AusHRC 49: Cherkupalli v Commonwealth of Australia (Department of Immigration & Citizenship)

2012

Cherkupalli v Commonwealth of Australia

(Department of Immigration & Citizenship)

Report into arbitrary detention

[2012] AusHRC 49

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March 2012

The Hon Nicola Roxon 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 Prashant Cherkupalli.

I have found that the acts of the Commonwealth breached Mr Prashant
Cherkupalli’s fundamental human 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 31 October 2011, the Department of Immigration and
Citizenship provided its response to my findings and recommendations. I have set
out this response in its entirety in part 15 of my report.

Please find enclosed a copy of my report.

Yours sincerely

Catherine Branson

President

Australian Human Rights Commission

T +61 2 9284 9614

F +61 2 9284
9794

E associate@humanrights.gov.au

1 Introduction
2 Summary
- 2.1 Summary of findings
- 2.2 Summary of recommendations
3 Complaint
4 Legislative framework
5 Mr Cherkupalli’s detention under s 192 of the Migration Act
6 The decision to cancel Mr Cherkupalli’s bridging visa
7 The decision to detain under s 189 of the Migration Act
- 7.1 Is there an ‘act’?
- 7.2 Decision to detain under s 189 of the Migration Act inconsistent with article 9(1) of the ICCPR
8 No review of the legality of Mr Cherkupalli’s detention
- 8.1 Is there an ‘act’?
- 8.2 Failure to review the legality of detention inconsistent with article 9(1) of the ICCPR
9 Failure to review appropriateness of detention in an immigration detention centre
- 9.1 Is there an ‘act’?
- 9.2 Failure to detain in less restrictive form of detention inconsistent with article 9(1) of the ICCPR
10 Refusal to grant a bridging visa
- 10.1 Is there an ‘act’?
- 10.2 Refusal to grant a bridging visa inconsistent with article 9(1) of the ICCPR
11 The failure to afford Mr Cherkupalli an opportunity to comment and the refusal to grant student visa
- 11.1 Is there an ‘act’?
- 11.2 No finding on failure to provide an opportunity to comment and refusal to grant student visa
12 Inexplicable administrative delay
- 12.1 Is there an ‘act’?
- 12.2 No finding on inexplicable administrative delay
13 Failure to provide judicial review
14 Recommendations
15 Department’s response to the recommendations
Appendix 1: Chronology

1 Introduction

This is a report setting out the Commission’s findings and the reasons
for those findings following an inquiry by the Australian Human Rights
Commission into a complaint lodged by Mr Prashant Cherkupalli.
Mr Cherkupalli complains that his detention by the Department of Immigration
and Citizenship (the Department) involved acts inconsistent with or contrary to
human rights, namely the right to liberty in article 9 of the International
Covenant on Civil and Political Rights (ICCPR).

2 Summary

2.1 Summary of
findings

I have found that the following acts of the Department were inconsistent
with the human rights of Mr Cherkupalli for the reasons indicated:
1. The act of the Commonwealth in deciding to detain, and thereafter
  detaining, Mr Cherkupalli in reliance on s 192 of the Migration Act 1958 (Cth) (the Migration Act) was inconsistent with article 9(1) of the ICCPR as I
  am not satisfied that the detaining officer turned his or her mind to the
  requirements of s 192(2) of the Migration Act.
2. The act of the Commonwealth cancelling Mr Cherkupalli’s bridging visa
  was inconsistent with article 9 of the ICCPR as it led to his detention and the
  procedures established by s 119 to s 121 of the Migration Act were not complied
  with.
3. The act of the Commonwealth in deciding to detain Mr Cherkupalli in
  reliance on s 189 of the Migration Act was inconsistent with article 9(1) of the
  ICCPR because the detaining officer did not hold a reasonable suspicion that Mr
  Cherkupalli was an unlawful non-citizen and therefore the procedures established
  by law were not complied with.
4. The failure of the Commonwealth to review the relevant aspects of Mr
  Cherkupalli’s file, or alternatively to review it with reasonable care,
  was inconsistent with article 9(1) of the ICCPR because it rendered his
  detention in reliance on s 189 of the Migration Act thereafter not ‘in
  accordance with such procedures as are established by law’.
5. The failure of the Commonwealth to consider and place Mr Cherkupalli in a
  less restrictive form of detention than an immigration detention centre from the
  outset of and throughout Mr Cherkupalli’s detention was inconsistent with
  article 9 of the ICCPR.
6. The refusal by the Commonwealth to grant Mr Cherkupalli a bridging visa was
  inconsistent with article 9 of the ICCPR.
I have therefore concluded Mr Cherkupalli was arbitrarily deprived of his
liberty from 26 November 2004 to 19 April 2006, a period of 509
days.

2.2 Summary of
recommendations

In light of my findings regarding the acts of the Commonwealth I make the
following recommendations:
1. That the Commonwealth pay financial compensation to Mr Cherkupalli in the
  sum of $697 000.¹
2. That the Department ensure that its staff receive training in the
  importance of protecting the right to liberty and, in that context, the
  importance of maintaining accurate and detailed records of decisions made and
  the reasons for those decisions.
3. That to the extent possible, the Department provide training to all
  ‘officers’ within the meaning of the Migration Act on the proper
  exercise of the discretion to detain under s 192(1) of the Migration
  Act.
4. That the detaining officers considering whether to detain a non-citizen
  whose visa has recently been cancelled be required to check carefully the record
  of the decision cancelling the visa for errors, including possible procedural
  errors on the face of the document, before making the detention decision.
5. That officers reviewing the legality of a person’s detention be
  required to pay particular attention to the record of the visa cancellation
  decision for any potential errors on the face of the document.
6. That regular reviews of a non-citizen’s detention under s 189 and s
  190 of the Migration Act include consideration of whether the non-citizen is in
  the least restrictive form of detention.
7. That the Minister reconsider Mr Cherkupalli’s application under s 351
  of the Migration Act in light of the findings in this report and in particular,
  my finding that Mr Cherkupalli’s bridging visa was not authorised by s 119
  to s 121 of the Migration Act.
8. That the Commonwealth provide a formal written apology to Mr Cherkupalli
  for the breaches of his human rights identified in this
  report.

3 Complaint

Mr Cherkupalli is an Indian national who came to Australia on 30 July 2003
to undertake a Master of Computer Studies degree. At this time, successful
completion of this course of study would have qualified him for a permanent
Australian visa.
Mr Cherkupalli’s initial student visa gave him a limited right to
work. However, after this visa expired on 13 August 2004 and pending the
processing of his application for a further student visa, he was granted a
bridging visa which was subject to the condition that he not work.
On 26 November 2004, Mr Cherkupalli was found working at Michel’s
Patisserie in Chester Hill in breach of the no work condition of his bridging
visa. He was detained and taken to Villawood Immigration Detention Centre where
his bridging visa was cancelled.
Mr Cherkupalli was not released from Villawood Immigration Detention Centre
(VIDC) until 19 April 2006 (i.e. 17 months or 509 days later) when he was
granted another bridging visa and ultimately a further student visa.
Mr Cherkupalli’s application for a further student visa was, as
mentioned above, pending when he was detained. On 22 December 2004 this
application was refused because of his failure to comply with the ‘no
work’ condition on his bridging visa. He challenged this decision in the
Federal Magistrates Court and on 18 November 2005, that Court made a consent
order remitting the decision to the Department for reconsideration. That
reconsideration ultimately resulted in Mr Cherkupalli being granted a further
student visa but that visa was not granted for nearly two years.
In the meantime, Mr Cherkupalli made at least ten applications for a
bridging visa. Three of these applications were refused and the refusals upheld
by the Migration Review Tribunal. In the case of seven of the applications, the
Department sought the provision of surety in the amounts of either $10 000 or $8
000. As Mr Cherkupalli could not raise these amounts he withdrew the
applications.
As a consequence, Mr Cherkupalli remained in detention at VIDC until April
2006 when, following community representations to the Minister, he made a
further application for a bridging visa which was granted the same day. No
surety was sought on this occasion.
Mr Cherkupalli was granted a further student visa on 29 October 2007 and he
completed his Master of Engineering Studies in April 2009. By that time the
successful completion of his course of studies did not qualify him for a
permanent Australian visa.
A chronology of key events is set out in Appendix 1.

4 Legislative
framework

4.1 The Commission can
inquire into ‘acts’ or ‘practices’ of the
Commonwealth

Section 11(1)(f) of the Australian Human Rights Commission Act 1986 (Cth) gives the Commission the function of inquiring into any act or practice
that may be inconsistent with or contrary to any human right. Section 8(6) of
the AHRC Act requires that this function be performed by the President.
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.

4.2 What is a
‘human right’?

Section 3(1) of the AHRC Act defines ‘human rights’ to include
the rights and freedoms recognised by the ICCPR.
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 procedures as are established by law.

