Human Rights and Equal Opportunity Commission Website

Report of an inquiry into a complaint by six asylum seekers concerning their transfer from immigration detention centres to State prisons and their detention in those prisons

HREOC Report No. 21

1. Introduction

2. The Inquiry Process

3. The Factual Background to the Complaint

4. Findings and Reasons for Findings

5. General Comments

6. Recommendations

7. Actions Taken by the Respondent as a Result of the Findings and Recommendations

APPENDIX A
Functions of the Human Rights and Equal Opportunity Commission in Relation to Human Rights

APPENDIX B
I. Letter from Roebourne Regional Prison dated 29 June 2001
II. Letter from Hakea Prison dated 5 July 2001 64

1. Introduction

This is a Report of the findings and reasons for findings made by the Human Rights and Equal Opportunity Commission (the Commission) following an inquiry conducted by the Commission.[1] The inquiry related to a complaint by Amnesty International Australia (Amnesty) against the Commonwealth of Australia (the Commonwealth), Department of Immigration, Multicultural and Indigenous Affairs (the Department). The complaint was made pursuant to section 20(1)(b) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act), which provides for a complaint to be made in writing to the Commission alleging that an act or practice is inconsistent with or contrary to any human right.

Amnesty made its complaint on behalf of Mr AB, Mr Jay-Ho Soh, [2] Mr Harvinder Singh Gill, Mr Mohamed Qasim, Mr CD and Mr Nourredine Chenina (the detainees).[3] Each of the detainees was held in immigration detention pursuant to section 189 of the Migration Act 1958 (Cth) (the Migration Act), initially in an Immigration Detention Centre (IDC). The complaint concerns the transfer of the detainees from the IDCs in which they were held to State correctional facilities (State prisons), and the continued detention of the detainees in those prisons. Amnesty alleges, on behalf of the detainees, that this transfer, and the continued detention of the detainees in the State prisons, was a breach of their human rights.

2. The Inquiry Process

I have investigated this complaint pursuant to section 11(1)(f) of the HREOC Act and conciliation was attempted. However, agreement was not able to be reached and I have formed the view that these matters were not amenable to conciliation.

I have provided to the parties my Preliminary Report dated 2 May 2001, my Further Preliminary Report dated 8 June 2001 and my Additional Preliminary Report dated 18 February 2002. These reports outlined my preliminary findings of fact and law in relation to the complaint.

The parties were given an opportunity to respond to these Preliminary Reports. Amnesty made three sets of written submissions to the Commission dated 13 July 2001, 5 August 2001 and 1 November 2001. The Department also made three sets of written submissions dated 17 August 2001, 16 November 2001 and 11 March 2002.

3. The Factual Background to the Complaint

3.1 Detention history

Amnesty's complaint concerns the transfer of the detainees from IDCs to State prisons. The detention history, including the date of transfer from the IDC to the State prison and the date of the return to the IDC (if applicable), for each of the detainees is not in dispute and is summarised in the following table.

Name	Date Entered Immigration Detention	Date of Transfer to Prison	Location	Date of Return to IDC	Current Status [4]
Mr AB	4 Jul 1997	9 Oct 1997	Silverwater Metropolitan Reception and Remand Centre (MRRC)	14 Feb 1998	Deported on 13 Apr 2000
		27 Feb 1998	Silverwater MRRC	26 Aug 1998
		26 Aug 1998	Silverwater MRRC and Metropolitan Medical Transient Centre (MMTC) [5]	N/A
Jay-Ho SOH	9 Jun 1998	16 Jun 1999	Silverwater MRRC	1 Mar 2000	Remains in immigration detention at an IDC
Mr CD	10 Dec 1997	11 Oct 1999	Silverwater MRRC	Attempted deportation 17 Oct 1999	Remains in immigration detention at an IDC [6]
		17 Oct 1999	Silverwater MRRC	Attempted deportation on 24 Oct 1999
		24 Oct 1999	Silverwater MRRC	2 Dec 1999
Nourredine CHENINA	4 Sep 1998	4 Oct 1999	Silverwater MRRC	11 Nov 1999	Has escaped from an IDC and remains at large
		17 Feb 2000	Silverwater MRRC	1 May 2000
Harvinder Singh GILL	24 Nov 1998	17 Apr 1999	See discussion below in Part 3.2	17 Sep 1999	Removed from Australia on 19 Apr 2000
Mohamed QASIM	9 September 1998	17 April 1999	See discussion below in Part 3.2	17 September 1999	Remains in immigration detention in an IDC

