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AusHRC 45: Mr Al Jenabi v Commonwealth of Australia (Department of Immigration and Citizenship)

2011

Mr Al Jenabi v

Commonwealth of Australia

(Department of Immigration and Citizenship)

Report into arbitrary detention

[2011] AusHRC 45

July 2011

The Hon Robert McClelland MP

Attorney General

Parliament
House

Canberra ACT 2600

Dear Attorney

I have completed my report of an inquiry into the complaint made pursuant to
section 11(1)(f)(ii) of the Australian Human Rights Commission Act 1986 (Cth) by Mr Al Jenabi.

I attach my report of an inquiry into the complaint made pursuant to section
11(1)(f)(ii) of the Australian Human Rights Commission Act 1986 (Cth) by
Mr Al Jenabi.

I have found that the acts of the Commonwealth breached
Mr Al Jenabi’s right not to be subject to arbitrary detention
protected by article 9(1) of the International Covenant on Civil and
Political Rights.

By letter dated 17 May 2011 the Department of Immigration and Citizenship
provided the following response to my findings and recommendations:

The Department’s response on behalf of the Commonwealth of Australia to
the findings and recommendations of the AHRC withregard to
Mr Ali Al Jenabi

1. That payment of compensation in the amount of $450,000 is
appropriate

While we note your findings, in the Department’s view
Mr Al Jenabi was detained lawfully in accordance with the Migration
Act 1958 (Cth) (Migration Act) and his detention was not arbitrary.

The Department notes that Mr Al Jenabi continued to be detained
under section 189 of the Migration Act while the department was working to
finalise his protection visa application. As we have advised previously, a
primary impediment to the resolution of Mr Al Jenabi’s
protection visa process was that as a result of his criminal history, he did not
satisfy Public Interest Criterion 4001, the character requirements. The
Department’s view is that the assessment of a non-citizen’s risk to
the Australian community; by seeking to obtain a full picture of their criminal
history prior to allowing them to enter the Australian community, is a
legitimate and justifiable basis for the continuation of detention and is not
contrary to Article 9 of the ICCPR. The Department would like to affirm its
position that as soon as Mr Al Jenabi’s visa process was
finalised through refusal to grant a protection visa under section 501 of the
Migration Act by the former Minister, he was released from immigration detention
on a Removal Pending bridging visa pending his availability for removal.

Accordingly, the Department advises the Commission that there will be no
action taken with regard to this recommendation.

2. That it is appropriate that the Commonwealth provide a formal written
apology to Mr Al Jenabi for the breaches of his human
rights identified in this report.

The Department notes your recommendation, however, in line with the
Department’s position regarding Mr Al Jenabi’s detention,
the Department advises the Commission that there will no action [sic] taken with
regard to this recommendation.

Other Recommendations

The Department notes that the Commission has suggested policy reform in
number [sic] of areas associated with:

  1. open periodic review and detention placement decisions for clients in
    immigration detention;

  2. that the Ministerial guidelines be reviewed in regards to risk; and

  3. that decisions not to refer a case to the Minister be made after an
    individualised assessment and based on evidence.

The Department
agrees with the general principle of ongoing policy reform to ensure that
departmental decision making remains a robust and evidenced based process.

There is now a rigorous system of regular reviews for each client in
detention which takes into account the client’s progress to status
resolution as well as their health and the appropriateness of their detention
placement.

Case managers, or another senior officer, review their client’s case
regularly to ensure that the right level of support is in place to facilitate
status resolution. This review includes consideration of such things as whether
detention continues to be appropriate, whether the right level of case
management intervention is being applied as well as a reconsideration of the
client’s detention placement taking into account health and well being
[sic], family structure, community support as well as availability of
accommodation and any security factors. If there are any concerns about the
lawfulness of the detention the case is referred to a Detention Review Manager
who undertakes a full lawfulness review.

In regard to a review of the ministerial guidelines, the Department would
like to advise that the s197AB guidelines were revised in 2009 and endorsed by
the former Minister. Ministerial intervention guidelines are periodically
reviewed to ensure they are consistent with the Minister’s wishes for the
use of their non-compellable and non-delegable powers. Under the current
guidelines the Department assesses individual clients against the set of
vulnerability indicators. Clients who are single adult males are not, on that
basis, precluded from consideration under the guidelines.

Pursuant to section 11(1)(f)(ii) of the Australian Human Rights Commission
Act 1986 (Cth) please find enclosed a copy of my report.

Yours sincerely

Catherine Branson

President

Australian Human Rights
Commission

Contents

1 Introduction

  1. This is a report of my inquiry into the detention of Mr Al Jenabi
    and his right to be free from arbitrary detention.

  2. I have found that the failure by the Commonwealth to place
    Mr Al Jenabi in a less restrictive form of detention than being held
    in Villawood Immigration Detention Centre (VIDC) amounts to a breach of his
    right not to be arbitrarily detained.

2 Summary of
findings

2.1 Relevant acts and
practices under the Australian Human Rights Commission Act 1986 (Cth)

  1. I find that the Commonwealth’s failure to place Mr Al Jenabi
    in a less restrictive form of detention is an ‘act’ for the purpose
    of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The
    Minister for Immigration and Citizenship (the Minister) could have placed
    Mr Al Jenabi in community detention or in a place other than a
    detention centre but did not do so.

2.2 Detention in
VIDC

  1. I find that the failure of the Commonwealth to place Mr Al Jenabi
    in community detention or another less restrictive form of detention was
    inconsistent with the prohibition of arbitrary detention in article 9(1) of
    the International Covenant on Civil and Political Rights (ICCPR).

  2. I find that Mr Al Jenabi should have been removed from VIDC
    through either the grant of a bridging visa or residence determination on or
    about 10 October 2006 when Mr Al Jenabi cleared his Australian
    Security Intelligence Organisation (ASIO) assessment. This is particularly so
    given there was no realistic prospect of removing Mr Al Jenabi to Iraq
    at that time.

3 The complaint by Mr Al
Jenabi

3.1 Background

  1. On or about 15 November 2008 Mr Al Jenabi made a complaint to the
    Commission.

  2. Both Mr Al Jenabi and the Commonwealth have provided submissions
    in this matter.

  3. Mr Al Jenabi and the Commonwealth have also had the opportunity to
    respond to my tentative view dated 10 March 2010.