4.3 What is an
‘act’?

Section 3(1) of the AHRC Act defines ‘act’ to include an act
done by or on behalf of the Commonwealth. 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.
The functions of the Commission identified in s 11(1)(f) of the AHRC Act are
only engaged where the act complained of is not one required by law to be
taken.²
Mr Cherkupalli has identified ten separate acts of the Commonwealth which he
alleges are inconsistent with his right to liberty as recognised by article 9 of
the ICCPR. Each of these acts is separately considered below.

5 Mr Cherkupalli’s
detention under s 192 of the Migration Act

On 26 November 2004, Mr Cherkupalli was found by departmental officers
working in breach of the ‘no work’ condition on his bridging visa.
He was detained at the place where he was working and held in detention, in
purported reliance on s 192 of the Migration Act. He was taken to VIDC for
questioning and shortly after his interview, a departmental officer cancelled
his bridging visa.
He alleges that his detention during this period of approximately two hours
was inconsistent with article 9(1) of the ICCPR for two reasons. First, he
alleges that the detaining officer did not comply with the requirements of s 192
of the Migration Act; and secondly, he alleges that his detention was in any
event arbitrary in the sense of being unreasonable and inappropriate in the
circumstances.

5.1 Is there an
‘act’?

I accept that this initial period of detention was purportedly authorised
under s 192 of the Migration Act. That section relevantly
provides:
Detention of visa holders whose visas liable to
cancellation

(1) Subject to subsection (2), if an officer knows or reasonably suspects
that a non-citizen holds a visa that may be cancelled under Subdivision C, D or
G of Division 3 or section 501 or 501A, the officer may detain the
non-citizen.

(2) An officer must not detain an immigration cleared non-citizen under
subsection (1) unless the officer reasonably suspects that if the non-citizen is
not detained, the non-citizen would:
1. Attempt to evade the officer and other officers; or
2. Otherwise not cooperate with officers in their inquiries about the
  non-citizen’s visa and matters relating to the visa.
...
As s 192 of the Migration Act is a provision that, in the circumstances
specified by the section, allows but does not require the detention of a
non-citizen, the detention of Mr Cherkupalli in purported compliance with the
section was an ‘act’ of the Commonwealth within the meaning of the
AHRC Act.

5.2 Detention under s
192 of the Migration Act inconsistent with article 9(1) of the
ICCPR

Mr Cherkupalli claims that this initial period of detention was inconsistent
with article 9(1) of the ICCPR because the Department did not follow the
procedures established under s 192 of the Migration Act.
Subject to the requirements of s 192(2) of the Migration Act, I am satisfied
that the circumstances of Mr Cherkupalli’s case enlivened the discretion
vested in an officer of the Department by s 192(1) of the Migration Act. The
critical issue is whether the detaining officer reasonably suspected that, were
Mr Cherkupalli not detained, he would attempt to evade the officer or other
officers or otherwise not cooperate with them in their enquiries.
The Department has acknowledged that nothing in the material before the
Commission suggests that the requirement of s 192(2) was considered at the time
of Mr Cherkupalli’s initial detention. I am satisfied that this material
tends positively to suggest that the requirement was not considered. Not only is
there no record of the detaining officer forming the relevant suspicion, I
accept the truth of Mr Cherkupalli’s statement that the situation at the
relevant time was ‘chaotic’ and he was not asked any questions that
might cast light on whether, were he not detained, he would co-operate or be
likely to evade the detaining officer or other officers. I conclude that the
detaining officer did not give consideration to the requirement of s 192(2) and
did not hold the relevant suspicion.
Even were I satisfied that the detaining officer held the relevant
suspicion, I would not be satisfied that the suspicion was reasonable. While the
Department’s records show that ‘on entry three persons were seen
attempting to decamp the premises’, nothing in the records, or in any
other material before me, suggests that Mr Cherkupalli was one of these three. I
am not satisfied that he was. Nor am I satisfied that there existed at the time
any other basis on which the detaining officer could hold a reasonable suspicion
that, if not detained, Mr Cherkupalli would attempt to evade him or her or other
officers.
I conclude that the act of the Commonwealth in deciding to detain, and
thereafter detaining, Mr Cherkupalli in reliance on s 192 of the Migration Act
was inconsistent with the right to liberty recognised by article 9(1) of the
ICCPR in that he was deprived of his liberty without the procedures established
by law being complied with.

5.3 No finding on
arbitrariness in the wider sense

Having found that Mr Cherkupalli’s detention during this period was
inconsistent with the right to liberty recognised by article 9(1) of the ICCPR,
I do not consider it necessary to make any further finding on whether the
detention was arbitrary in the sense of being unreasonable and inappropriate in
the circumstances.

6 The decision to cancel Mr
Cherkupalli’s bridging visa

Mr Cherkupalli alleges that the decision to cancel his bridging visa on 26
November 2006 was unlawful because the Department did not comply with the
procedural fairness processes prescribed by s 119 to s 121 of the Migration Act.
In particular, he claims that he was not given written notice of the intention
to cancel his visa before his visa was cancelled as required by s 119(1) of the
Migration Act. He further alleges that, in any event, the visa cancellation was
arbitrary.

6.1 Is there an
‘act’?

Mr Cherkupalli’s bridging visa was cancelled under s 116(1) of the
Migration Act. Section 116(1) allows, but does not require, a visa to be
cancelled if the Minister, or his or her delegate, is satisfied of one of a
number of specified circumstances. The decision to cancel a visa under s 116(1)
is therefore an ‘act’ of the Commonwealth within the meaning of the
AHRC Act.

6.2 Cancellation of
bridging visa inconsistent with article 9(1) of the ICCPR

It is unfortunate that this inquiry is taking place almost seven years after
the cancellation of Mr Cherkupalli’s bridging visa. The time delay
exacerbates the difficulty of determining precisely what happened on 26 November
2004. The officer who cancelled Mr Cherkupalli’s bridging visa concedes
she does not have a clear memory of the events of that night and does not recall
Mr Cherkupalli in particular.
Mr Cherkupalli’s statutory declaration sheds little light on what
occurred during the cancellation interview. He states:

We were then
called in for an interview one by one. The officers prepared the forms. I tried
to explain about the fact that I had only been working a few hours. They asked
me to sign the forms and I did.
The written record of what happened at the relevant time is contained in two
forms that were completed by the departmental officers at or about the time of
the decision to cancel Mr Cherkupalli’s bridging visa. The first form is a
Notice of Intention to Consider Cancellation and the other is a Record of
Decision Whether to Cancel Visa. Both of these forms record that Mr Cherkupalli
received notice of the intention to cancel his visa at 21:50 hours on 26
November 2004. The second form records that he was notified of the visa
cancellation at 21:30 hours on the same day; that is, 20 minutes before the time
recorded as the time when he received notice of the intention to cancel his
visa.
The act of cancelling Mr Cherkupalli’s bridging visa made him
vulnerable to being deprived of his liberty because the detention of unlawful
non-citizens is mandatory under s 189 of the Migration Act. Strict compliance
with the requirements of the Act in respect of visa cancellation is thus of
utmost importance. I am not satisfied that the requirements of s 119 to s 121 of
the Migration Act were complied with, and in particular the requirement of s
119(1) that the visa holder be given particulars of the grounds on which
cancellation is being considered and invited to show within a specified time
that those grounds do not exist or that there are reasons why the visa should
not be cancelled.
I am not satisfied that the forms completed by the departmental officers on
26 November 2004 accurately record what happened that evening. However, I am
satisfied that:
1. Mr Cherkupalli was given no meaningful opportunity to show why his visa
  should not be cancelled; and
2. it is likely that he was not invited to show within a specified time or at
  all that the grounds on which cancellation was being considered did not exist or
  that there was a reason why his visa should not be cancelled.
I think it likely that, as Mr Cherkupalli’s statutory declaration
indicates, both forms were completed more or less contemporaneously and without
Mr Cherkupalli being afforded the opportunity to speak against the
cancellation.
I note that the Department has conceded that, if a court were to review its
decision to cancel Mr Cherkupalli’s bridging visa, there is a reasonable
prospect that it may be set aside for jurisdictional error for apparent failure
to comply with the relevant statutory cancellation procedural
provisions.³
I am therefore satisfied that s 119 of the Migration Act had not been
satisfied at the time that Mr Cherkupalli’s bridging visa was
cancelled.
I conclude that the act of the Commonwealth cancelling Mr
Cherkupalli’s bridging visa was inconsistent with his right to liberty
recognised by article 9(1) of the ICCPR in that his visa was cancelled, with the
consequence that he became liable to mandatory detention, without the procedures
established by law being complied with.

6.3 No finding on
arbitrariness in the wider sense

I do not consider it necessary in the circumstances to make a further
finding on whether the cancellation of Mr Cherkupalli’s bridging visa was
arbitrary in the wider sense.

