rejected, will be available for removal. The State
party notes that from late 1989, there was a sudden and unprecedented
increase of applications for refugee status from individuals who had landed
on the country's shores. This led to severe delays in the length of
detention of applicants, as well as to reforms in the law and procedures for
determination of on-shore applications for protection visas.
7.2 As to the necessity of detention, the State party recalls that
unauthorised arrivals who landed on Australian shores in 1990 and early 1991
were held in unfenced migrant accommodation hostels with a reporting
requirement. However, security arrangements had to be upgraded, as a result
of the number of detainees who absconded and the difficulty in obtaining
cooperation from local ethnic communities to recover individuals who had not
met their reporting obligations; 59 persons who had arrived by boat escaped
from detention between 1991 and October 1993. Of the individuals who were
allowed to reside in the community while their refugee status applications
were being determined, it is noted that out of a group of 8,000 individuals
who had been refused refugee status, some 27% remained unlawfully on
Australian territory, without any authority to remain.
7.3 The State party points out that its policy of mandatory detention for
certain border claimants should be considered in the light of its full and
detailed consideration of refugee claims, and its extensive opportunities to
challenge adverse decisions on claims to refugee status. Given the
complexity of the case, the time it took to collect information on the
continuously changing situation in Cambodia and for A's legal advisers to
make submissions, the duration of the author's detention was not abusively
long. Furthermore, the conditions of detention of A were not harsh,
prison-like or otherwise unduly restrictive.
7.4 The State party reiterates that the author was informed, during his
first interview after landing in Australia, that he was entitled to seek
legal advice and legal aid. He had continued contact with community support
groups which could have informed him of his entitlement. According to the
State party, legal expertise is unnecessary to make an application for
refugee status, as entitlement is primarily a matter of fact. The State
party underlines that throughout his detention, reasonable facilities for
obtaining legal advice or initiating proceedings would have been available
to the author, had he sought them. After 13 September 1990, the author was a
party to several court actions; according to the State party, there is no
evidence that at any time A failed to obtain legal advice or representation
when he sought it. On balance, the conditions under which the author was
detained did not obstruct his access to legal advice (see below, paragraphs
7.8 to 7.11). The State party maintains that contrary to counsel's
assertion, long delays did not result from any change in legal advisors
after A's consecutive moves between detention centres.
7.5 As to the claim under article 9, paragraph 1, the State party argues
that the author's detention was lawful and not arbitrary on any ground. A
entered Australia without authorization, and subsequently applied for the
right to remain on refugee status basis. Initially, he was held pending
examination of his application. His subsequent detention was related to his
appeals against the decisions refusing his application, which made him
liable to deportation. Detention was considered necessary primarily to
prevent him from absconding into the Australian community.
7.6 The State party notes that the travaux préparatoires to article 9,
paragraph 1, show that the drafters of the Covenant considered that the
notion of "arbitrariness" included "incompatibility with the principles of
justice or with the dignity of the human person". Furthermore, it refers to
the Committee's jurisprudence according to which the notion of arbitrariness
must not be equated with "against the law", but must be interpreted more
broadly as encompassing elements of inappropriateness, injustice and lack of
predictability See Views on communication No. 305/1988 (Hugo van Alphen v.
The Netherlands), adopted on 23 July 1990, paragraph 5.8.. Against this
background, the State party contends, detention in a case such as the
author's was not disproportionate nor unjust; it was also predictable, in
that the applicable Australian law had been widely publicized. To the State
party, counsel's argument that it is inappropriate per se to detain
individuals entering Australia in an unauthorized manner is not borne out by
any of the provisions of the Covenant.