  4. My function in investigating complaints of breaches of human rights is to
    determine whether the Commonwealth has acted consistently with any human right
    within the meaning of the AHRC Act which includes those rights defined and
    protected by the ICCPR.

  5. It follows that the content and scope of the rights protected by the ICCPR
    should be interpreted and understood by reference to the text of the relevant
    articles of that international instrument and by international jurisprudence
    about their interpretation.

3.2 Findings of
Fact

  1. I consider the following statements about the circumstances which have given
    rise to Mr Al Jenabi’s complaint to be uncontentious.

  2. Mr Al Jenabi is a national of Iraq. On 22 February 2003 he was
    extradited from Thailand and arrived in Australia on a Criminal Justice Entry
    visa to face people smuggling charges under the Migration Act 1958 (Cth)
    (Migration Act).

  3. Mr Al Jenabi was convicted of people smuggling offences in the
    Supreme Court of the Northern Territory and on 21 September 2004 was sentenced
    to 8 years imprisonment with a non-parole period of 4
    years.[1]

  4. On 15 June 2006 Mr Al Jenabi’s imprisonment sentence ended
    and his Criminal Justice Entry visa expired. On 16 June 2006
    Mr Al Jenabi was detained at Darwin Detention Centre under s 189
    of the Migration Act. On 18 June 2006 Mr Al Jenabi was transferred to
    VIDC where he was detained until his release on 7 February 2008 – a period
    of approximately 20 months.

  5. On 16 June 2006 Mr Al Jenabi lodged an application for a
    Protection (Class XA) visa (Subclass 866) and a Bridging visa E. The application
    was treated as an application for a Temporary Protection visa (Subclass 785)
    because Mr Al Jenabi had a criminal conviction in the prior four
    years.[2]

  6. On 10 July 2006, the Minister refused Mr Al Jenabi a Bridging
    visa E on the basis that he had a ‘substantial criminal record’
    under s 501 of the Migration Act.

  7. On 10 October 2006 Mr Al Jenabi was assessed by ASIO to not be
    directly or indirectly a risk to Australian national
    security.[3]

  8. Mr Al Jenabi made an application for a residence determination
    under s 197AB of the Migration Act in July 2007. A case officer assessed
    Mr Al Jenabi’s case as ‘not meeting the guidelines’
    and therefore did not refer Mr Al Jenabi’s application to the
    Minister.

  9. The Federal Magistrates Court on 17 January 2008 made an order for mandamus
    requiring the Minister to determine Mr Al Jenabi’s application
    for a Temporary Protection visa according to
    law.[4]

  10. A decision to refuse Mr Al Jenabi’s application for a
    Temporary Protection visa was made on 7 February 2008. On the same day,
    Mr Al Jenabi was granted a Removal Pending Bridging visa under
    s 195A of the Migration Act and released from immigration
    detention.

4 The Commission’s
human rights and inquiry and complaints function

  1. Section 11(1)(f) of the AHRC Act gives the Commission the function of
    inquiring into any act or practice that may be inconsistent with or contrary to
    any human right.

  2. Section 20(1)(b) of the AHRC Act requires the Commission to perform that
    function when a complaint is made to it in writing alleging such an act or
    practice.

  3. Section 8(6) of the AHRC Act provides that the functions of the Commission
    under s 11(1)(f) are to be performed by the President.

4.1 The Commission can
inquire into acs or practices of the Commonwealth

  1. The expressions ‘act’ and ‘practice’ are defined in
    s 3(1) of the AHRC Act to include an act done or a practice engaged in
    ‘by or on behalf of the Commonwealth’ or under an enactment.

  2. Section 3(3) of the AHRC Act provides that a reference to, or to the doing
    of, an act includes a reference to a refusal or failure to do an act.

  3. As a judge of the Federal Court in Secretary, Department of Defence v
    HREOC, Burgess & Ors     (Burgess),[5] I found that the
    Commission could not, in conducting its inquiry, disregard the legal obligations
    of the Secretary in exercising a statutory power. Therefore, if a law requires
    that the act or practice be done by or on behalf of the Commonwealth, its
    officers or agents, and there is no discretion involved, the act or practice
    done pursuant to that statutory provision will be outside the scope of the
    Commission’s human rights inquiry
    jurisdiction.[6]

  4. I therefore proceed on the basis that an ‘act’ or
    ‘practice’ only invokes the human rights complaints jurisdiction of
    the Commission where the relevant act or practice is within the discretion of
    the Commonwealth, its officers or agents.

  5. Accordingly, neither the decision to detain a person where required under
    s 189 of the Migration Act, nor his or her continuing immigration detention
    until either a visa is granted or he or she is removed under s 196 of the
    Migration Act, is an ‘act’ or ‘practice’ for the
    purposes of the AHRC Act.

  6. However, all ‘discretionary’ acts of the Commonwealth are
    ‘acts’ or ‘practices’ within the meaning of the AHRC
    Act.

  7. Consistent with the Commission’s views in Badrae v Commonwealth
    (Department of Immigration and Multicultural and Indigenous
    Affairs),    [7] the scope of the
    Commission’s jurisdiction is sufficiently broad to cover failures or
    refusals to act, even where a decision-maker is under no statutory duty to
    exercise a particular power or function.

  8. Therefore the failure to remove Mr Al Jenabi from the detention
    centre environment where this is within the discretion of the Commonwealth falls
    within the Commission’s inquiry jurisdiction.

4.2 ‘Human
rights’ relevant to this complaint

(a) Article
9(1)
  1. Article 9(1) of the ICCPR provides:

    Everyone has the right to
    liberty and security of person. No one shall be subjected to arbitrary arrest or
    detention. No one shall be deprived of his liberty except on such grounds and in
    accordance with such procedure as are established by law.