7 The decision to detain
under s 189 of the Migration Act

Mr Cherkupalli alleges that the Department did not follow the procedures
established by s 189 of the Migration Act when detaining him indefinitely at
VIDC on 26 November 2004. In particular, he claims that there could not have
been a reasonable basis for the suspicion that he was an ‘unlawful
non-citizen’ because the Department’s decision to cancel his visa
was invalid. Further, this error was on the face of the decision record.
As a consequence, Mr Cherkupalli submits that the entire period of his
detention from 26 November 2004 – 19 April 2006 was inconsistent with his
right to liberty under article 9(1) of the ICCPR.

7.1 Is there an
‘act’?

Under Australian law, the lawfulness of the decision to cancel Mr
Cherkupalli’s bridging visa is a separate issue to that of the lawfulness
of Mr Cherkupalli’s detention. The power to detain an individual until a
visa is granted or he or she is removed from Australia under the Migration Act
is contained in s 189 and s 196 of the Migration Act.⁴ Section 189(1)
of the Migration Act provided at the time that:

If an officer knows
or reasonably suspects that a person in the migration zone (other than an
excised offshore place) is an unlawful non-citizen, the officer must detain the
person.
Accordingly, in order to detain a person under s 189 of the Migration Act, a
departmental officer must either know or ‘reasonably suspect’ that
the person is an unlawful non-citizen. Once an officer of the Department has the
requisite knowledge or reasonable suspicion, detention under s 189(1) is
mandatory.⁵
In Ruddock v Taylor,⁶ the High Court discussed the meaning
of ‘reasonably suspects’ under s 189 of the Migration Act. The
majority found that ‘what constitutes reasonable grounds for suspicion
should be judged against what was known or reasonably capable of being known at
the relevant time’.⁷ Consequently, a ‘suspicion’
under s 189 of the Migration Act can still be ‘reasonable’ where it
is based on an opinion that is later found to be legally flawed.
The majority observed in Ruddock v Taylor, that each officer had been
provided with what, on its face, appeared to be a regular and effective decision
of the Minister to cancel the respondent’s visa. Each officer checked
whether the respondent held any other visa and only detained the respondent upon
finding that he did not hold another visa.⁸ It had not been suggested
that the officers had acted in bad faith. The majority concluded that the
suspicion held by each officer was reasonable in the
circumstances.⁹
In Goldie v Commonwealth of Australia and Others,¹⁰ Gray
and Lee JJ found that the word ‘reasonably’ required that a
suspicion that a person is an unlawful non-citizen be justifiable upon objective
examination of relevant material. In Goldie, the Department made a
decision to cancel the appellant’s visa based on a search of computer
records without having also searched the appellant’s file. The officer
formed the view that the appellant was an unlawful non-citizen and detained the
appellant under s 189(1) of the Migration Act. The appellant in fact held a
valid visa at the time he was detained. The Court found that there was an
‘absence of sufficient search or inquiry to make the formation of the
suspicion justifiable on objective
examination’.¹¹
The majority in Goldie considered that where an officer is aware of
conflicting facts, the reasonableness of any suspicion formed by the officer
must be judged in the light of the facts available to him or her at the
particular time.¹² The majority stated:

[T]he appropriate
construction of s 189 is that an officer, in forming a reasonable suspicion, is
obliged to make due inquiry to obtain material likely to be relevant to the
formation of that suspicion.¹³
Accordingly, I proceed on the basis that before a detaining officer can be
found to have a ‘reasonable suspicion’ that a person is an unlawful
non-citizen he or she is required to make sufficient inquiries to satisfy him or
herself that facts exist to support this state of mind. In my view, the steps a
detaining officer either takes or fails to take to inform him or herself of
facts sufficient to form the ‘reasonable suspicion’ required by s
189 of the Migration Act are ‘acts’ of the Commonwealth for the
purposes of the AHRC Act.

7.2 Decision to detain
under s 189 of the Migration Act inconsistent with article 9(1) of the
ICCPR

Mr Cherkupalli claims that the detaining officer could not have reasonably
suspected that he was an unlawful non-citizen because the document recording the
decision to cancel his bridging visa indicates that the decision to cancel his
bridging visa was made 20 minutes before he was given written notice of the
Department’s intention to cancel his bridging visa.
Mr Cherkupalli contends that it should have been plain to the detaining
officer handling his case that the cancellation of his bridging visa was tainted
with procedural error and therefore invalid.
I accept the Department’s submission that a reasonable suspicion may
be legally flawed. However, in light of the majority’s ruling in Ruddock v Taylor, it is necessary for me to assess whether the facts the
detaining officer was ‘reasonably capable of knowing at the relevant
time’ were compatible with a ‘reasonable suspicion’ that Mr
Cherkupalli was an unlawful non-citizen.
The departmental officer responsible for cancelling Mr Cherkupalli’s
bridging visa states that while the form called ‘Notice of Intention to
Cancel’ bears her signature, the handwriting in the form is not hers. She
has concluded from a reading of the records that another officer of the
Department commenced the interview and that she completed it and made the
decision to cancel Mr Cherkupalli’s bridging visa. Ms Stephens, the
departmental officer responsible for cancelling Mr Cherkupalli’s bridging
visa, states:

(W)hilst it is clear that I did make the decision to
cancel the visa, it is not clear on the documents provided who actually made the
decision to detain Mr Cherkupalli (I would suggest that the decision to detain
this client was not mine).
I accept that the detaining officer was probably not Ms Stephens but rather
another departmental officer. The material before me does not disclose what
documentation was before the detaining officer or what steps or checks he or she
undertook. It seems likely that the record of the decision to cancel Mr
Cherkupalli’s bridging visa was before the detaining officer and I so
conclude. As noted above, a significant anomaly is apparent on the face of this
document. It records that the decision to cancel the bridging visa was made at
21:30 hours while also recording that the visa holder received notice of
intention to consider cancelling his bridging visa at 21:50 hours on the same
day.
I conclude that the detaining officer ought to have examined the record of
the decision to cancel Mr Cherkupalli’s bridging visa and identified this
anomaly. Had he or she done so they would have been alerted to the possibility
that the requirements of the Migration Act had not been complied with and the
need to make due inquiry to satisfy themselves that it was reasonable to suspect
that Mr Cherkupalli was an unlawful non-citizen.
As indicated above, I am satisfied that if the detaining officer had made
proper inquiries they would have discovered that the requirements of s 119 to s
121 of the Migration Act had not been complied with. That is, in contrast to the
situation in Ruddock v Taylor discussed above, the error in this case was
‘reasonably capable’ of being known at the time the decision to
detain Mr Cherkupalli was made.
For the above reasons, I conclude that at the time the decision to detain Mr
Cherkupalli was made the delegate did not hold a reasonable suspicion that he
was an unlawful non-citizen. Accordingly, I conclude that the act of the
Commonwealth in deciding to detain Mr Cherkupalli in reliance on s 189 of the
Migration Act was inconsistent with his right to liberty recognised by article
9(1) of the ICCPR in that he was deprived of his liberty without the procedures
established by law being complied with.
I note that the Department submits that the apparent error in the decision
document does not lead to arbitrary detention because the same decision (to
cancel the visa) would have been made had the error been discovered earlier and
the decision revisited.
I respectfully note that this submission appears to accord limited respect
to an assumption inherent in the legislative requirement that the holder of a
visa be given the chance to show cause why his or her visa should not be
cancelled. That assumption is that the Minister or the delegate will consider
with an open mind whatever the visa holder puts forward and, as appropriate,
reconsider the initial tentative decision accordingly.
I do not consider it appropriate to speculate on whether, given the
appropriate opportunity, Mr Cherkupalli could have satisfied the delegate that
his visa should not be cancelled at all, or should not have been cancelled
immediately. In any event, the critical issue is whether the detaining officer
followed the procedures established by law when detaining Mr Cherkupalli. I have
concluded that the detaining officer did not.
Further, I note that Mr Cherkupalli has submitted that:

the lack
of satisfactory documentation disclosing any decision by the Department to
detain pursuant to either s 192 or s 189, yet alone disclosing any proper
consideration of the jurisdictional preconditions to detention of Mr Cherkupalli
under either of those sections is further evidence of the arbitrariness of his
detention.¹⁴
I accept that the absence of satisfactory documentation is in the
circumstances of this case a factor tending to suggest that the requirements of
the Migration Act were not followed. I once again stress that the keeping of
accurate records concerning decisions to detain individuals is an important
element of ensuring the protection of the right to liberty. The lack of
appropriate records in this case is a cause for concern.

8 No review of the legality
of Mr Cherkupalli’s detention

Mr Cherkupalli alleges that the Department failed to review the legality of
his detention and that this was inconsistent with article 9(1) of the
ICCPR.