7.7 The State party asserts that the argument that there is a rule of public
international law, be it derived from custom or conventional law, against
the detention of asylum seekers, is not only erroneous and unsupported by
prevailing State practice, but also irrelevant to the considerations of the
Human Rights Committee. The instruments and practice invoked by counsel
-inter alia the 1951 Refugee Convention, Conclusion 44 of the Executive
Committee of the UNHCR, the Convention on the Rights of the Child, the
practice of 12 Western states - are said to fall far short from proving the
existence of a rule of customary international law. In particular, the State
party disagrees with the suggestion that rules or standards which are said
to exist under customary international law or under other international
agreements may be imported into the Covenant. The State party concludes that
detention for purposes of exclusion from the country, for the investigation
of protection claims, and for handling refugee or entry permit applications
and protecting public security, is entirely compatible with article 9,
paragraph 1.
7.8 As to the claim under article 9, paragraph 4, the State party reaffirms
that it was always open to the author to file an action challenging the
lawfulness of his detention, e.g. by seeking a ruling from the courts as to
whether his detention was compatible with Australian law. The courts had the
power to release A, if they determined that he was being unlawfully
detained. In that respect, the State party takes issue with the Committee's
admissibility considerations relating to article 9, paragraph 4. For the
State party, this provision does not require that State party courts must
always be free to substitute their discretion for the discretion of
Parliament, in as much as detention is concerned: "[T]he Covenant does not
require that a court must be able to order the release of a detainee, even
if the detention was according to law".
7.9 Furthermore, the State party specifically rejects the notion that
article 9, paragraph 4, implicitly includes the same (procedural) guarantees
for provision of legal assistance as are set out in article 14, paragraph 3:
in its opinion, a distinction must be drawn between the provision of free
legal assistance in terms of article 14, paragraph 3, and allowing access to
legal assistance. In any event, it continues, there is no substance to the
author's allegation that his rights under article 9, paragraph 4, were
impeded by an alleged absence of effective access to legal advice. The
author "had ample access to legal advice and representation for the purpose
of challenging the lawfulness of his detention", and was legally represented
when he brought such a challenge.
7.10 In support of its argument, the State party provides a detailed
chronology of attempts to inform A of his right to legal advice:
(a) The form used for applications for refugee status advises applicants of
their right to have a legal advisor present during interview and to ask for
legal aid assistance. The application form was read to the author on 9
December 1989 at Willie's Creek in the Kampuchean language by an
interpreter, completed and signed by the author. The author did not request
legal advice or access to a lawyer at this time;
(b) During his first six months of detention, the author had contact with
members of the Australian community, as well as with the Cambodian, Khmer
and Indo-Chinese communities in Sydney, which provided some support to the
Pender Bay detainees. These groups would have been able to provide access to
legal advisers;
(c) In June/July 1990, the Jesuit Refugee Service approached the Legal Aid
Commission of New South Wales (LACNSW) to represent the Pender Bay
detainees. On 11 September 1990, A authorised LACNSW to represent him. Prior
to LACNSW's involvement, the Department of Immigration and Ethnic Affairs
(DIEA) had planned to move the Pender Bay detainees from Sydney in early
October 1990. To ensure continued access to their legal representatives, the
group was not moved to Darwin until 20 May 1991;
(d) At the time of the move to Darwin, LACNSW advised the Northern Territory
Legal Aid Commission (NTLAC) that the group was being relocated. NTLAC
lawyers were at the Curragundi camp (near Darwin) approximately one week
after the Pender Bay group's arrival. When A was moved to Port Hedland on 21
October 1991, NTLAC continued to act on his behalf until 29 January 1992,
when it advised DIEA that it could no longer represent the Pender Bay
detainees. On 3 February 1992, the Refugee Council of Australia (RCoA) took
over the function of representatives of all Pender Bay detainees;
(e) The NTLAC was retained by members of the Pender Bay group for Federal
Court proceedings in April 1992. RCoA continued to provide advice in
relation to the refugee status applications.
7.11 The State party points out that prior to 1991/92, funds for legal
assistance were not specifically earmarked for asylum seekers in detention,
but individual applicants had access to legal aid through the normal
channels, with NGOs also providing support. Since 1992, legal assistance is
provided to applicants through contractual agreements between DIEA and RCoA
and Australian Lawyers for Refugees (ALR). The State party notes that in the
proceedings seeking to overturn the decision which refused him refugee
status, A was legally represented. His advisers included not only the NSWLAC
and the NTLAC, but also Refugee Advice Casework and two large law firms.
