Saed Shams and others v Australia

Saed Shams and others v Australia

 

Right to liberty and security of person – whether lengthy immigration detention arbitrary; whether detention subject to proper review by court

The authors of the communications were Iranian nationals, all of whom arrived in Australia from Iran by boat. Upon arrival, the authors were classified as ‘unlawful non-citizens’ and placed in immigration detention until they received visas to remain in Australia. The authors remained in immigration detention for at least three, and in some cases over four, years before receiving either a permanent humanitarian visa or a temporary protection visa.

Before the Committee the authors alleged that the circumstances and conditions of their detention gave rise to violations of Articles 7, 9(1), 9(4) and 10(1) of the 1966 International Covenant on Civil and Political Rights .4 In relation to Article 7 (inhuman and degrading treatment) and Article 10(1) (right of persons deprived of their liberty to be treated with humanity), the authors alleged that their rights under this Article were violated both by the mandatory nature of their detention and by the conditions in which they were held while in detention (including alleged assault, incommunicado detention, denial of medication and denial of regular exercise). On the issue of whether mandatory detention in itself could violate Articles 7 and 10(1), the Committee found that the authors had failed to substantiate their claims that this was the case, and that this part of the communications was therefore inadmissible. On the issue of whether the conditions in which the authors were held violated the relevant Articles, the Committee found, with respect to all of the authors except for Mr Shams, that the claims were inadmissible for failure to exhaust domestic remedies. In relation to Mr Shams, the Committee found that the claims were not sufficiently substantiated and were therefore inadmissible. The Committee did, however, note that it did not agree with Australia’s view that incommunicado detention occurs only where the outside world is ignorant of a detainee’s whereabouts. In doing so, the Committee effectively indicated that if a detainee cannot contact those outside the detention facility, this would be sufficient to amount to incommunicado detention, even if the detainee’s whereabouts were known to those ‘outside’.

The Committee considered the authors’ claims under Articles 9(1) and 9(4) to be admissible. Considering the merits of these claims, the Committee agreed with the authors’ argument that the prolonged duration of their detention rendered such detention ‘arbitrary’, in violation of Article 9(1). The Committee reaffirmed its views in A v Australia5 that detention should not extend beyond the period for which the state can provide appropriate justification, and noted that, in this case, Australia had not given reasons which would justify the authors’ detention for such prolonged periods of time. In particular, Australia had not demonstrated that ‘there were no less invasive means’ of dealing with the authors’ situation.6 Accordingly, the Committee found that Article 9(1) had been violated.

The Committee also agreed with the authors’ argument that, contrary to Article 9(4), they were deprived of the opportunity to contest their detention before a court with the power to order their release if the detention was unlawful. Taking account of the fact that the migration legislation rendered detention mandatory in the case of ‘unlawful non-citizens’, and the fact that the High Court in the Al-Kateb Case7 had upheld the constitutionality of the mandatory detention legislation, it was clear that the courts could not review the decision to place the authors in detention, once it was established that the authors were ‘unlawful non-citizens’. The Committee again reaffirmed its views in A v Australia,8 noting that any court review of lawfulness under Article 9(4) is not limited to lawfulness under domestic law. Rather, the court must also be empowered to order release if the detention is incompatible with Article 9(1) or any other provision of the Covenant. As a result, in the authors’ cases, the Committee considered that ‘the inability of the judiciary to challenge a detention that was, or had become, contrary to article 9, paragraph 1, constitutes a violation of article 9, paragraph 4’.9

6 UN Doc CCPR/C/90/D/1255, 1256, 1259, 1260, 1266, 1268, 1270 & 1288/2004 (2007), [7.2].

7 Al-Kateb v Godwin (2004) 219 CLR 5.

8 UN Doc CCPR/C/59/D/560/1993 (1997).

9 UN Doc CCPR/C/90/D/1255, 1256, 1259, 1260, 1266, 1268, 1270 & 1288/2004 (2007), [7.3].

Conclusion

Notes

See Also

References and Further Reading

About the Author/s and Reviewer/s

Author: international

Mentioned in these Entries

International Covenant on Civil and Political Rights.


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