  2. The requirement that detention not be ‘arbitrary’ is separate
    and distinct from the requirement that detention be lawful. In Van Alphen v
    The Netherlands    ,[8] the United
    Nations Human Rights Committee (UNHRC) said:

    [A]rbitrariness is not
    to be equated with ‘against the law’ but must be interpreted more
    broadly to include elements of inappropriateness, injustice and lack of
    predictability. This means that remand in custody pursuant to lawful arrest must
    not only be lawful but reasonable in all the circumstances. Further, remand in
    custody must be necessary in all the circumstances, for example, to prevent
    flight, interference with evidence or the recurrence of
    crime.[9]

  3. In order to avoid the characterisation of arbitrariness, detention should
    not continue beyond the period for which a State party can provide appropriate
    justification.[10]

  4. In A v Australia[11] the
    UNHRC said:

    [T]he 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.[12]

  5. The Committee further stated:

    ... 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.[13]

  6. In C v Australia the UNHRC found that detention was arbitrary
    because:

    The State party has not demonstrated that, in light of the
    author’s particular circumstances, there were not less invasive means of
    achieving the same ends, that is to say, compliance with the State party’s
    immigration policies, by, for example, the imposition of reporting obligations,
    sureties or other conditions which would take account of the author’s
    deteriorating condition.

5 Forming my
opinion

  1. In forming an opinion as to whether any act or practice was 38. inconsistent
    with or contrary to any human right I have carefully considered all of the
    information provided to me by both of the parties, including the submissions
    received from the parties in response to my tentative view.

5.1 It was open to the
Minister to grant a bridging visa

  1. The Department of Immigration and Citizenship (the Department) accepts that
    it was possible for the Minister to grant Mr Al Jenabi a bridging visa
    at any time throughout his detention.

  2. On 10 July 2006 the Minister refused Mr Al Jenabi the grant of a
    Bridging visa E under s 501(1) of the Migration Act.

  3. Section 501E of the Migration Act provides that a person may not make an
    application for a visa if the Minister has previously made a decision under s
    501 to refuse to grant the person a visa and the Minister’s decision has
    not been set aside or revoked. Mr Al Jenabi was therefore unable to
    make an application for a visa after 10 July 2006.

  4. However, under s 195A of the Migration Act, the Minister may grant a visa
    where the Minister thinks that it is in the ‘public interest’ to do
    so.

  5. In the absence of any submissions to the contrary, I accept that this
    discretion is available in special cases to avoid the Commonwealth acting in a
    way that breaches its international human rights obligations.

  6. Given that the Minister ultimately granted Mr Al Jenabi a Removal
    Pending Bridging visa by exercising his power under s 195A of the Migration Act,
    I have formed the view that it was open to the Minister, at any time throughout
    Mr Al Jenabi’s detention, to grant a bridging visa under s 195A
    of the Migration Act.

5.2 It was open to the
Minister to make a residence determination

  1. It is also open to the Minister to make a residence determination under

    s 197AB of the Migration Act where it is in the ‘public
    interest’ to do so. Section 197AB of the Migration Act states:

    If the Minister thinks that it is in the public interest to do so,
    the Minister may make a determination (a residence determination) to the
    effect that one or more specified persons to whom this subdivision applies are
    to reside at a specified place, instead of being detained at a place covered by
    the definition of immigration detention in subsection 5(1).

  2. Further, s 5 of the Migration Act defines ‘immigration
    detention’ to include ‘being held by, or on behalf of, an officer
    in another place approved by the Minister in
    writing’.[14]

  3. Accordingly, ss 189 and 196 of the Migration Act do not require the
    Department to detain unlawful non-citizens in immigration detention
    centres.

  4. The Ministerial Guidelines in 2006/2007 for the exercise of discretion under
    s 197AB of the Migration Act specifically refer to the following factors that
    should be taken into account when deciding whether it is in the ‘public
    interest’ to approve a residence
    determination:[15]

    1. family composition;

    2. the level of cooperation with immigration and removal processes;

    1. character;

    1. the likelihood of compliance with residence determination conditions; and

    2. removal prospects.

  5. At a directions hearing held before the Commission on 11 December 2009, the
    Department’s representative explained that the Department’s practice
    at the time was to prioritise health concerns and children.


  6. The Department’s written response confirms that its approach was to
    refer a detainee for community detention if there were ‘issues that could
    not be managed in a detention
    centre’.[16]


  7. On 16 July 2007 a Departmental delegate determined that the requirements for
    referral to the Minister were not met on the basis that
    Mr Al Jenabi’s medical report indicated that his mental health
    condition could be treated in detention. Mr Al Jenabi’s case
    was, for this reason, not referred to the Minister for the purpose of him giving
    consideration to the making of a residence determination.


  8. As demonstrated by the scope of factors listed in the Guidelines, s 197AB of
    the Migration Act did not require the Departmental delegate to deal with
    Mr Al Jenabi’s case in this way. Further, the Department’s
    written response does not suggest that it was either legally or practically
    impossible to make a residence determination in Mr Al Jenabi’s
    case.


  9. I am therefore of the view that it was open to the Minister to grant
    Mr Al Jenabi a residence determination and the Department’s
    failure to refer Mr Al Jenabi’s case to the Minister for the
    purpose of giving consideration to granting a residence determination is an
    ‘act’ for the purposes of the AHRC Act.

5.3 Arbitrary
detention

  1. Mr Al Jenabi claims that his detention in VIDC is arbitrary within
    the meaning of article 9(1) of the ICCPR.

  2. Mr Al Jenabi was held in immigration detention between 16 June
    2006 and 7 February 2008 when he was granted a Removal Pending Bridging
    visa.

  3. I accept the Department’s submission that Mr Al Jenabi was
    lawfully detained under s 189 of the Migration Act as he did not have a visa
    permitting him to stay lawfully in Australia. The Department states that the
    position of the Australian Government is that the detention of individuals
    requesting protection on the basis that they are unlawful non-citizens is
    neither unlawful nor arbitrary per se under international
    law.[17]

  4. I note the Department’s submission that it did not have the legal
    authority to grant a bridging visa or the power to make a residence
    determination. However, as previously discussed I have found it was open to the
    Minister to grant a bridging visa or make a residence determination.