3.2 Place of detention of Mr Gill and Mr Qasim

Mr Gill and Mr Qasim escaped from Port Hedland Immigration Reception and Processing Centre (PHIRPC) on 17 April 1999. They were captured the same day and taken into custody at the Roebourne Regional Prison (RRP) in Western Australia (WA). On 23 April 1999, Mr Gill and Mr Qasim were convicted of escaping from the PHIRPC and sentenced to imprisonment for three months and one day. The sentence commenced on 17 April 1999 and concluded on 16 July 1999.

Where these detainees served their sentences and where they were held after their sentences were completed is a matter of some uncertainty and dispute within the Department. In a letter of 19 February 2001, the Department advised that:

[w]hilst serving their sentences they had been transferred by the WA Ministry of Justice from Greenough Regional Prison onward to Canning Vale Prison . The custodial terms were concluded in Canning Vale and the detainees continued to be held there in the immediate term in immigration detention. They were then transferred to Casuarina Prison . [7]

In a letter dated 24 October 2000, the Department advised that:

[o]n 17 April 1999 Mr Gill and Mr Qasim commenced a custodial sentence at the Roebourne Prison WA . They completed their sentences on 17 July 1999 . it was determined that the most appropriate place for them was the Perth IDC. As soon as space became available for them at the Perth IDC they were transferred there. In the interim, Mr Qasim and Mr Gill were transferred from Roebourne Prison via Greenough (where they remained for one day in transit) . [and then to] Casuarina Prison. [8]

In its written submissions dated 17 August 2001, the Department advised that:

[t]hey served their sentences in Roebourne Prison and Canning Vale Remand Centre. They continued to be detained in Canning Vale Remand Centre and Casuarina Prison in Western Australia on completion of their prison sentences before being transferred to the PIDC [Perth IDC].

As a result of this confusion, and in accordance with my powers pursuant to section 21 of the HREOC Act, I sought advice from the RRP and Hakea Prison in Canning Vale as to the movements of Mr Gill and Mr Qasim during the relevant period. I received a letter from the Records Officer at RRP dated 29 June 2001 and a letter from Superintendent Biddy of the Hakea Prison dated 5 July 2001. These letters provide a consistent account of the movements of these two detainees and I accept the contents of these documents in preference to the conflicting statements given by the Department. These documents are reproduced at Appendix B to this Report.

In accordance with these documents, I find that Mr Gill and Mr Qasim served their sentences at the RRP until 4 May 1999, when they were transferred to Greenough Regional Prison (GRP). They remained at the GRP until their sentences expired on 16 July 1999. They were then transferred to Casuarina Prison where they remained until 9 August 1999. On this date they were transferred to Hakea Prison. On 17 September 1999, they were returned to the Perth IDC. [9]

4. Findings and Reasons for Findings

4.1 Introduction

Where a complaint is received by the Commission, it has the function, pursuant to section 11(1)(f) of the HREOC Act, of inquiring into:

any act or practice
that may be inconsistent with or contrary to any human right.