7.12 The State party contests that delays in the hearing of A's case were
attributable to his losing contact with legal advisors after each move
between detention centres. When the author was removed from Sydney to
Curragundi on 21 May 1991, the NSWLAC immediately advised the NTLAC, and on
11 June, NTLAC forwarded to the Refugee Status Review Committee (RSRC) an
application for review of refusal to grant refugee status to members of the
group. When the author was removed to Port Hedland on 21 October 1991, the
application for review was under consideration by the RSRC, and there was no
need for immediate action by the author's legal advisors. When RSRC's
recommendation to refuse the application was notified to NTLAC on 22 January
1992, NTLAC requested a reasonable time for the author to get legal
assistance. The RCoA arrived in Port Hedland on 3 February 1992 to represent
the author, and lodged a response to RSRC's recommendation on 3 March 1992.
The State party contends that nothing suggests that requests for review in
these two cases would have been lodged much earlier had there been no change
in legal representation.
7.13 Finally, the State party denies that there is any evidence that the
remote location of the Port Hedland Detention Centre was such as to obstruct
access to legal assistance. There are forty-two flights to and from Perth
each week, with a flight time of 130 to 140 minutes; early morning flights
would enable lawyers to be in Port Hedland before 9 a.m. The State party
notes that a team of six lawyers and six interpreters, contracted by RCoA
with funding from DIEA, lived in Port Hedland for most of 1992 to provide
legal advice to the detainees.
7.14 As to article 14, paragraph 1, the State party contends that no
argument can be made that there was a breach of the author's right to
equality before the courts: in particular, he was not subject to any form of
discrimination on the grounds that he was an alien. It notes that if the
Committee were to consider that equality before the courts encompasses a
right to (obligatory) legal advice and representation, it must be recalled
that the author's access to such advice was never, at any stage during his
detention, impeded (see paragraphs 7.9 and 7.10 above).
7.15 The State party affirms that the second and third sentences of article
14, paragraph 1, do not apply to refugee status determination proceedings.
Such proceedings cannot be described as a "determination ... of his rights
and obligations in a suit at law". Reference is made in this context to
decisions of the European Commission of Human Rights, which are said to
support this conclusion See X, Y, Z and W v. United Kingdom (Application No.
3325/67); and Agee v. United Kingdom (Application No. 7729/76).. The State
party fully accepts that aliens subject to its jurisdiction may enjoy the
protection of Covenant rights: "However, in determining which provisions of
the Covenant apply in such circumstances, it is necessary to examine their
terms. This interpretation is supported by the terms of the second and third
sentences of article 14, paragraph 1, which are limited to certain types of
proceedings determining certain types of rights, which are not those
involved in [the] case". If the Covenant lays down procedural guarantees for
the determination of entitlement to refugee status, those in article 13
appear more appropriate to the State party than those in article 14,
paragraph 1.
7.16 If the Committee were to consider that the second and third sentences
of article 14, paragraph 1, are applicable to the author's case, then the
State party notes that
- hearings in all cases to which A was a party were conducted by competent,
independent and impartial tribunals;
- judicial hearings on review were conducted in public, and such decisions
as were rendered were made public;
- the administrative proceedings to determine whether the Minister for
Immigration, Local Government and Ethnic Affairs should grant refugee status
were held in camera, but the State party argues that privacy of these
administrative proceedings was justified by considerations of ordre public,
because it would be harmful to refugee status applicants for their cases to
be made public;
- such decision of administrative tribunals as were handed down in the
author's case were not made public. To the Australian Government, the
limited exceptions to the rule of publicity of judgments enunciated in
article 14, paragraph 1, indicate that the notion of "suit at law" was not
intended to apply to the administrative determination of applications for
refugee status;
- A had at all times access to legal representation and advice;
- finally, given the complexity of the case and of the legal proceedings
involving the author, the State party reiterates that the delays encountered
in the case were not such as to amount to a breach of the right to a fair
hearing.