  5. The Department submits that Mr Al Jenabi’s
    detention:

    was in accordance with Australia’s immigration laws
    and that seeking to resolve Mr Al Jenabi’s complex character
    issues was a legitimate and justifiable basis for the continuation of his
    detention and was not contrary to Article 9 of the
    ICCPR.[18]

  6. I do not accept the Department’s submission that it was legitimate and
    justifiable to detain Mr Al Jenabi in order to resolve his
    ‘complex character issues’. While I accept that
    Mr Al Jenabi’s case was particularly complex, I do not accept
    that the processing of his Temporary Protection visa application (including
    resolution of character issues) required his prolonged detention in an
    immigration detention centre.

  7. The Commonwealth was under an obligation to detain Mr Al Jenabi in
    the least restrictive manner possible. The Commonwealth could have detained
    Mr Al Jenabi in a less restrictive manner. As discussed I have found
    that it was open to the Minister to remove Mr Al Jenabi from VIDC
    either through the grant of a bridging visa pursuant to s 195A of the Migration
    Act or by making a residence determination under s 197AB of the Migration
    Act.

  8. The UNHRC has commented that detention should be subject to periodical
    review in order to reassess the necessity of
    detention.[19]

  9. It appears from the Department’s written response and the Detention
    Review Manager’s reports for the period 27 December 2006 to
    22 January 2008 that instead of taking steps to ensure
    Mr Al Jenabi was in the least restrictive form of detention
    justifiable in the particular circumstances of his case, the Department’s
    approach was to consider whether there were exceptional circumstances warranting
    his removal from an immigration detention centre. This is evidenced by the
    decision of the Department not to refer Mr Al Jenabi to the Minister
    for a residence determination because a medical report indicated that his mental
    health condition could be treated in detention.

  10. In my view, the failure to refer Mr Al Jenabi’s case to the
    Minister for the purpose of giving consideration to making a residence
    determination is inconsistent with article 9(1) of the ICCPR.

  11. I further note that the Department did not consider
    Mr Al Jenabi’s suitability to be placed in community detention
    until 5 June 2007; that is, almost one year after he had been in
    immigration detention.

  12. In my view, the failure promptly to consider Mr Al Jenabi for
    community detention was unreasonable and inconsistent with article 9(1) of the
    ICCPR.

5.4 When could the
Department no longer justify Mr Al Jenabi’s continued
detention?

  1. I find that legitimate justification for Mr Al Jenabi’s
    continued detention in an immigration detention centre came to an end when (a)
    he had cleared the ASIO security assessment and (b) the Department became aware
    that he could not be removed to Iraq.

  2. Once justification for Mr Al Jenabi’s continued detention in
    an immigration detention centre came to an end, I am of the view that
    Mr Al Jenabi’s detention became arbitrary in that it was unjust
    and disproportionate.

  3. I note that this reasoning is consistent with the UN Human Rights
    Committee’s views in Jalloh v
    Netherlands    [20] that the release
    of a detainee as soon as it became clear that there was no realistic prospect of
    removal prevented his detention in an immigration detention centre from being
    found arbitrary.[21] Further, the
    fact that there was no hope of removing a detainee even if a visa were not
    granted was a relevant factor in the UN Human Rights Committee’s finding
    of arbitrary detention in Baban v
    Australia    .[22]

  4. Mr Al Jenabi submits:

    While it is appropriate in the
    circumstances of this case to find that the continued detention of
    Mr Al Jenabi after a clear security assessment was issued on 10
    October 2006 was arbitrary contrary to Article 9 of the ICCPR, in our respectful
    submission, such a finding should not be made in any way that suggests that a
    clear security assessment is a pre-requisite to a finding of arbitrary detention
    contrary to Article 9 of the ICCPR. There will undoubtedly be cases in which a
    clear security assessment has not been issued in respect of a person, yet the
    continued detention of the person will be arbitrary and contrary to Article 9 of
    the ICCPR.[23]

  5. I accept that detention may be justified in order to conduct initial
    investigations including security checks by the Department. In my view, an
    initial security check should consist of a summary assessment of whether there
    is reason to believe that the individual concerned would pose an unacceptable
    risk to the Australian community were they given authority to live in the
    community. I consider that an initial security check should not be
    interpreted as requiring a full ASIO security assessment for each individual
    before they can be released from an immigration detention facility.

  6. However, in this particular case, given that Mr Al Jenabi spent
    time in several countries prior to arriving in Australia (including Iraq, Iran,
    Malaysia, Indonesia and Thailand), his criminal record and recent imprisonment,
    I am not satisfied that it was unreasonable to detain Mr Al Jenabi
    until a full ASIO security assessment was completed.

  7. The Department initiated the ASIO assessment on 7 September 2006; that is
    almost three months after Mr Al Jenabi was placed in detention. The
    Department provided the following explanation regarding this delay:

    Mr Al Jenabi’s security referral was initiated
    shortly after his protection interview which was conducted on 29 August 2006. It
    is usual practice for a referral to be initiated following interview as the
    interview provides an opportunity to collect information required to complete
    the relevant forms.

    Considerable preparation was required for Mr Al Jenabi’s
    interview as it needed to explore some complex issues relating to Articles 1F(b)
    and 33(2) of the Refugees Convention as well as Mr Al Jenabi’s
    protection claims.

    While [the Department’s] security checking policy does not provide
    specific advice on when to initiate a security referral, policy has instructed
    (since at least September 2004) that a security referral must only be initiated
    once the full set of requisite information, as set out by ASIO, has been
    obtained by [the Department]. The Security Checking Handbook outlines the
    mandatory information requirements that [the Department] must satisfy in order
    for ASIO to commence security checking. These mandatory data requirements were
    in place at the time of Mr Al Jenabi’s application.

    As set out on page 3 of [the Department’s] 4 August 2010 response to
    the President’s tentative view, it is important to note that PIC 4002 is
    only one of the legislative criteria to be satisfied for the grant of a
    Protection visa. At the time, an assessment of the danger Mr Al Jenabi
    posed was unresolved.[24]

  8. I acknowledge that certain requirements need to be fulfilled prior to
    initiating a security assessment with ASIO and that at that time the usual
    practice of the Department was to initiate ASIO security assessments after an
    initial interview with the detainee. However, in rare cases such as
    Mr Al Jenabi’s, where it is reasonable to require an ASIO
    security assessment prior to release, in my view, the security assessment should
    be initiated as soon as possible after the individual is taken into immigration
    detention. I reiterate that the Commonwealth had an obligation to detain
    Mr Al Jenabi in the least restrictive manner possible. I consider the
    delay in initiating the ASIO security assessment to be regrettable and
    inconsistent with Mr Al Jenabi’s right to liberty.