4.2 Was there an act or practice?

Section 3 of the HREOC 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. These words have their ordinary meaning: that is, the noun "act" denotes a thing done and the noun "practice" denotes a course of repeated conduct. [10]

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 officer or agents. If the automatic operation of a law requires that the act or practice be done by or on behalf of the Commonwealth, its officers or its agents, and there is no discretion involved, these acts and practices will be outside the scope of the Commission's human rights complaints jurisdiction. [11]

The Migration Act establishes a system of mandatory detention whereby all "unlawful non-citizens" [12] must be held in immigration detention [13] until they are granted a valid visa or leave the country. [14] The Commission in its Report, Those who've come across the seas: Detention of unauthorised arrivals, [15] found that these provisions in the Migration Act contravene Australia's human rights obligations under article 9 of the International Covenant on Civil and Political Rights (ICCPR) and article 37 of the Convention on the Rights of the Child. [16] Consequently, the Commission recommended that these provisions be amended. [17] However, while this law remains in place a person's detention under the Migration Act occurs by reason of the automatic operation of the law and would not constitute an act or practice into which the Commission could inquire.

The Migration Act provides that an unlawful non-citizen may be held in immigration detention in an IDC or a State prison.[18] Despite the vastly different nature of detention in an IDC, as compared to detention within a State prison, the Migration Act provides no guidance as to when a detainee may be held in a State prison rather than an IDC. This issue is instead regulated by Governmental policy and procedure. As a matter of Government policy, immigration detainees are held in purpose built IDCs and detention of these detainees in State prisons occurs as a last resort and only in clearly defined circumstances.

'Migration Series Instruction 244: Transfer of Detainees to State Prisons' (MSI 244) [20] outlines the conditions under which a transfer from an IDC to a State prison may occur. [21] A decision to transfer a detainee from an IDC to a State prison must be made by the relevant State Director of the Department or his or her delegate. [22] Where an immigration detainee is detained in a State prison, MSI 244 establishes a procedure whereby a review is undertaken each month by a Departmental Detention Review Officer of the place of that detainee's detention. [23] If this Officer determines that the detainee's detention should be maintained in the State prison, the relevant State Director of the Department or his or her delegate must be consulted. [24]

A decision to transfer a detainee from an IDC to a State prison and a decision, made at a monthly review of the place of detention, to maintain a person's detention in the State prison are policy decisions which involve the exercise of discretion by the Department and its officers. Such decisions are therefore "acts" done by the Commonwealth, as defined in section 3 of the HREOC Act, and within the Commission's complaints jurisdiction.

4.3 Were the acts inconsistent with and/or contrary to any human right?

In its complaint, Amnesty has requested that I inquire into alleged breaches of the ICCPR and the Convention on the Elimination of all Forms of Racial Discrimination (CERD). [25] As detailed above, pursuant to section 11(1)(f) of the HREOC Act, I have the function of inquiring into any act or practice which is inconsistent with or contrary to any human right. "Human rights" are defined in section 3 of this Act as "the rights and freedoms recognised in the [ICCPR], declared by the Declarations or recognised and declared by any relevant international instrument". As the CERD does not fall within this definition of human rights, I am not empowered to conduct an inquiry into alleged breaches of this Convention.

4.4 Were the acts inconsistent with and/or contrary to the human rights recognised in the ICCPR?

The ICCPR entered into force for Australia on 13 November 1980. The ICCPR applies to all persons within the territory of a State party regardless of their nationality or status as a non-citizen. [26] Thus, the ICCPR applies to all asylum seekers, refugees and persons within Australia's jurisdiction whose applications for refugee protection have been rejected.

4.4.1 Article 9 of the ICCPR

In my Further Preliminary Report, I expressed the preliminary view that the transfer of Mr Gill, Mr Qasim and Mr CD to State prisons was arbitrary and therefore in contravention of article 9(1) of the ICCPR. In its written submissions, the Department has disputed this finding.

Article 9(1) of the ICCPR provides that:

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

4.4.1.1 No one shall be subjected to arbitrary detention

(a) Does article 9(1) of the ICCPR apply to the detainees?