8.1 Is there an
‘act’?

I accept that Mr Cherkupalli’s detention from shortly after his
bridging visa was cancelled on 26 November 2004 until 19 April 2006 was
purportedly authorised under s 189 of the Migration Act.
Any decision to detain a person on the grounds of ‘reasonable
suspicion’ under s 189 of the Migration Act carries with it a
responsibility to continue to assess the validity of the decision in the light
of further inquiries and information, to determine whether the suspicion
continues to exist and that it is still reasonably held.¹⁵
The failure to make sufficient inquiries to properly sustain the
reasonableness of the suspicion required by s 189 of the Migration Act is an
‘act’ of the Commonwealth for the purposes of the AHRC
Act.¹⁶

8.2 Failure to review
the legality of detention inconsistent with article 9(1) of the
ICCPR

Given that the right to liberty is at stake, a high degree of care is
required from departmental officers charged with the responsibility of ensuring
the requisite ‘reasonable suspicion’ continues throughout a
person’s detention under s 189 of the Migration Act.
The Department submits that ‘it did not become apparent that there
were possible problems with the bridging visa cancellation decision until early
February 2010’. This was well after Mr Cherkupalli was released from
immigration detention. The Department further submits that the relevant officers
held an ongoing reasonable suspicion that Mr Cherkupalli was an unlawful
non-citizen under s 189 of the Migration Act throughout the entire period of his
detention.¹⁷
As outlined in the chronology in Appendix 1, during the period of Mr
Cherkupalli’s detention, he made at least ten applications for a bridging
visa.
It has not been suggested that any of these applications were regarded as
invalid. I therefore conclude that one or more departmental officers considered
each of them. Proper consideration of each application would require a review of
Mr Cherkupalli’s file. A review of Mr Cherkupalli’s file should have
revealed the discrepancies on the face of the record of the cancellation of Mr
Cherkupalli’s bridging visa. For this reason, the fact that Mr Cherkupalli
may not have been an unlawful non-citizen was ‘reasonably capable’
of being known shortly after Mr Cherkupalli made his first application for a
bridging visa.
Mr Cherkupalli made his first application for a bridging visa on 29 November
2004. A departmental officer presumably considered this application within a
reasonable time thereafter. In the circumstances I consider that a reasonable
time for this purpose was in the order of two weeks. I therefore conclude that
the error was reasonably capable of being known on or about 13 December
2004.
The failure of the Commonwealth to review this aspect of Mr
Cherkupalli’s file, or alternatively to review it with reasonable care was
inconsistent with article 9(1) of the ICCPR because it rendered his detention in
reliance on s 189 of the Migration Act thereafter not ‘in accordance with
such procedures as are established by law’.

9 Failure to review
appropriateness of detention in an immigration detention centre

Mr Cherkupalli alleges that the Department’s failure to review the
appropriateness of his detention and the Department’s repeated decisions
to impose unreasonable bond requirements were both inconsistent with his right
to liberty under article 9(1) of the ICCPR.
In my letter setting out the acts or practices raised by the complaint that
appear to be inconsistent with or contrary to human rights (s 27 letter), I
dealt with these two allegations together as ‘the Department’s
failure or refusal to detain Mr Cherkupalli in a less restrictive detention
option other than detention in an immigration detention centre’.
In the Department’s response to the s 27 letter, it submitted that by
considering the possible grant of a bridging visa to Mr Cherkupalli, the
Department did consider the possibility of releasing Mr Cherkupalli from
immigration detention on a number of occasions prior to the eventual bridging
visa grant in April 2006. I accept this submission.
I will therefore deal separately with these two aspects of Mr
Cherkupalli’s complaint.

9.1 Is there an
‘act’?

As discussed above, s 189(1) of the Migration Act requires the detention of
persons reasonably suspected to be unlawful non-citizens. However, the Migration
Act did not require that Mr Cherkupalli be detained in an immigration detention
centre.
The definition of ‘immigration detention’ includes ‘being
held by, or on behalf of an officer in another place approved by the Minister in
writing’.¹⁸
Further, s 197AB of the Migration Act, which was inserted into the Migration
Act during Mr Cherkupalli’s detention on 29 June 2005,
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).¹⁹
In my view, it was within the power of the Minister to have approved Mr
Cherkupalli’s residing in a place other than the VIDC throughout his
detention. It was also within the Minister’s power to make a residence
determination in relation to Mr Cherkupalli under s 197AB of the Migration Act
from 29 June 2005 onwards.
I therefore consider that the failure by the Minister to consider or approve
detention in a place other than the VIDC or later to make a residence
determination to both be ‘acts’ of the Commonwealth under the AHRC
Act.

9.2 Failure to detain in
less restrictive form of detention inconsistent with article 9(1) of the
ICCPR

To avoid being arbitrary, detention must be necessary and proportionate. The
State must demonstrate that there is no less invasive means of achieving the
outcome that it seeks.
Mr Cherkupalli was detained in VIDC for 17 months after failing to comply
with the no work condition of his bridging visa. Mr Cherkupalli’s
detention in VIDC for 17 months would not be arbitrary if the Department could
show that it was necessary. However, the Department’s submissions do not
address this point and it has offered no justification for Mr
Cherkupalli’s ongoing detention in VIDC rather than in the community.
In the Department’s response to the s 27 letter, it submits that the
power in s 197AB of the Migration Act was initially used primarily for moving
family groups into community detention. It appears that it was also used mainly
where bridging visas were not available to effect release from detention.
The Department does not allege that the individual circumstances of Mr
Cherkupalli’s case justified continued detention in an immigration
detention centre because he posed a risk to the community or was a high risk
case for absconding or any other matter that might reasonably justify the extent
of the restriction on his liberty. Indeed, Mr Cherkupalli submits that he had
‘repeatedly made it clear to departmental officers that his desire and
intention was to obtain a student visa as quickly as possible so that he might
continue his studies’.²⁰
I therefore conclude that the Commonwealth’s failure to consider and
place Mr Cherkupalli in a less restrictive form of detention than an immigration
detention centre from the outset of and throughout Mr Cherkupalli’s
detention was inconsistent with article 9(1) of the ICCPR.

10 Refusal to grant a
bridging visa

Mr Cherkupalli alleges that the Department’s repeated decisions to
impose unreasonable bond requirements when considering his applications for
bridging visas were inconsistent with his right to liberty under article 9(1) of
the ICCPR.
Mr Cherkupalli submits that the Department continued to require, as a
condition to the grant of a bridging visa, a security bond of an amount that it
was informed he was unable to pay.²¹ I accept that the
Department’s decision to impose security bonds resulted in it failing to
grant Mr Cherkupalli a bridging visa.

10.1 Is there an
‘act’?

By virtue of s 73 of the Migration Act, it was within the Minister’s
power to issue Mr Cherkupalli with a bridging visa,²² provided the
Minister could be satisfied that Mr Cherkupalli would abide by any conditions if
imposed or security had been lodged where this had been
requested.²³
The grant of a bridging visa is thus a discretionary act. Further, the
imposition of a security bond is a discretionary act.
I therefore consider the Department’s refusal to grant Mr Cherkupalli
a bridging visa until 19 April 2006 an ‘act’ of the Commonwealth for
the purposes of the AHRC Act.

10.2 Refusal to grant a
bridging visa inconsistent with article 9(1) of the ICCPR

Mr Cherkupalli sought a bridging visa on at least ten occasions before he
was finally granted a bridging visa on 19 April 2006.
The Department has submitted that:

due to the individual
circumstances of his case, including the risk that he would not abide by further
immigration requirements, these visa (Bridging Visas) were not granted and Mr
Cherkupalli remained in detention.

...

When Mr Cherkupalli’s individual circumstances changed, the Minister
withdrew from the Federal Court case and the Department’s approach to
reviewing the cases of clients in detention changed, a Bridging Visa was in fact
granted and he was released from detention. This indicates that the period of
detention was based on Mr Cherkupalli’s individual circumstances, and on
reasonable and proportionate criteria, and therefore not
arbitrary.²⁴
In its response to the s 27 letter, the Department notes that the Migration
Review Tribunal affirmed three of these decisions.
In seven of the ten applications, the Department imposed a condition that Mr
Cherkupalli provide a security deposit. The deposit sought was:
1. $10 000 on the applications dated 20 June, 8 July and 14 July 2005;
  and
2. $8 000 on the applications dated 19 August, 19 September, 29 September and
  5 October 2005.
It appears that the purpose of the Department’s insistence on a bond
was to ‘encourage compliance with visa conditions’. Mr
Cherkupalli’s submissions refer to a policy document concerning the
security bond identified as ‘Migration Series Instruction 388’. This
document purportedly stated at the time that ‘a decision maker must ask
for a security bond which is sufficiently high to act as a strong incentive to
encourage compliance with visa conditions’.²⁵
The Department has submitted that ‘at the time, Migration Series
Instruction 388 provided policy guidance to departmental officers that if a bond
was requested, $10 000 was a reasonable amount’. The Department further
submits that the fact that it reduced the bond requested to $8 000 and then
ultimately did not insist on a bond is evidence that it considered Mr
Cherkupalli’s circumstances when setting the bond.
In the Department’s response to the s 27 letter, it submits that the
Department ‘continues to believe that its decisions, including those in
relation to the imposition of the bond, were appropriate in the circumstances
and within the policy framework at the time’.
The refusal to grant Mr Cherkupalli a bridging visa resulted in his
detention in an immigration detention centre for a period of 17 months because
he worked, apparently for a few hours, in contravention of his visa conditions.
In my view, the legitimate aim of encouraging compliance with visa conditions
does not justify Mr Cherkupalli’s prolonged detention and the extreme
interference with his right to liberty under article 9(1) of the ICCPR.
The legitimate aim of ensuring compliance with visa conditions could have
been achieved in this case through less invasive and more proportionate means
such as imposing reporting conditions on the bridging visa.²⁶ I
therefore conclude that the Commonwealth’s refusal to grant Mr Cherkupalli
a bridging visa was inconsistent with article 9(1) of the ICCPR.