  9. The evidence before me is that Mr Al Jenabi was assessed by ASIO
    to not be directly or indirectly a risk to Australian national security on 10
    October 2006. The Department submits that the security assessment was for the
    purposes of Mr Al Jenabi’s Protection visa application and that
    the assessment of the danger he posed to the community remained unresolved. The
    Department has not provided information regarding what, if any, steps were taken
    to identify whether Mr Al Jenabi posed a danger to the community for
    the purposes of releasing him from detention.

  10. I accept that the security assessment was initiated for the purposes of the
    Temporary Protection visa application. However, in my view, the assessment also
    supports a conclusion that Mr Al Jenabi would not pose a danger to the
    community if released. If the Minister had concerns about the risk that
    Mr Al Jenabi posed to the community, it is unclear on what evidence
    these concerns were based and what steps were taken to assess this risk for the
    purposes of releasing Mr Al Jenabi from detention.

  11. I am also of the view that there was no realistic prospect of removing
    Mr Al Jenabi to Iraq during his period of detention for the following
    reasons:

    • There is evidence that as early as 4 April 2006, a Department employee who
      interviewed Mr Al Jenabi in prison was aware that it was the
      Department’s practice at that time not to remove Iraqis to Iraq without
      their consent.

    • During an interview conducted by a Department employee with
      Mr Al Jenabi on 13 April 2006, while he was in prison, he indicated
      that he did not want to return to Iraq.

    • On 16 June 2006 Mr Al Jenabi lodged an application for a
      Protection visa based on claims to have a well-founded fear of persecution in
      Iraq.
  12. The Commonwealth does not accept that there was no realistic prospect of
    removing Mr Al Jenabi. The Commonwealth submits that although
    Mr Al Jenabi expressed a preference to remain in Australia, he stated
    that he would return to Iraq if that was not possible. The Commonwealth notes
    that during the protection visa assessment process potential removal to Iraq or
    another safe third country was not pursued.


  13. While I accept that during an interview conducted on 13 April 2006
    Mr Al Jenabi stated that if he could not remain in Australia, he would
    have to go back to Iraq, I do not accept that this evidences an intention to
    return to Iraq. Mr Al Jenabi made it clear that he did not want to
    return to Iraq and the Department’s interview notes dated 13 April 2006
    state that he did not wish to sign a request to be removed.


  14. For the above reasons I am of the view that the Commonwealth has not
    justified Mr Al Jenabi’s continued detention in an immigration detention
    centre beyond 10 October 2006. By 10 October 2006, Mr Al Jenabi had
    cleared his ASIO security assessment and it was apparent to the Department that
    he could not be returned to Iraq. Accordingly, I find that
    Mr Al Jenabi’s detention in VIDC from 10 October 2006 was
    arbitrary in breach of article 9(1) of the ICCPR.

6 Findings and
recommendations

6.1 Power to make
recommendations

  1. Where, after conducting an inquiry, the Commission finds that an act or
    practice engaged in by a respondent is inconsistent with or contrary to any
    human right, the Commission is required to serve notice on the respondent
    setting out its findings and reasons for those
    findings.[25] The Commission may
    include in the notice any recommendation for preventing a repetition of the act
    or a continuation of the
    practice.[26]

  2. The Commission may also recommend:
    • the payment of compensation to, or in respect of, a person who has suffered
      loss or damage; and
    • the taking of other action to remedy or reduce the loss or damage suffered
      by a
      person.[27]

6.2 Consideration of
compensation

  1. There is no judicial guidance dealing with the assessment of recommendations
    for financial compensation for breaches of human rights under the AHRC Act.

  2. However, in making a recommendation for compensation under s 35 of the
    AHRC Act (relating to discrimination matters under Part II, Division 4 of
    the AHRC Act), the Federal Court has indicated that tort principles for the
    assessment of damages should be
    applied.[28]

  3. I am of the view that this is the appropriate approach to take to the
    present matter. For this reason, so far as is possible in the case of a
    recommendation for compensation, the object should be to place the injured party
    in the same position as if the wrong had not
    occurred.[29]

  4. The tort of false imprisonment is a more limited action than an action for
    breach of article 9(1). This is because an action for false imprisonment can not
    succeed where there is lawful justification for the detention, whereas a breach
    of article 9(1) will be made out where it can be established that the detention
    was arbitrary, irrespective of legality.

  5. Notwithstanding this important distinction, the damages awarded in false
    imprisonment provide an appropriate guide for the award of compensation for a
    breach of article 9(1). This is because the damages that are available in false
    imprisonment matters provide an indication of how the courts have considered it
    appropriate to compensate for loss of liberty.

  6. The principal heads of damage for a tort of this nature are injury to
    liberty (the loss of freedom considered primarily from a non-pecuniary
    standpoint) and injury to feelings (the indignity, mental suffering, disgrace
    and humiliation, with any attendant loss of social
    status).[30]

  7. I note that the following awards of damages have been made for injury to
    liberty and provide a useful reference point in the present
    case:


    1. In Taylor v
      Ruddock      ,[31] the District Court
      at first instance considered the quantum of general damages for the
      plaintiff’s loss of liberty for two periods of 161 days and 155 days,
      during which the plaintiff was in ‘immigration detention’ under the
      Migration Act but held in NSW prisons.

      Although the award of the District Court was ultimately set aside by the
      High Court, it provides useful indication of the calculation of damages for a
      person being unlawfully detained for a significant period of time.

      The Court found that the plaintiff was unlawfully imprisoned for the whole
      of those periods and awarded him $50 000 for the first period of 161 days
      and $60 000 for the second period of 155 days. For a total period of 316
      days wrongful imprisonment, the Court awarded a total of $110 000.