The human right recognized in article 9(1) of the ICCPR extends to all deprivations of liberty, whether in criminal cases or in matters concerning immigration. [27] It is true that the detainees were not at liberty at the time of their transfers to State prisons. However, I am of the view that these transfers, and the continued detention of the detainees in State prisons, subjected the detainees to a further "detention" within the meaning of article 9(1) of the ICCPR. As discussed in my Preliminary Report, the transfer of the detainees to State prisons involved a further and serious deprivation of their liberty. Prisons are correctional facilities with an environment that is very different from that in an IDC. Detention in a State prison entails a substantial reduction in personal privacy, freedom of movement and other rights and privileges. [28] Significantly, detainees are separated from families, friends and others of their linguistic, religious, ethnic and cultural backgrounds.

In its written submissions of 17 August 2001, the Department argued that:

. Article 9(1) essentially deals with the right to liberty, that no one shall be subject to arbitrary arrest or detention. Immigration detainees are not at liberty as a function of the operation of the law, ie: the Migration Act 1958. As previously stated, this detention is not arbitrary.

You argue that moving a detainee from one place of immigration detention to another in a state correctional facility "involves a further and serious deprivation of their liberty" because it "entails a substantial reduction in personal privacy, freedom or movement and other rights and privileges."

Based on your argument, were DIMA to transfer detainees to more secure facilities within an IDF or to another IDF, thereby reducing their freedom of movement, personal privacy and other rights and privileges, this would also amount to a breach of Article 9(1). Yet this is exactly what you propose DIMA should do to better manage the behaviour of detainees within IDFs.

By your reasoning, DIMA would be left with almost no options for dealing with non-cooperative detainees which would be contrary to the duty of care owed by DIMA to the detainee population in general.

In my view, this argument is misconceived. Transfers of detainees to State prisons (or indeed to more secure facilities within an IDC) may breach article 9(1) only where that detention could be described as "arbitrary".

(b) The meaning of "arbitrary" in article 9(1) of the ICCPR

When article 9 was drafted, it was clear that the meaning of "arbitrary" contained elements of injustice, unpredictability, unreasonableness, capriciousness and unproportionality, as well as the common law principle of due process of law. [29] In A v Australia [30] the Human Rights Committee stated that detention was arbitrary if it was "not necessary in all the circumstances of the case" and if it was not a proportionate means to achieving a legitimate aim. [31]

The reference to arbitrariness in article 9(1) of the ICCPR imposes a separate and distinct limitation on detention to the requirement that the detention be lawful. The UNHRC in Van Alphen v The Netherlands [32] confirmed that there are various factors which may render an otherwise lawful detention arbitrary. It said that:

arbitrariness 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.

Furthermore, the jurisprudence of the UNHRC has established that even if the initial detention is not arbitrary, a subsequent period of detention may become arbitrary, for example, when one has regard to the length of the detention. [33]

(c) MSI 244

As discussed in Part 4.2 of this Report, the Migration Act is silent on the circumstances which would justify the transfer of an immigration detainee from an IDC to a State prison. This area is instead regulated by Departmental policy as set out in MSI 244. MSI 244 provides guidelines for the selective transfer of detainees from an IDC to a State prison and for their return from a prison to an IDC. [34] In its written submissions of 17 August 2001, the Department described MSI 244 as follows:

MSI 244 outlines the circumstances and procedures for the transfer of immigration detainees to state correctional facilities, and was developed in conjunction with the Commonwealth Ombudsman's Office. In response to the most recent Ombudsman's report into Immigration Detainees Held in State Correctional Facilities, DIMA is further clarifying the provisions of MSI 244 to ensure more thorough documentation of the management of detainee behaviour and to improve the process of transferring a detainee to a state correctional facility.