8.1 In his comments, dated 22 August 1996, counsel takes issue with the
State party's explanation of the rationale for immigration detention. At the
time of the author's detention, the only category of unauthorized border
arrivals in Australia who were mandatorily detained were so-called "boat
people". He submits that the Australian authorities had an unjustified fear
of a flood of unauthorized boat arrivals, and that the policy of mandatory
detention was used as a form of deterrence. As to the argument that there
was an "unprecedented influx" of boat people into Australia from the end of
1989, counsel notes that the 33,414 refugee applications from 1989 to 1993
must be put into perspective - the figure pales in comparison to the number
of refugee applications filed in many Western European countries over the
same period. Australia remains the only Western asylum country with a policy
of mandatory, non-reviewable detention.
8.2 In any way, counsel adds, lack of preparedness and adequate resources
cannot justify a continued breach of the right to be free from arbitrary
detention; he refers to the Committee's jurisprudence that lack of budgetary
appropriations for the administration of criminal justice does not justify a
four-year period of pre-trial detention. It is submitted that the 77-week
period it took for the primary processing of the author's asylum
application, while he was detained, was due to inadequate resources.
8.3 Counsel rejects the State party's attempts to attribute some of the
delays in the handling of the case to the author and his advisers. He
reiterates that Australia mishandled A's application, and maintains that
there was no excuse for the authorities to take seven months for a primary
decision on his application, which was not even notified to him, another
eight months for a new primary decision, six months for a review decision,
and approximately five months for a final rejection, which could not be
defended in court. Counsel suggests that it is less important to determine
why delays occurred, but to ask why the author was detained throughout the
period when his application was being considered: when the original decision
was referred back to immigration authorities after Australia could not
defend it in court, the State party took the unprecedented step of passing
special legislation (Migration Amendment Act 1992), with the sole purpose of
keeping the author and other asylum seekers in detention.
8.4 As to the question of the author's access to legal advice, counsel
affirms that contrary to the State party's assertion, legal expertise is
necessary when applying for refugee status, as well as for any appeal
processes - had the author had no access to lawyers, he would have been
deported from Australia in early 1992. Counsel considers it relevant that
the current practice is for Australian authorities to assign legal
assistance to asylum seekers immediately when they indicate that they wish
to seek asylum. It is submitted that A should have been provided with a
lawyer when he requested asylum in December 1989.
8.5 Counsel reiterates that the author had no contact with a representative
for nearly 10 months after his arrival, i.e. until September 1990, although
a final decision had been made on his claim in June 1990. When, in 1992, he
did seek legal aid to obtain judicial review of the decision rejecting his
application for refugee status, his request was refused. Resort to pro bono
representation was only obtained when legal assistance was refused, and in
counsel's opinion, it is erroneous to argue that state-sponsored legal
assistance was unnecessary because pro bono assistance was available; in
fact, pro bono assistance had to be found because legal aid had already been
refused.
8.6 Counsel acknowledges that many flights are indeed available to and from
Port Hedland, but points out that these connections are expensive. He
maintains that the isolation of Port Hedland did in fact restrict access to
legal advice; this factor was raised repeatedly before the Joint Standing
Committee on Migration which, while conceding that there were some
difficulties, rejected any recommendation that the detention facility be
moved.
8.7 On the issue of the "arbitrariness" of the author's detention, counsel
notes that the State party incorrectly seeks to blame the author for the
prolongation of his detention. In this context, he argues that A should not
have been penalized by prolonged detention for the exercise of his legal
rights. He further denies that the detention was justified because of a
perceived likelihood that the author might abscond from the detention
centre; he points out that the State party has been unable to make more than
generalized assertions on this issue. Indeed, he submits, the consequences
of long-term custody are so severe that the burden of proof for the
justification of detention lies with the State authority in the particular
circumstances of each case; the burden of proof is not met on the basis of
generalised claims that the individual may abscond if released.