11 The failure to afford Mr
Cherkupalli an opportunity to comment and the refusal to grant student
visa

Mr Cherkupalli alleges that the Department failed to provide him with an
opportunity to comment on whether he ‘substantially complied with the no
work condition of his bridging visa’ when determining whether to grant him
a student visa.
He says that this act prolonged his detention in VIDC because, had the
delegate asked Mr Cherkupalli for his comments, the delegate would have learned
that the day he was found working at Michel’s Patisserie was the first and
only day he worked in non-compliance with the no work condition and that he had
only worked for a few hours to fill in for a friend.
Mr Cherkupalli claims that had the delegate known this information, the
delegate would have concluded that he had ‘substantially’ complied
with the no work condition and a student visa would have been granted.
In support of this argument, he points to the fact that the Department
ultimately granted him a student visa on 29 October 2007 after it provided him
with an opportunity to provide information on 6 February 2006. Mr Cherkupalli
claims that had an opportunity to comment been provided initially, he would have
been granted a student visa and released from detention in or around December
2004.

11.1 Is there an
‘act’?

I accept that a decision to grant Mr Cherkupalli a Student (Temporary)
(Class TU) Visa under Regulation 572.212 and in particular, the decision to not
provide Mr Cherkupalli with an opportunity to comment on the case against him,
are exercises of discretion and therefore ‘acts’ of the Commonwealth
for the purposes of the AHRC Act.

11.2 No finding on
failure to provide an opportunity to comment and refusal to grant student
visa

I note that the Department refused Mr Cherkupalli’s application for a
student visa on 22 December 2004 and that the Minister consented to the remittal
of Mr Cherkupalli’s application for a student visa on 18 November 2005. I
also note that on 6 February 2006 the Department wrote to Mr Cherkupalli
inviting him to comment on information which was relied upon to refuse the
student visa application.
I acknowledge that the Department granted Mr Cherkupalli a student visa
after receiving his comments. The inference is therefore open that the student
visa was granted because of his comments. However, this is not the only possible
explanation. Other factors could have been influential on the Department. I
note, for example, that in mid-April 2006 members of the Wollongong community
wrote to senior departmental officers on his behalf. Other factors may also have
been influential including the irregularities attending the earlier cancellation
of his bridging visa, the period that he had spent in detention and possible
changes in Departmental policy.
While I accept that both the failure to afford Mr Cherkupalli an opportunity
to comment and the refusal to grant him a student visa on 22 December 2004 were
inconsistent with the requirements of the Migration Act, I am not persuaded that
if he had been granted that opportunity he would have been immediately granted a
visa or that he would have been granted a visa earlier than in fact proved to be
the case.

12 Inexplicable
administrative delay

Mr Cherkupalli also alleges that the Department’s inexplicable delay
in granting him a student visa following the remittal of his application
prolonged his detention in VIDC and was inconsistent with article 9(1) of the
ICCPR.

12.1 Is there an
‘act’?

I accept that the alleged ‘inexplicable delay’ by departmental
officers can constitute an ‘act’ of the Commonwealth for the
purposes of the AHRC Act.²⁷

12.2 No finding on inexplicable administrative
delay

The Department took approximately 23 months – or almost two years
– to make a decision on Mr Cherkupalli’s remitted student visa
application. I note that prior to the Department granting Mr Cherkupalli a
student visa, he was released from detention on a grant of a bridging visa on 19
April 2006.
The period taken to process Mr Cherkupalli’s student visa seems, on
its face, to be unreasonably long.
The Department submits that Mr Cherkupalli’s student visa application
contained outstanding processing requirements which delayed the processing of
his application. In particular, it appears that Mr Cherkupalli took some time in
providing the required financial and medical documents and that the financial
documents needed to be verified in New Delhi twice. The Department submits that
at least part of the delay was therefore reasonable and within the control of Mr
Cherkupalli.
I accept that the delay was in part caused by Mr Cherkupalli’s failure
to provide adequate documentation. However, the Department has not provided any
justification for the 80 day period between the remittal order made on 18
November 2005 and its first letter to Mr Cherkupalli inviting his comments which
is dated 6 February 2006. I assume that no reasonable justification can be
provided.
Accordingly, I am satisfied that the administrative delay in writing to Mr
Cherkupalli to invite his comments was unreasonable. I am also of the view that
delay in the processing of applications that could result in a person being
released from detention in an immigration detention centre can be inconsistent
with the right to liberty.
However, in the circumstances of this case, I am not satisfied that the
delay of 80 days following the issue of the consent remittal orders on 18
November 2005 prolonged Mr Cherkupalli’s detention in an immigration
detention centre. Mr Cherkupalli was released from the VIDC on 19 April 2006
after members of the Wollongong community made representations to senior
departmental officers and after lodging a further application for a bridging
visa. I am not persuaded that, had the 80 days’ delay not occurred, a
student visa would have been granted to Mr Cherkupalli earlier than this date.
In these circumstances, I make no finding in relation to the departmental
officers’ inexplicable administrative delay in processing Mr
Cherkupalli’s student visa application.

13 Failure to provide
judicial review

Mr Cherkupalli also alleges that ‘the conduct of the Department
violated article 9(4) of the ICCPR in that no substantive judicial review of the
continued necessity of his detention was available to him’.
Article 9(4) of the ICCPR provides that:

Anyone who is deprived
of his liberty by arrest or detention shall be entitled to take proceedings
before a court, in order that that court may decide without delay on the
lawfulness of his detention and order his release if the detention is not
lawful.
Mr Cherkupalli’s submissions do not specify how the provision of
judicial review is within the discretion of the Commonwealth, its officers or
its agents. I conclude that the failure to provide judicial review of the
continued necessity of Mr Cherkupalli’s detention is a consequence of the
law and not an ‘act’ of the Commonwealth within the meaning of the
AHRC Act.

14 Recommendations

14.1 Power to make
recommendations

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.²⁸ The
Commission may include in the notice any recommendation for preventing a
repetition of the act or a continuation of the practice.²⁹
The Commission may also recommend:
1. the payment of compensation to, or in respect of, a person who has suffered
  loss or damage; and
2. the taking of other action to remedy or reduce the loss or damage suffered
  by a person.³⁰
In making my recommendations, I have considered the detailed submissions of
Mr Cherkupalli. The Department has not made any submissions in reply to these
submissions.

14.2 Compensation

(a) Consideration of
compensation

There is no judicial guidance dealing with the assessment of recommendations
for financial compensation for breaches of human rights under the AHRC Act.
However, in considering the assessment of 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.³¹
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.³²
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 cannot
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.
Notwithstanding this important distinction, the damages awarded in false
imprisonment cases 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.
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).³³
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.
In Taylor v Ruddock,³⁴ the Court found that the plaintiff
was unlawfully imprisoned and awarded him $50 000 for the first period of 161
days and $60 000 for the second period of 155 days. 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.³⁵
In Goldie v Commonwealth of Australia & Ors (No 2),³⁶ Mr Goldie was awarded damages of $22 000 for false imprisonment being wrongful
arrest and detention under the Migration Act for four days.
In Spautz v Butterworth,³⁷ 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.
In El Masri v Commonwealth (DIAC),³⁸ I recommended that
the Commonwealth pay the complainant $90 000 as compensation for the 90 days he
was arbitrarily detained in an immigration detention centre.