MSI 244 emphasises the importance DIMA accords to the making of transfer decisions. The decision to transfer a detainee to a state correctional authority is made by a senior departmental officer (usually the State Director) only after careful consideration of a range of factors which indicate that the individual cannot be appropriately managed in the IDF environment. There are instances in which the delegate has decided against transfer to prison.

The reasons for such transfers vary and are not restricted to criminal behaviour but may relate to other concerns such as the risk to other detainees and risk of escape.

Detainees have a legitimate expectation that MSI 244 will be followed. As it provides the only procedural safeguard for detainees who are at risk of being transferred to State prisons, strict compliance with this Instruction is crucial to the protection of their rights. In those circumstances, failure to follow the procedures set out in MSI 244 may, depending upon the facts of a particular case, introduce elements of unpredictability, inappropriateness and injustice so as to make the detention unreasonable in all the circumstances and therefore arbitrary.

(d) The Department's general comments on article 9(1)

In its written submission of 17 August 2001, the Department made a number of general comments about the nature of detention centres and behaviour management strategies relevant to a consideration of article 9(1) of the ICCPR.

The Department stated:

The Nature of Detention Centres

You claim in your preliminary findings that:

the prison environment is not an appropriate place of detention for administrative, immigration detainees
with the exception of those detainees serving sentences for escaping from immigration detention, none of the abovementioned detainees who were transferred to state prisons were charged with and convicted of any criminal offence which would warrant them serving time in a prison

By their very nature, immigration detention facilities are low to medium security environments. They accommodate men, women, children, the elderly, single persons and family units. Given this mix of populations and the administrative nature of the detention it is of paramount importance that the routines in these centres remain as close as possible to that of normal community living.

Unlike officers in correctional facilities, detention officers have only limited powers to compel detainees to comply with routines or to behave in ways appropriate to the maintenance of a safe, secure and operational facility.

Not all immigration detainees are cooperative and prepared to behave appropriately.

In this context, it is important to emphasise that DIMA's duty of care includes but extends beyond the individual of behavioural concern to ensuring the safety and welfare of all detainees in a facility.

To accommodate detainees who exhibit aggressive, violent or abusive behaviour in immigration detention centres raises a significant risk of harm to other detainees, visitors to the facilities, staff of the department and of our service provider. It could also increase the risk of some detainees absconding or escaping into the community, which raises a public safety concern.

As has previously been outlined in the Government's response to recommendation 6.12 in the Commission's 1998 report, Those who've come across the seas: Detention of unauthorised arrivals, the reasons for transfer of detainees are not restricted to criminal behaviour, but may relate to other concerns such as the risk to other detainees, risk of escape and health concerns.

Section 5(1) of the Migration Act 1958 explicitly provides for detainees to be held in a prison or remand centre of the Commonwealth, a State or a Territory. This indicates that the Parliament recognised the necessity for some detainees to be held in such a place for the purposes of immigration detention.

Nonetheless, DIMA accepts that it is not ideal for immigration detainees to be accommodated in correctional facilities and DIMA is making progress towards ensuring the better management of difficult detainees within an immigration detention environment.

In designing new centres and in redeveloping and refurbishing existing facilities, DIMA is ensuring that appropriate infrastructure is in place to better manage difficult detainees within our own facilities. Legislative amendments have recently been passed which enhance powers to search visitors to detention facilities and increase penalties for escape and incitement. Further legislative amendments have been proposed which, if passed, will enhance powers to search detainees. Further measures to better manage difficult detainees are also being considered.

DIMA does not, however, agree with suggestions that the environment provided by a correctional institution is inappropriate for the management of unacceptable behaviour by a detainee, where the transfer occurs as a measure of last resort. Indeed, neither do relevant state and territory Ministers who, at the Corrective Service Ministers Conference in June, agreed to hold immigration detainees in state correctional facilities "in exceptional circumstances".