      In awarding Mr Taylor $110 000 the District Court took into account the
      fact that Mr Taylor had a long criminal record and that this was not his first
      experience of a loss of liberty. He was also considered to be a person of low
      repute who would not have felt the disgrace and humiliation experienced by a
      person of good character in similar
      circumstances.[32]

      On appeal, the Court of Appeal of New South Wales considered that the award
      was low but in the acceptable
      range.[33] The Court noted that
      ‘as the term of imprisonment extends the effect upon the person falsely
      imprisoned does progressively
      diminish’.[34]

    2. In Goldie v Commonwealth of Australia (No
      2)      [35] Mr Goldie was awarded
      damages of $22 000 for false imprisonment being wrongful arrest and detention
      under the Migration Act for four days.

    3. In Spautz v
      Butterworth      [36] Mr Spautz was
      awarded $75 000 in damages for his wrongful imprisonment as a result of failing
      to pay a fine. Mr Spautz spent 56 days in prison and his damages award
      reflects the length of his incarceration. His time in prison included seven days
      in solitary confinement.

    4. In the matter of El Masri v
      Commonwealth      [37] I recommended
      that the Commonwealth pay Mr El Masri $90 000 as compensation for the 90 days he
      was arbitrarily detained in immigration detention.

6.3 Recommendation that
compensation be paid

  1. I have found that on or about 10 October 2006 Mr Al Jenabi should
    have been placed in community detention or a less restrictive form of detention
    rather than being detained in VIDC. The failure to release
    Mr Al Jenabi from VIDC was inconsistent with his right not to be
    arbitrarily detained.

  2. Mr Al Jenabi has requested that I consider the effects arbitrary
    detention has had on his mental health and wellbeing when assessing any
    compensation that I might recommend.

  3. Mr Al Jenabi has submitted three psychological reports from
    Ms Paula Farrugia, psychologist, dated 30 March 2007, 26 August 2008 and a
    more recent undated report. While Mr Al Jenabi was detained at VIDC Ms
    Farrugia was requested by his community advocate to examine the effect
    immigration detention may be having on him.

  4. In Ms Farrugia’s report dated 30 March 2007 she found that while in
    detention Mr Al Jenabi suffered from a chronic major depressive
    disorder and posttraumatic stress disorder. Ms Farrugia found that:

    During recent months Mr Aljenabi (sic) has experienced a
    progressive psychological deterioration that has not failed to escape the notice
    of people with whom he is in contact and has culminated in psychological
    sypmtomology requiring highly skilled specialist intervention. Furthermore he is
    currently suffering detention reactive, physical and psychological symptomology
    at increased levels of duration, frequency and
    intensity.[38]

  5. Ms Farrugia made the following recommendation:

    At the very
    least continued detention would serve to maintain Mr Al Jenabi’s
    current level of psychological distress resulting in further decline which is
    considered to be grossly unacceptable even by, it would appear, [the
    Department’s] new revised standards.

    It is my clinical recommendation that Mr Al Jenabi be released from
    immigration detention, at the earliest possible time so he may commence the
    reconstruction of his life.[39]

  6. I note that Ms Farrugia’s most recent undated report prepared after
    Mr Al Jenabi was released from immigration detention confirms her
    previous findings:

    Mr Al Jenabi’s disturbingly
    fragile condition, as identified, in a comprehensive psychological assessment in
    March 2007 while being held in the VIDC intensified the longer he was being
    held. He reported a preoccupation with suicidal thoughts while a sense of
    personal worthlessness, desolation and hopelessness predominated. Evidently his
    deteriorating mental condition was highly reactive to the detention centre
    experience.[40]

  7. The Department submitted a medical report concerning Mr Al Jenabi
    prepared by Ms Alexandra Vrjosseck, consultant psychiatrist, dated 2 July 2007.
    The report states:

    I did not form the impression that he
    [Mr Al Jenabi] was suffering from Post Traumatic Stress Disorder, nor
    did I consider that he suffered from a Major Depressive Disorder.

    Indeed, I felt that Mr Al Jenabi was coping extremely well and was
    remarkably well adjusted in view of his stressful and traumatized youth and
    adult life.

    I did not believe that he was suffering from any psychiatric disorder and
    hence there is no actual “psychiatric condition” which is being
    exacerbated by his current detention arrangements.

    Hence from this perspective Mr Al Jenabi can be cared for in
    Immigration Detention.[41]

  8. I note that it was on the basis of Ms Vrjosseck’s report that the
    Department did not refer Mr Al Jenabi for community detention.

  9. The reports of Ms Farrugia and Ms Vrjosseck contain remarkably different
    findings on Mr Al Jenabi’s mental health while detained at VIDC.
    Having reviewed both reports I accord greater weight to the findings of Ms
    Farrugia. Ms Farrugia’s 22 page report dated 30 March 2007
    provides a clear overview of the assessment procedure including the specific
    psychological testing framework she utilised. Importantly, Ms Farrugia’s
    report provides detailed explanations to support her findings. On the other
    hand, Ms Vrjosseck’s report is brief consisting of only 1.5 pages, does
    not provide any detail on the assessment procedures used, and contains limited
    detail to support her findings.

  10. Accordingly, in considering an appropriate quantum for compensation,

    I
    have taken into consideration the deterioration of
    Mr Al Jenabi’s psychological well-being in detention.

  11. The Department contended that it was not appropriate for me to apply a
    ‘daily rate’ to determine a recommendation for compensation. The
    Department noted that in common law proceedings, the quantum of damages for
    matters such as pain and suffering is tested on the basis of submissions from
    both parties on these issues.

  12. I consider that the Commonwealth should pay to Mr Al Jenabi an
    amount of compensation to reflect the substantial loss of liberty caused by his
    detention at VIDC, but I have not assessed the quantum of that compensation by
    utilising a strict ‘daily rate’. I have taken into account that
    Mr Al Jenabi had served a substantial prison sentence immediately
    preceding being detained under s 189 of the Migration Act and thus he is not in
    a comparative position to an individual who ought never to have experienced
    incarceration.

  13. Assessing compensation in circumstances such as those of this case is
    difficult and requires a degree of judgment. Taking into account the guidance
    provided by the decisions referred to above I consider that payment of
    compensation in the amount of $ 450 000 would be appropriate.