(b) Recommendation that
compensation be paid for loss of liberty

I have found that the decisions to detain Mr Cherkupalli under s 192 of the
Migration Act and under s 189 of the Migration Act were inconsistent with
article 9(1) of the ICCPR. I have also found the Department’s refusal to
grant Mr Cherkupalli a bridging visa was inconsistent with article 9(1) of the
ICCPR.
I have therefore found that Mr Cherkupalli was arbitrarily deprived of his
liberty from 26 November 2004 to 19 April 2006; a period of 509 days.
Mr Cherkupalli seeks financial compensation for his arbitrary detention in
the amount of $1 000 per day of detention. He submits that this is consistent
with the Commission’s decision in El Masri and assumes a lower
daily rate than the decisions in Taylor v Ruddock, Goldie v Commonwealth and
Spautz v Butterworth.
I consider that the Commonwealth should pay to Mr Cherkupalli an amount of
compensation to reflect the 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’.
Assessing compensation in such circumstances 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 is appropriate. Mr Cherkupalli did not have a criminal record nor did he
commit a crime by working in breach of his visa conditions. I am therefore of
the view that Mr Cherkupalli would have felt the disgrace and humiliation
experienced by a person of good character. I note his comments
that:

I am no longer credible, who would believe that I was sent to
a detention centre for going to work for four hours. That is what I have done
wrong, who is going to believe the government kept me detained for 17 months for
working for four hours. They will think I have done something very bad. I have
never been in trouble before. I was ashamed and embarrassed at finding myself in
detention. How do I explain this to my mother and sister?³⁹

(c) Recommendation that
compensation be paid for loss of earnings and costs

Mr Cherkupalli has also submitted that his detention has had lasting impacts
on his visa and employment prospects. He has therefore requested a
recommendation for additional compensation in the amount of $250 000 in respect
of his loss of earnings and further visa application costs. He submits that this
amount is an estimate based on the following assumptions and
calculations.
1. That Mr Cherkupalli would have been earning a starting salary of $75 000
  per annum indexed by $5 000 from June 2006 for four years;
2. Offset by Mr Cherkupalli’s salary earned working as a part time
  technician for 20 hours per week estimated at $25 000 per annum over four
  years;
3. $20 000 for additional educational and visa costs for amount lost due to
  additional expenses of applying for a further student visa.
I note that this estimate is imprecise. For example, the University of
Sydney website states that:

The starting salary for engineering and
IT graduates is approximately $50 000 per annum or higher, and will continue to
increase with the skills shortage.⁴⁰
Further, the amount of $20 000 claimed for visa and educational costs has
not been particularised. However, I note that in Ms Jelen’s Social Work
report of 22 April 2010, she writes that Mr Cherkupalli’s detention
resulted in his inability to attend his University course and that he was forced
to forfeit prepaid student fees in the amount of $57 000.
In my view, the loss of earnings Mr Cherkupalli claims would have commenced
in mid-2007, not 2006, as he would have needed to complete his studies and
obtain a permanent residence visa before realising these earnings. This loss
will presumably continue until he is granted a visa which allows him to work for
longer than 20 hours per week. There is no certainty that this will happen soon
or at all.

In the absence of better particulars and opposing submissions from the
Department, I am prepared to recommend an amount of $232 000 to represent Mr
Cherkupalli’s loss of earnings. This amount is based on the following
calculations:
1. $250 000 ($50 000 x 5 years);
2. Offset by $125 000 ($25 000 x 5 years);
3. Additional $50 000 for likely pay rises during 5 year
  period;
4. $57 000 for forfeited prepaid educational costs.

(d) Recommendation that
compensation be paid for future treatment costs

Finally Mr Cherkupalli submits that I should recommend compensation for
future treatment costs to address the psychological impacts of his
detention.
I note that Ms Jelen, a Social Worker in the Client Assessment &
Referral Unit of Legal Aid NSW, reports that Mr Cherkupalli’s detention
has had a lasting psychological impact on him. She writes that ‘Mr
Cherkupalli readily identified his detention as a psychologically catastrophic
life event that continues to have a harmful influence on his life’. She
considered it was reasonable to conclude that Mr Cherkupalli suffers from
post-traumatic stress disorder and possibly also depression.⁴¹
I note that Ms Jensen refers to research undertaken by Dr Louise Newman,
Psychiatrist, and Dr Christine Phillips, General Practitioner and Senior
Lecturer, that concludes that ‘in the community, the incidence of PTSD and
depression has been identified in 60-85% of individuals who have been detained
in immigration detention centres’.⁴²
Prior to being detained, Mr Cherkupalli described his life as being
‘happy, I had my family, friends, I was normal. I had dreams of having a
good job, getting married, having kids. There was satisfaction and joy in
living.’ Mr Cherkupalli states that after being released from detention:
‘Inside is killing me. I have nothing, no family, no friends, no hope or
dreams. I don’t feel’.
Ms Jensen concludes that she has no doubt ‘Mr Cherkupalli’s
experience of being detained for 17 months and then being abruptly released at
7pm at night would have left him frightened, disoriented and highly
anxious’. She suggests that his incarceration at VIDC resulted in an
extreme and intense negative emotional response and loss of physical integrity.
Ms Jensen states that ‘Mr Cherkupalli remains in a state of hopelessness
and believes he has no real control over his life’.
Mr Cherkupalli complains that he is now socially isolated owing to his
inability to re-establish contact with his family in India due to his shame of
being detained. Mr Cherkupalli has physiological symptoms, including headaches
and sleeplessness. Mr Cherkupalli submits that he has no access to Medicare in
his present visa situation and lacks the financial resources necessary to pay
for medical or therapeutic intervention.
Mr Cherkupalli has claimed an amount of $11 685 to $20 685 for appointments
with a psychiatrist and a psychologist plus a reasonable amount for medication
costs. I note that this amount is based on an estimate of treatment costs
provided to the Commission on 4 February 2011.
In my view, it is appropriate to recommend an additional amount of $15 000
compensation be paid to Mr Cherkupalli representing his reasonable future
treatment costs.

14.3 Change to policy or
operations

As mentioned in the body of this report, the keeping of accurate records
concerning decisions to detain individuals is an important element of ensuring
the protection of the right to liberty. The lack of appropriate records in this
case is a cause for concern.
I note that in the Department’s response to the s 27 letter, it states
that:

Many of the Department’s processes have been improved
since the events under examination occurred. This is particularly true of the
records which are made when detaining suspected unlawful non-citizens.
Nonetheless, I recommend that the Department ensure that its staff receive
training in the importance of protecting the right to liberty and, in that
context, the importance of maintaining accurate and detailed records of
decisions made and the reasons for those decisions.
I recommend that, to the extent possible, the Department provide training to
all ‘officers’ within the meaning of the Migration Act on the proper
exercise of the discretion to detain under s 192(1) of the Migration Act.
I recommend that:
1. detaining officers considering whether to detain a non-citizen whose visa
  has recently been cancelled be required to check carefully the record of the
  decision cancelling the visa for errors, including possible procedural errors on
  the face of the document, before making the detention decision; and
2. officers reviewing the legality of a person’s detention be required to
  pay particular attention to the record of the visa cancellation decision for any
  potential errors on the face of the document.
I recommend that regular reviews of non-citizen’s detention under s
189 of the Migration Act include consideration of whether the non-citizen is in
the least restrictive form of detention.

14.4 Ministerial
intervention under s 351 of the Migration Act

In the circumstances of this particular case, it appears that Mr
Cherkupalli’s detention has led to his inability to apply for a permanent
residence visa.
Mr Cherkupalli submits that his aspiration, when he came to Australia, was
to complete his studies in engineering and obtain a permanent visa to reside in
Australia. He submits that had he not been detained, he would have completed his
engineering qualifications by mid 2007 and would have had sufficient points to
qualify for permanent residency ‘Skilled Independent Visa – subclass
136 visa’ at that time.⁴³
However, Mr Cherkupalli submits that he was unable to complete his studies
prior to his 30th birthday due to not being released from detention until 19
April 2006.
Further, the law changed on 1 September 2007 and Mr Cherkupalli does not now
meet the criteria for a skilled independent visa under the current Migration
Regulations.⁴⁴
On 31 May 2011, Mr Cherkupalli applied for the second time for a ministerial
intervention under s 351 of the Migration Act. On 26 September 2010, the
solicitor acting for Mr Cherkupalli informed the Commission that the Minister
has declined to exercise his powers under s 351 of the Migration Act.
Section 351 of the Migration Act provides the Minister with a discretion to
substitute for a decision of the Tribunal another more favourable decision
regardless of whether the Tribunal had the power to make that other decision. In
exercising this power, the Minister is not bound by certain provisions of the
Migration Act.
The current guidelines on the exercise of ministerial powers under s 351 are
found in the Procedures Advice Manual 3 which states:

The public
interest may be served through the Australian Government responding with care
and compassion where an individual’s situation involves unique or
exceptional circumstances.

The ministerial guidelines include the following relevant factors for
assessing whether a case involves ‘unique or exceptional
circumstances’:
1. circumstances that may bring Australia’s obligations under the ICCPR
  into consideration;
2. compassionate circumstances regarding the psychological state of the person
  such that a failure to recognise them would result in irreparable harm and
  continuing hardship to the person.
In my view, Mr Cherkupalli’s situation involves ‘unique or
exceptional circumstances’ in light of my findings that the Department has
acted inconsistently with Mr Cherkupalli’s human rights.
I am also satisfied that Mr Cherkupalli’s detention resulted in his
failing to generate sufficient points to apply for a permanent visa in
mid-2007.
I therefore recommend that the Minister reconsider Mr Cherkupalli’s
application under s 351 of the Migration Act in light of my above findings and
in particular, my finding that the cancellation of his bridging visa was not
authorised by s 119 to s 121 of the Migration Act.
The intent of this recommendation is to place Mr Cherkupalli into the
position he would have been in had he not been detained by the Department but
rather had completed his studies and applied for a permanent residence visa in
mid-2007 under the law as it was prior to the changes effected on 1 September
2007.