8.8 Counsel reaffirms that there is a rule of customary international law to
the effect that asylum seekers should not be detained for prolonged periods,
and that the pronouncements of authoritative international bodies, such as
UNHCR, and the practice of other states, all point to the existence of such
a rule.
8.9 Concerning the State party's claim that the author always had the
opportunity to challenge the lawfulness of his detention, and that such a
challenge was not necessarily bound to fail, counsel observes the following:
- While the High Court held Section 54R to exceed the State party's
legislative power and therefore unconstitutional, the unenforceability of
the provision does not mean that, once a person is a "designated person"
within the meaning of the Migration Act, he can realistically challenge the
detention. It simply means that Parliament does not have the power, by
virtue of Section 54R, to direct the Judiciary not to release a designated
person. In practice, however, if someone fits the definition of a
"designated person", there still is no possibility of obtaining release by
the courts.
- By reference to Section 54Q of the Act (now Section 182), under which
detention provisions cease to apply to a designated person who has been in
immigration detention for more than 273 days, it is submitted that a period
of 273 days during which there is no possibility of release by the courts is
per se arbitrary within the meaning of article 9, paragraph 1. According to
counsel, it is virtually impossible for a designated person to be released
even after the 273 calendar days since, under Section 54Q, the countdown
towards the 273 day cut-off date ceases where the Department of Immigration
is awaiting information from individuals outside its control.
8.10 Counsel rejects the argument that since the guarantees of article 14,
paragraph 3(d), are not spelled out in article 9, paragraph 4, A had no
right to access to state-funded legal aid. He argues that immigration
detention is a quasi-criminal form of detention which in his opinion
requires the procedural protection spelled out in article 14, paragraph 3.
In this context, he notes that other international instruments, such as the
Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment (Principle 17) recognize that all persons
subjected to any form of detention are entitled to have access to legal
advice, and be assigned legal advisers without payment where the interests
of justice so require.
8.11 Finally, counsel reaffirms that the proceedings concerning A's status
under the Migration Amendment Act can be subsumed under article 14,
paragraph 1: (even) during its administrative stage, the author's
application for refugee status came within the scope of article 14. The
exercise of his rights to judicial review in relation to his application for
refugee status, as well as his challenge to detention in the local courts
gave rise to a "suit at law". In this connection, counsel contends that by
initiating proceedings against the Department of Immigration, with a view to
reviewing the decisions to refuse his application for refugee status, the
proceedings went beyond any review on the merits of his application and
became a civil dispute about the Department's failure to guarantee him
procedural fairness. And by filing proceedings seeking his release, the
author disputed the constitutionality of the Migration Act's new provisions
under which he was held - again, this is said to have been a civil dispute.
Examination of the merits
9.1 The Human Rights Committee has examined the present communication in the
light of all the information placed before it by the parties, as it is
required to do under article 5, paragraph 1, of the Optional Protocol to the
Covenant. Three questions are to be determined on their merits:
(a) whether the prolonged detention of the author, pending determination of
his entitlement to refugee status, was "arbitrary" within the meaning of
article 9, paragraph 1;
(b) whether the alleged impossibility to challenge the lawfulness of the
author's detention and his alleged lack of access to legal advice was in
violation of article 9, paragraph 4; and
(c) whether the proceedings concerning his application for refugee status
fall within the scope of application of article 14, paragraph 1 and whether,
in the affirmative, there has been a violation of article 14, paragraph 1.
9.2 On the first question, the Committee recalls that the notion of
"arbitrariness" must not be equated with "against the law" but be
interpreted more broadly to include such elements as inappropriateness and
injustice. Furthermore, remand in custody could be considered arbitrary if
it is not necessary in all the circumstances of the case, for example to
prevent flight or interference with evidence: the element of proportionality
becomes relevant in this context. The State party however, seeks to justify
the author's detention by the fact that he entered Australia unlawfully and
by the perceived incentive for the applicant to abscond if left in liberty.