6.4 Apology

  1. In addition to compensation, I consider that it is appropriate that the
    Commonwealth provide a formal written apology to Mr Al Jenabi for the
    breaches of his human rights identified in this report. Apologies are important
    remedies for breaches of human rights. They, at least to some extent, alleviate
    the suffering of those who have been
    wronged.[42]

6.5 Policy

  1. I consider that the Department should regularly conduct open periodic
    reviews of the necessity of detention for people in immigration detention
    centres. I recommend that the reviews focus on whether detention in an
    immigration detention centre is necessary in the specific case and if detention
    is not considered necessary, the identification of alternate means of detention
    or the grant of a visa should be considered.

  2. I consider that the guidelines relating to the Minister’s residence
    determination power should be amended to provide that unless the Department is
    satisfied that a person in an immigration detention centre is a flight risk, or
    poses an unacceptable risk to the Australian community that cannot be addressed
    through the imposition of conditions on community detention, the Department
    should refer all persons to the Minister for consideration of making a residence
    determination. The Department should make the referral as soon as practicable
    and in no circumstances later than 90 days after the individual is placed in an
    immigration detention centre.

  3. I consider that the guidelines should require that a decision by the
    Department not to refer a person to the Minister for consideration of making a
    residence determination should be a decision that is made after an
    individualised assessment of the person’s circumstances and based on
    reliable and documented evidence. The guidelines should expressly provide that a
    criminal record is insufficient evidence of itself that an individual poses an
    unacceptable risk to the Australian community.

7 The Department’s
response to the recommendations

  1. By letter dated 5 May 2011, the Commonwealth was requested to advise the
    Commission within 14 days whether it has taken or is taking any action as a
    result of my findings and recommendations and, if so, the nature of that
    action.

The Department’s response on behalf of the
Commonwealth of Australia to the findings and recommendations of the AHRC with
regard to Mr Ali Al Jenabi

1. That payment of compensation in the amount of $450,000 is appropriate

While we note your findings, in the Department’s view
Mr Al Jenabi was detained lawfully in accordance with the Migration
Act 1958 (Cth) (Migration Act) and his detention was not arbitrary.

The Department notes that Mr Al Jenabi continued to be detained
under section 189 of the Migration Act while the department was working to
finalise his protection visa application. As we have advised previously, a
primary impediment to the resolution of Mr Al Jenabi’s
protection visa process was that as a result of his criminal history, he did not
satisfy Public Interest Criterion 4001, the character requirements. The
Department’s view is that the assessment of a non-citizen’s risk to
the Australian community; by seeking to obtain a full picture of their criminal
history prior to allowing them to enter the Australian community, is a
legitimate and justifiable basis for the continuation of detention and is not
contrary to Article 9 of the ICCPR. The Department would like to affirm its
position that as soon as Mr Al Jenabi’s visa process was
finalised through refusal to grant a protection visa under section 501 of the
Migration Act by the former Minister, he was released from immigration detention
on a Removal Pending bridging visa pending his availability for removal.

Accordingly, the Department advises the Commission that there will be no
action taken with regard to this recommendation.

2. That it is appropriate that the Commonwealth provide a formal written
apology to Mr Al Jenabi for the breaches of his human
rights identified in this report.

The Department notes your recommendation, however, in line with the
Department’s position regarding Mr Al Jenabi’s detention,
the Department advises the Commission that there will no action [sic] taken with
regard to this recommendation.

Other Recommendations

The Department notes that the Commission has suggested policy reform in
number [sic] of areas associated with:

  1. open periodic review and detention placement decisions for clients in
    immigration detention;

  2. that the Ministerial guidelines be reviewed in regards to risk; and

  3. that decisions not to refer a case to the Minister be made after an
    individualised assessment and based on evidence.

The Department
agrees with the general principle of ongoing policy reform to ensure that
departmental decision making remains a robust and evidenced based process.

There is now a rigorous system of regular reviews for each client in
detention which takes into account the client’s progress to status
resolution as well as their health and the appropriateness of their detention
placement.

Case managers, or another senior officer, review their client’s case
regularly to ensure that the right level of support is in place to facilitate
status resolution. This review includes consideration of such things as whether
detention continues to be appropriate, whether the right level of case
management intervention is being applied as well as a reconsideration of the
client’s detention placement taking into account health and well being
[sic], family structure, community support as well as availability of
accommodation and any security factors. If there are any concerns about the
lawfulness of the detention the case is referred to a Detention Review Manager
who undertakes a full lawfulness review.

In regard to a review of the ministerial guidelines, the Department would
like to advise that the s197AB guidelines were revised in 2009 and endorsed by
the former Minister. Ministerial intervention guidelines are periodically
reviewed to ensure they are consistent with the Minister’s wishes for the
use of their non-compellable and non-delegable powers. Under the current
guidelines the Department assesses individual clients against the set of
vulnerability indicators. Clients who are single adult males are not, on that
basis, precluded from consideration under the guidelines.

  1. I report accordingly to the Attorney-General.


Catherine Branson

President

Australian Human Rights Commission

July 2011

Appendix 1: Functions of
the Commission

The Commission has specific legislative functions and responsibilities for
the protection and promotion of human rights under the AHRC Act. Part II
Divisions 2 and 3 of the AHRC Act confer functions on the Commission in relation
to human rights. In particular, section 11(1)(f) of the AHRC Act empowers the
Commission to inquire into acts or practices of the Commonwealth that may be
inconsistent with or contrary to the rights set out in the human rights
instruments scheduled to or declared under the AHRC Act.

Section 11(1)(f) of the AHRC Act states:

(1) The functions of the Commission are:

...

(f) to inquire into any act or practice that may be inconsistent with or
contrary to any human right, and:

(i) where the Commission considers it appropriate to do so – to
endeavour, by conciliation, to effect a settlement of the matters that gave rise
to the inquiry; and

(ii) where the Commission is of the opinion that the act or practice is
inconsistent with or contrary to any human right, and the Commission has not
considered it appropriate to endeavour to effect a settlement of the matters
that gave rise to the inquiry or has endeavoured without success to effect such
a settlement –to report to the Minister in relation to the inquiry.

Section 3 of the AHRC Act defines an ‘act’ or
‘practice’ as including an act or practice done by or on behalf of
the Commonwealth or an authority of the Commonwealth.