14.5 Apology

In addition to the above recommendations, I consider that it is appropriate
that the Commonwealth provide a formal written apology to Mr Cherkupalli for the
breaches of his right to liberty 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.⁴⁵

15 Department’s
response to the recommendations

On 6 October 2011, I provided a Notice under s 29(2)(a) of the AHRC Act
outlining my findings and recommendations in relation to the complaint made by
Mr Cherkupalli.

By letter dated 31 October 2011 the Department provided the following
response to my findings and recommendations:

AHRC
recommendation: The Commonwealth pay financial compensation to Mr Cherkupalli in
the sum of $597,000.

DIAC’s response: Not agreed at this stage. The Department notes the
President’s recommendation with regards to compensation payable to Mr
Cherkupalli. Mr Cherkupalli has a separate ongoing compensation claim in the
Supreme Court of New South Wales concerning the substance of the complaint. The
recommendation will be considered in light of that litigation.

AHRC recommendation: The Department ensure that its staff receive
training in the importance of protecting the right to liberty and, in that
context, the importance of maintaining accurate and detailed records of
decisions made and the reasons for those decisions.

DIAC’s response: Agreed. The Global Learning and Change Branch in DIAC
provides core and foundation training which Is available to all staff. Some of
the learning products which are relevant are:

Australia’s Legal
System

Making a Decision

Legend.

Role-specific training is also delivered for DIAC officers who carry out
roles in the following areas:

Visa and Migration

Border Management

Visa Compliance and Status Resolution (CSR)

Onshore Detention Network and Offshore asylum seeker management roles.

The CSR Basics program and the Entry Officer Training course include a
module, Module 10 Cancellations Process, which is designed to provide
participants with an introduction to the legislation, policy and procedures that
govern the cancellation of temporary and substantive visas. Staff in all CSR
roles must attend this training.

This module covers the topic of ‘Responding to a NOICC’ (see p.
49 heading 3.2.4 of ‘Mod 10 — PG Cancellation Processes) which is
attached. In addition, staff in most DIAC roles who have visa cancellations as a
part of their duties, continue on to undertake further Cancellations training
delivered by staff from the Compliance Policy Section. This training consists of
a further 1-2 days face-to-face training.

AHRC recommendation: To the extent possible, the Department provide
training to all ‘officers’ within the meaning of the Migration Act
on the proper exercise of the discretion to detain under s 192(1) of the
Migration Act.

DIAC’s response: Agreed. The Compliance Field Visits (CFV) training
course is a Certificate IV in Government (Statutory Compliance), with Australian
Forensic Services (AFS) providing accreditation.

DIAC’s CFV training course is designed to introduce a range of standard
practices and equipment for DIAC Compliance officers to learn to use and adopt
in support of Compliance related activities. Module 18 of the CFV training
course covers the various powers of detention under the Migration Act 1958 (the
Migration Act) as well as the differences between those powers.

The training directly related to s.192 of the Migration Act (delivered and
facilitated by Compliance Policy) is Module 18D – Questioning and
Suspected UNC and detaining a UNC – Immigration Detention s.192 –
which is also attached.

Participants are assessed by Compliance Policy on their ability to
demonstrate a knowledge of s.192 of the Migration Act. The assessment method is
that participants must satisfactorily complete the specified individual and
group activities in Module 18D – Questioning and-Suspected UNC and
detaining a UNC – Immigration Detention s.192 – as well as
demonstrate their ability to apply the legislation to practical scenarios. This
is assessed by Compliance Policy and AFS. The workbook is attached.

AHRC recommendation: Detaining officers considering whether to detain a
non-citizen whose visa has recently been cancelled be required to check
carefully the record of the decision cancelling the visa for errors, including
possible procedural errors on the face of the document, before making the
detention decision.

Officers reviewing the legality of a person’s detention be
required to pay particular attention to the record of the visa cancellation
decision for any potential errors on the face of the document.

DIAC’s response: Agreed. The ‘Mod 10 — PG Cancellation
Procedures’ states that:

‘Throughout all of the steps in the visa cancelling process, attention
to detail is essential. It is critical to pay attention to factors such as
identifying the correct person and the correct address and specifying the exact
visa which is to be cancelled. Accurate record keeping is also essential to
ensure data integrity and maintain an evidence based and transparent decision
process.’

Sections 3.1 and 3.2 specifically address what must be considered prior to
any visa cancellation as well as the necessary steps to complete.

AHRC recommendation: Regular reviews of a non-citizen’s detention
under s.189 and s.190 of the Migration Act include consideration of whether the
non-citizen is in the least restrictive form of detention.

DIAC’s response: The Control Framework for Detention Related Decision
Making specifies how DIAC uses its business processes, people and systems to
mitigate the risk of a person:

being detained unlawfully;

being kept in an
inappropriate place of detention;

being detained for longer than necessary;
or

not being managed to a timely immigration outcome.

The Control Framework was initially implemented at the end of 2006. It
consisted of 17 identified decision points in the compliance pathway —
referred to as Mandatory Control Points (MCPs) —which represent a
significant level of risk to decision makers, clients, the department and other
stakeholders.

Of the 17 identified MCPs, 10 were implemented and were embedded within the
Compliance, Case Management, Detention and Settlement (CCMDS) Portal to achieve
consistency of decision making, managerial oversight, and a durable, reviewable
and accessible record.

The ‘Control Framework for Detention Related Decision Making’ has
the full details of DIAC’s processes in this area and is attached.

AHRC recommendation: The Minister re-consider Mr Cherkupalli’s
application under s.351 of the Migration Act in light of my above findings and
in particular, my finding that the cancellation of Mr Cherkupalli’s BVC
was not authorised by ss119-121 of the Migration Act.

DIAC’s response: Not agreed at this stage. When the Minister considered
Mr Cherkupalli’s request for Ministerial Intervention on 12 September
2011, he was aware of the preliminary views of the AHRC. The Minister decided
not to intervene in this case.

The Minister has specified in his guidelines that he does not wish to
consider repeat requests unless the Department is satisfied that there has been
a significant change in circumstances, or new and substantive claims involving
unique or exceptional circumstances.

On the information available, the Department is not satisfied that Mr
Cherkupalli’s circumstances have changed or that there is any new
information that would bring his case within the ambit of the Minister’s
guidelines, or otherwise warranting a repeat referral to the Minister. As such,
the Department does not have grounds to initiate a repeat request to the
Minister on behalf of the client.

Nevertheless, if there is new information or a change in circumstances, Mr
Cherkupalli or his authorised representative could lodge a further request for
Ministerial Intervention. Any such request would be processed in accordance to
the Minister’s guidelines.

AHRC recommendation: The Commonwealth provide a formal written apology
to Mr Cherkupalli for the breaches of his human rights identified in this
report.

DIAC’s response: Not agreed at this stage. The Department notes the
President’s recommendation to provide a formal written apology to Mr
Cherkupalli. The Department will consider this recommendation in light of
ongoing litigation involving Mr Cherkupalli.
I report accordingly to the Attorney-General.