The question for the Committee is whether these grounds are sufficient to
justify indefinite and prolonged detention.
9.3 The Committee agrees that there is no basis for the author's claim that
it is per se arbitrary to detain individuals requesting asylum. Nor can it
find any support for the contention that there is a rule of customary
international law which would render all such detention arbitrary.
9.4. The Committee observes however, that every decision to keep a person in
detention should be open to review periodically so that the grounds
justifying the detention can be assessed. In any event, detention should not
continue beyond the period for which the State can provide appropriate
justification. For example, the fact of illegal entry may indicate a need
for investigation and there may be other factors particular to the
individual, such as the likelihood of absconding and lack of cooperation,
which may justify detention for a period. Without such factors detention may
be considered arbitrary, even if entry was illegal. In the instant case, the
State party has not advanced any grounds particular to the author's case,
which would justify his continued detention for a period of four years,
during which he was shifted around between different detention centres. The
Committee therefore concludes that the author's detention for a period of
over four years was arbitrary within the meaning of article 9, paragraph 1.
9.5 The Committee observes that the author could, in principle, have applied
to the court for review of the grounds of his detention before the enactment
of the Migration Amendment Act of 5 May 1992; after that date, the domestic
courts retained that power with a view to ordering the release of a person
if they found the detention to be unlawful under Australian law. In effect,
however, the courts' control and power to order the release of an individual
was limited to an assessment of whether this individual was a "designated
person" within the meaning of the Migration Amendment Act. If the criteria
for such determination were met, the courts had no power to review the
continued detention of an individual and to order his/her release. In the
Committee's opinion, court review of the lawfulness of detention under
article 9, paragraph 4, which must include the possibility of ordering
release, is not limited to mere compliance of the detention with domestic
law. While domestic legal systems may institute differing methods for
ensuring court review of administrative detention, what is decisive for the
purposes of article 9, paragraph 4, is that such review is, in its effects,
real and not merely formal. By stipulating that the court must have the
power to order release "if the detention is not lawful", article 9,
paragraph 4, requires that the court be empowered to order release, if the
detention is incompatible with the requirements in article 9, paragraph 1,
or in other provisions of the Covenant. This conclusion is supported by
article 9, paragraph 5, which obviously governs the granting of compensation
for detention that is "unlawful" either under the terms of domestic law or
within the meaning of the Covenant. As the State party's submissions in the
instant case show that court review available to A was, in fact, limited to
a formal assessment of the self-evident fact that he was indeed a
"designated person" within the meaning of the Migration Amendment Act, the
Committee concludes that the author's right, under article 9, paragraph 4,
to have his detention reviewed by a court, was violated.
9.6 As regards the author's claim that article 9, paragraph 4, encompasses a
right to legal assistance in order to have access to the courts, the
Committee notes from the material before it that the author was entitled to
legal assistance from the day he requested asylum and would have had access
to it, had he requested it. Indeed, the author was informed on 9 December
1989, in the attachment to the form he signed on that day, of his right to
legal assistance. This form was read in its entirety to him in Kampuchean,
his own language, by a certified interpreter. That the author did not avail
himself of this possibility at that point in time cannot be held against the
State party. Subsequently (as of 13 September 1990), the author sought legal
advice and received legal assistance whenever requesting it. That A was
moved repeatedly between detention centres and was obliged to change his
legal representatives cannot detract from the fact that he retained access
to legal advisers; that this access was inconvenient, notably because of the
remote location of Port Hedland, does not, in the Committee's opinion, raise
an issue under article 9, paragraph 4.
9.7 In the circumstances of the case and given the above findings, the
Committee need not consider whether an issue under article 14, paragraph 1,
of the Covenant arises.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the Covenant, concludes that the facts as found by the
Committee reveal a breach by Australia of article 9, paragraphs 1 and 4, and
article 2, paragraph 3, of the Covenant.