The Commission performs the functions referred to in section 11(1)(f) of the
AHRC Act upon the AttorneyGeneral’s request, when a complaint is made in
writing or when the Commission regards it desirable to do so (section 20(1) of
the AHRC Act).

In addition, the Commission is obliged to perform all of its functions in
accordance with the principles set out in section 10A of the AHRC Act, namely
with regard for the indivisibility and universality of human rights and the
principle that every person is free and equal in dignity and rights.

The Commission attempts to resolve complaints under the provisions of the
AHRC Act through the process of conciliation. Where conciliation is not
successful or not appropriate and the Commission is of the opinion that an act
or practice constitutes a breach of human rights, the Commission shall not
furnish a report to the Attorney-General until it has given the respondent to
the complaint an opportunity to make written and/or oral submissions in relation
to the complaint (section 27 of the AHRC Act).

If, after the inquiry, the Commission finds a breach of human rights, it must
serve a notice on the person doing the act or engaging in the practice setting
out the findings and the reasons for those findings (section 29(2)(a) of the
AHRC Act). The Commission may make recommendations for preventing a repetition
of the act or practice, the payment of compensation or any other action or
remedy to reduce the loss or damage suffered as a result of the breach of a
person’s human rights (sections 29(2)(b) and (c) of the AHRC Act).

If the Commission finds a breach of human rights and it furnishes a report on
the matter to the AttorneyGeneral, the Commission is to include in the report
particulars of any recommendations made in the notice and details of any actions
that the person is taking as a result of the findings and recommendations of the
Commission (sections 29(2)(d) and (e) of the AHRC Act). The Attorney-General
must table the report in both Houses of Federal Parliament within 15 sitting
days in accordance with section 46 of the AHRC Act.

It should be noted that the Commission has a discretion to cease inquiry into
an act or practice in certain circumstances (section 20(2) of the AHRC Act),
including where the subject matter of the complaint has already been adequately
dealt with by the Commission (section 20(2)(c)(v) of the AHRC Act).

[1] R v Al Jenabi [2004]
NTSC 44 (Unreported, Mildren J, 7 September 2004).

[2] Migration Regulations 1994 (Cth) r 866.222A (repealed).

[3] ‘Security’ is
defined by s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) to mean: (a) the protection of, and of the people of, the Commonwealth
and the several States and Territories from: (i) espionage; (ii) sabotage; (iii)
politically motivated violence; (iv) promotion of communal violence; (v) attacks
on Australia’s defence system; or (vi) acts of foreign interference;
whether directed from, or committed within, Australia or not; and (b) the
carrying out of Australia’s responsibilities to any foreign country in
relation to a matter mentioned in any of the subparagraphs of paragraph
(a).

[4] SZLDG v Minister for
Immigration and Citizenship [2008] FCA 11.

[5] (1997) 78 FCR 208.

[6] Ibid.

[7] (2002) AusHRC 25. See also Secretary, Department of Defence v HREOC, Burgess & Ors (1997) 78 FCR
208.

[8] Communication No 305/1988 UN
Doc CCPR/C/39/D/305/1988.

[9] Ibid [5.8].

[10] C v Australia
Communication No 900/1999 UN Doc CCPR/C/76/D/900/1999 [8.2], D and E v
Australia Communication No 1050/2002 UN Doc CCPR/C/87/D/1050/2002 [7.2], Omar Sharif Baban v Australia Communication No 1014/2001 UN Doc
CCPR/C/78/D/1014/2001 [7.2], Bakhtiyari v Australia Communication No
1069/2002 UN Doc CCPR/C/79/D/1069/2002 [9.2].

[11] Communication No 560/1993
UN Doc CCPR/C/59/D/560/1993.

[12] Ibid [9.2].

[13] Communication No 560/1993
UN Doc CCPR/C/59/D/560/1993 [9.4].

[14] Migration Act 1958 (Cth), s 5.

[15] Department of Immigration
and Citizenship, Minister’s Detention Intervention Powers (Section 197AB
of the Migration Act 1958) Guidelines (2007).

[16] Email from Department to
Commission, dated 25 January 2010.

[17] The Department’s
Response on behalf of the Commonwealth of Australia to the AHRC’s
Tentative Views, dated 4 August 2010.

[18] Ibid.

[19] Shafiq v Australia, Communication No 1324/2004 UN Doc CCPR/C/88/D/1324/2004, [7.2].

[20] Communication No 794/1998
UN Doc CCPR/C/74/D/794/1998.

[21] Ibid, [8.2].

[22] Communication No 1014/2001
UN Doc CCPR/C/78/D/1014/2001.

[23] Email from Stephen Blanks
to the Commission dated 21 December 2010.

[24] Email from Department to
Commission, dated 4 March 2011.

[25] Australian Human Rights
Commission Act 1986 (Cth), s 29(2)(a).

[26] Australian Human Rights
Commission Act 1986 (Cth), s 29(2)(b).

[27] Australian Human Rights
Commission Act 1986 (Cth), s 29(2)(c).

[28] Peacock v The
Commonwealth (2000) 104 FCR 464, 483 (Wilcox J).

[29] See Hall v A & A
Sheiban Pty Limited (1989) 20 FCR 217, 239 (Lockhart J).

[30] Cassell & Co Ltd v
Broome (1972) AC 1027, 1124; Spautz v Butterworth [1996] 41 NSWLR 1
(Clarke JA); Vignoli v Sydney Harbour Casino [1999] NSWSC 1113
(22 November 1999), [87].

[31] Taylor v Ruddock [2002] NSWDC 662 (Unreported, Murrell DCJ, 18 December 2002).

[32] Ibid, [140].

[33] Ruddock v Taylor (2003) 58 NSWLR 269.

[34] Ibid, [49].

[35] (2004) 81 ALD 422.

[36] Spautz v Butterworth (1996) 41 NSWLR 1 (Clarke JA).

[37] [2009] AusHRC 41.

[38] Report of P Farrugia p 18,
dated 30 March 2007.

[39] Report of P Farrugia, p 19,
dated 30 March 2007.

[40] Report of P Farrugia, p 5,
undated.

[41] Report of Alexandra
Vrjosseck, p 1, dated 2 July 2007.

[42] D Shelton, Remedies in
International Human Rights Law (2000), 151.