Catherine Branson

President

Australian Human Rights Commission

March 2012

Appendix 1:
Chronology

Date	Action
30 July 2003	Arrived on offshore subclass 574 (Postgraduate Research Sector) visa (‘no work’ condition)
6 August 2003	Granted subclass 574 visa onshore (work limitation condition)
13 August 2004	Subclass 574 visa expired
9 September 2004	Applied for student visa onshore and was granted Bridging Visa C with condition 8101 (no work)
26 November 2004	Bridging Visa C cancelled under s 116(1)(b) of the Migration Act for breach of ‘no work’ condition and detained under s 189 of the Migration Act at Villawood Immigration Detention Centre (VIDC)
29 November 2004	Applied for bridging visa
1 December 2004	DIAC refuses application for bridging visa
2 December 2004	Application lodged with Migration Review Tribunal (MRT) to review refusal to grant bridging visa
13 December 2004	MRT affirms DIAC’s decision to refuse bridging visa
22 December 2004	Student visa application refused by DIAC due to non-compliance with ‘no work’ condition of Bridging Visa C
4 January 2005	Lodged application for review of student visa refusal with MRT but the fee waiver was refused and the application for review was deemed ineligible
13 January 2005	Application for bridging visa lodged
17 January 2005	DIAC refuses bridging visa (DIAC claimed no amount of security would provide assurance of compliance with visa conditions)
19 January 2005	Application to review decision to refuse bridging visa lodged with MRT
31 January 2005	MRT affirms DIAC’s decision to refuse bridging visa
31 March 2005	MRT decision - refusal of application to review student visa refusal on the basis that application ineligible - complainant did not pay application fee and application for fee waiver refused
25 May 2005	Letter to Minister Vanstone seeking Ministerial Intervention under s 351 of the Migration Act
20 June 2005	Applied for bridging visa - DIAC asked for $10 000 security - application withdrawn because complainant could not afford
8 July 2005	Applied for bridging visa - DIAC asked for $10 000 security - application withdrawn because complainant could not afford
14 July 2005	Applied for bridging visa - DIAC asked for $10 000 security - application withdrawn because complainant could not afford
19 August 2005	Applied for bridging visa - DIAC asked for $8 000 security - application withdrawn because complainant could not afford
30 August 2005	DIAC informs Minister will not exercise power under s 351 of the Migration Act
2 September 2005	Application for judicial review in Federal Magistrates Court (FMC) of MRT decision dated 31 March 2005
19 September 2005	Applied for bridging visa - DIAC asked for $8 000 bond - application withdrawn because complainant could not afford
29 September 2005	Applied for bridging visa - DIAC asked for $8 000 bond - application withdrawn because complainant could not afford
5 October 2005	Applied for bridging visa - DIAC asked for $8 000 bond - application withdrawn because complainant could not afford
18 November 2005	Minister withdrew from FMC proceedings regarding the student visa refusal (failure to provide opportunity to respond to the refusal) - decision remitted by consent to DIAC for reconsideration
6 February 2006	DIAC sent letter seeking comments regarding substantial non-compliance with conditions of Bridging Visa C
20 February 2006	Letter to DIAC responding to letter seeking comments
19 April 2006	Applied for bridging visa - granted and released from VIDC
29 October 2007	Student visa subclass TU 573 granted
April 2009	Completed Master of Engineering Studies

Note the sum of $597 000 was reported in the summary of the Notice under s
29 of the AHRC Act. The correct total of the calculations set out in part 14 of
the Notice and this Report is $697 000.
Secretary, Department of Defence v HREOC, Burgess & Ors (‘Burgess’) (1997) 78 FCR 208.
Email from Kenneth Truelsen of the Department to Rebecca Gieng of the
Commission, dated 17 February 2010.
Al Kateb v Godwin (2004) 219 CLR 562.
Ruddock v Taylor (2005) 222 CLR 612, 622.
Ibid.
Ibid, 622.
Ibid, 628.
Ibid, McHugh and Kirby JJ dissented at 651. McHugh J found that a mistaken
belief that a visa had been lawfully cancelled is a mistake of law, and
therefore cannot be a reasonable suspicion within the meaning of s 189. Kirby J
agreed. Further, he stated that basic principles of statutory construction are
protective of fundamental rights and freedoms and dictate that a section which
purports to deprive a person of his or her liberty must be strictly construed.
See also Re Bolten; Ex parte Beane (1987) 162 CLR 514, 523.
[2002] FCA 433.
Ibid, [17] (Gray and Lee JJ).
Ibid, [6] (Gray and Lee JJ).
Ibid, [6] (Gray and Lee JJ).
Mr Cherkupalli’s submissions, 21 December 2010, 10 [46].
See Legal Opinion prepared by the Australian Government Solicitor for
Department of Immigration, Multiculturalism and Indigenous Affairs, reported in
the Inquiry into the Circumstances of the Immigration Detention of Cornelia
Rau, 6 July 2005, 23; Procedure Advice Manual, National Compliance
Operational Instructions – Powers to detain, [PA 135.3], Overview s 189, Maintaining Reasonable Suspicion.
This is consistent with my view in El Masri v Commonwealth (DIAC)
[2009] AusHRC 41.
Email from Kenneth Truelsen of the Department to Prabha Nandagopal of the
Commission, 4 February 2011.
Migration Act 1958 (Cth), s 5.
Migration Amendment (Detention Arrangements) Act 2005 (Cth).
Mr Cherkupalli’s submissions, 21 December 2010, [14].
Mr Cherkupalli’s submissions, 21 December 2010, [59] and letters
referred to therein.
The Department concedes that bridging visas were available to Mr
Cherkupalli throughout his detention. I also note that at various points
throughout Mr Cherkupalli’s detention, he was ‘awaiting a visa
determination’ and therefore met the relevant precondition for the grant
of a bridging visa under s 73 of the Migration Act.
See Migration Regulations 1994, sub regulations 050.223 and 050.224, as
they then were.
Email from Kenneth Truelsen of the Department to Prabha Nandagopal of the
Commission, 4 February 2011.
Mr Cherkupalli’s submissions, 21 December 2010, 15 [59].
For example, condition 8402 provides that the holder must report (a) within
5 working days of grant to an office of immigration; and (b) to that office on
the first working day of every week after reporting under paragraph (a).
See El Masri v Commonwealth (DIAC) [2009] AusHRC 41.
AHRC Act, s 29(2)(a).
AHRC Act, s 29(2)(b).
AHRC Act, s 29(2)(c).
Peacock v The Commonwealth (2000) 104 FCR 464, 483 (Wilcox J).
See Hall v A&A Sheiban Pty Limited (1989) 20 FCR 217, 239
(Lockhart J).
Cassell & Co Ltd v Broome (1972) AC 1027, 1124; Spautz v
Butterworth & Anor (1996) 41 NSWLR 1 (Clarke JA); Vignoli v Sydney
Harbour Casino [1999] NSWSC 1113 (22 November 1999), [87].
Taylor v Ruddock (unreported, 18 December 2002, NSW District Court
(Murrell DCJ)).
Taylor v Ruddock (unreported, 18 December 2002, NSW District Court
(Murrell DCJ)), [140]. On appeal, the Court of Appeal of New South Wales
considered that the award was low but in the acceptable range. The Court noted
that ‘as the term of imprisonment extends the effect upon the person
falsely imprisoned does progressively diminish’: Ruddock v Taylor [2003] NSWCA 262 [49]-[50].
[2004] FCA 156.
(1996) 41 NSWLR 1 (Clarke JA).
Above note 27, [376].
Ms Mary Jelen, Social Work Consultant, Client Assessment & Referral
Unit, Legal Aid NSW, Social Work Report, 22 April 2010, 5.
Engineering & Information Technology course information, University of
Sydney, at http://www.eng.usdy.edu.au/apply/courses.html, viewed 14 September
2011.
Ms Mary Jelen, Social Work Consultant, Client Assessment & Referral
Unit, Legal Aid NSW, Social Work Report, 22 April 2010, 6-7.
Ibid, 7.
Mr Cherkupalli’s submissions, 21 December 2010, 19 [17].
Ibid.
S Shelton, Remedies in International Human Rights Law (2000),
151.

Search

AusHRC 49: Cherkupalli v Commonwealth of Australia (Department of Immigration & Citizenship)

2012

Cherkupalli v Commonwealth of Australia (Department of Immigration & Citizenship)

Report into arbitrary detention

[2012] AusHRC 49

Contents

1 Introduction

2 Summary

2.1 Summary of findings

2.2 Summary of recommendations

3 Complaint

4 Legislative framework

4.1 The Commission can inquire into ‘acts’ or ‘practices’ of the Commonwealth

4.2 What is a ‘human right’?

4.3 What is an ‘act’?

5 Mr Cherkupalli’s detention under s 192 of the Migration Act

5.1 Is there an ‘act’?

5.2 Detention under s 192 of the Migration Act inconsistent with article 9(1) of the ICCPR

5.3 No finding on arbitrariness in the wider sense

6 The decision to cancel Mr Cherkupalli’s bridging visa

6.1 Is there an ‘act’?

6.2 Cancellation of bridging visa inconsistent with article 9(1) of the ICCPR

6.3 No finding on arbitrariness in the wider sense

7 The decision to detain under s 189 of the Migration Act

7.1 Is there an ‘act’?

7.2 Decision to detain under s 189 of the Migration Act inconsistent with article 9(1) of the ICCPR

8 No review of the legality of Mr Cherkupalli’s detention

8.1 Is there an ‘act’?

8.2 Failure to review the legality of detention inconsistent with article 9(1) of the ICCPR

9 Failure to review appropriateness of detention in an immigration detention centre

9.1 Is there an ‘act’?

9.2 Failure to detain in less restrictive form of detention inconsistent with article 9(1) of the ICCPR

10 Refusal to grant a bridging visa

10.1 Is there an ‘act’?

10.2 Refusal to grant a bridging visa inconsistent with article 9(1) of the ICCPR

11 The failure to afford Mr Cherkupalli an opportunity to comment and the refusal to grant student visa

11.1 Is there an ‘act’?

11.2 No finding on failure to provide an opportunity to comment and refusal to grant student visa

12 Inexplicable administrative delay

12.1 Is there an ‘act’?

12.2 No finding on inexplicable administrative delay

13 Failure to provide judicial review