11. Under article 2, paragraph 3, of the Covenant, the author is entitled to
an effective remedy. In the Committee's opinion, this should include
adequate compensation for the length of the detention to which A was
subjected.
12. Bearing in mind that, by becoming a State party to the Optional
Protocol, the State party has recognized the competence of the Committee to
determine whether there has been a violation of the Covenant or not and
that, pursuant to article 2 of the Covenant, the State party has undertaken
to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant and to provide an
effective and enforceable remedy in case a violation has been established,
the Committee wishes to receive from the State party, within 90 days,
information about the measures taken to give effect to its Views.
Individual opinion by Prafullachandra N. Bhagwati (concurring)
I am in agreement with the opinion rendered by the Committee save and except
that in regard to paragraph 9.5, I would prefer the following formulation:
"9.5 The Committee observes that the author could, in principle, have
applied to the court for review of the grounds of his detention before the
enactment of the Migration Amendment Act on 5 May 1992; after that date, the
domestic courts retained the power of judicial review of detention with a
view to ordering the release of a person if they found the detention to be
unlawful. But with regard to a particular category of persons falling within
the meaning of the expression 'designated person' in the Migration Amendment
Act, the power of the courts to review the lawfulness of detention and order
release of the detention was found unlawful, was taken away by Section 54R
of the Migration Amendment Act. If the detained person was a 'designated
person' the courts had no power to review the continued detention of such
person and order his/her release. The only judicial review available in such
a case was limited to a determination of the fact whether the detained
person was a 'designated person' and if he was, the court could not proceed
further to review the lawfulness of his detention and order his/her release.
The author in the present case, being admittedly a 'designated person', was
barred by Section 54R of the Migration Amendment Act from challenging the
lawfulness of his continued detention and seeking his release by the
courts."
But it was argued on behalf of the State that all that article 9, paragraph
4, of the Covenant requires is that the person detained must have the right
and opportunity to take proceedings before a court for review of lawfulness
of his/her detention and lawfulness must be limited merely to compliance of
the detention with domestic law. The only inquiry which the detained person
should be entitled to ask the court to make under article 9, paragraph 4, is
whether the detention is in accordance with domestic law, whatever the
domestic law may be. But this would be placing too narrow an interpretation
on the language of article 9, paragraph 4, which embodies a human right. It
would not be right to adopt an interpretation which will attenuate a human
right. It must be interpreted broadly and expansively. The interpretation
contended for by the State will make it possible for the State to pass a
domestic law virtually negating the right under article 9, paragraph 4, and
making non-sense of it. The State could, in that event, pass a domestic law
validating a particular category of detentions and a detained person falling
within that category would be effectively deprived of his/her right under
article 9, paragraph 4. I would therefore place a broad interpretation on
the word "lawful" which would carry out the object and purpose of the
Covenant and in my view, article 9, paragraph 4, requires that the court be
empowered to order release "if the detention is not lawful", that is, the
detention is arbitrary or incompatible with the requirement of article 9,
paragraph 1, or with other provisions of the Covenant. It is no doubt true
that the drafters of the Covenant have used the word "arbitrary" along with
"unlawful" in article 17 while the word "arbitrary" is absent in article 9,
paragraph 4. But it is elementary that detention which is arbitrary is
unlawful or in other words, unjustified by law. Moreover the word
"lawfulness" which calls for interpretation in article 9, paragraph 4,
occurs in the Covenant and must therefore be interpreted in the context of
the provisions of the Covenant and having regard to the object and purpose
of the Covenant. This conclusion is furthermore supported by article 9,
paragraph 5, which governs the granting of compensation for detention
"unlawful" either under the terms of the domestic law or within the meaning
of the Covenant or as being arbitrary. Since the author in the present case
was totally barred by Section 54R of the Migration Amendment Act from
challenging the "lawfulness" of his detention and seeking his release, his
right under article 9, paragraph 4, was violated.
Prafullachandra N. Bhagwati [signed] |
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