Behaviour Management

Considerable effort is dedicated to managing detainee behaviour within immigration detention facilities (IDFs) and ACM, as our contracted service provider, has a number of behaviour management strategies already in place. Depending on the nature of the incident, the strategies may include:

counselling about disruptive behaviour and the potential consequences
counselling for parties involved in a dispute
individual management plans
observation of the detainee
placement in an observation room for a cooling off period (from hours to several days - and sometimes at a detainee's own request)
transfer to a different area within the centre
psychological or psychiatric assessment and, if necessary, treatment
referral to an outside agency for assistance or investigation
transfers to other centres
involvement of residents' committees.

The strategies in place address the suggestions in your further preliminary findings that inappropriate behaviour by detainees be managed to the fullest extent possible within the detention centre.

Consequently, transfer to prisons occurs only as a last resort. Just over 1% of detainees are transferred in this way. In 1999-2000, a total of 8,205 people were held in immigration detention (for a total of 960,452 days). Of these, 91 were transferred from IDFs to state correctional facilities for some part of their period in immigration detention. Seven of these were transferred twice, bringing the total number of transfers from IDFs to 98. These statistics illustrate the fact that transfers to state correctional facilities are only authorised in exceptional circumstances.

As of 31 July 2001 there were only nine immigration detainees currently detained in state correctional facilities who had been transferred from an IDF, eight of whom had escaped from immigration detention facilities.

You claim in both your preliminary and further preliminary findings that the transfer of detainees to state correctional facilities is used as a form of punishment, contrary to the provisions of MSI 244. DIMA submits that it is erroneous to characterise such transfers as punishment where the detainee exhibits behaviour that is clearly inappropriate for the low to medium security environment of an immigration detention centre.

Detainees, as part of the both the induction and counselling process, are advised of the possible consequences of their actions and behaviour, including the possibility that they may be transferred to a correctional facility.

This principle is clearly outlined at paragraph 4.1.2 in MSI-244:

Detainees should be counselled regarding their unacceptable behaviour and advised that unless there is an improvement in conduct, removal to a correctional institution may result. It is important that detainees are informed of the possible outcomes of their behaviour and appreciate their share of responsibility in resolving the issue of unacceptable behaviour.

Nevertheless, detainees may behave in such a manner that their behaviour becomes unmanageable in an immigration detention centre, necessitating their transfer to a more appropriate facility.

You state in your preliminary findings:

the decisions to transfer the abovementioned immigration detainees (apart from Mr Singh Gill and Mr Qasim) to state prisons were not always taken as a last resort; did not take into consideration the underlying causes for "bad" behaviour nor were appropriate steps taken to manage their behaviour

All appropriate steps were taken to manage the detainees' behaviour while in the various IDFs. Most of the detainees were counselled on numerous occasions that their behaviour was unacceptable and were warned of the possible consequences should they continue with such behaviour.

You imply that there may have been underlying causes for the unacceptable behaviour by a number of the detainees that remained unknown to the decision-makers.

While you do not appear to raise it as a particular concern, I would point out that the Immigration Detention Standards (IDS), which were developed in consultation with the Commonwealth Ombudsman, place particular emphasis on the sensitive treatment of the detention population which may include torture and trauma sufferers, family groups, children and the elderly, and persons with a fear of authority.

Special attention is given on arrival in Australia to identifying and assisting persons who may have suffered from torture or trauma. There is also ongoing access to torture/trauma counselling in detention centres.

The refugee determination process involves a comprehensive assessment of all factors relevant to establishing a well-founded fear of persecution. Any incidents or experiences of torture or trauma are critical to founding a claim under the Convention. As all of the cases included in your current investigation applied for protection and were found not to be refugees, it is unlikely that there are incidents of torture or trauma which have not been brought to the attention of DIMA staff.

It is more likely that the refusal to grant them visas and their ongoing detention and impending removal from Australia contributed to their unmanageable behaviour. This does not, however, detract from the fact that their behaviour was assessed as being inappropriate for the low to medium security immigration detention environment.

(e) Harvinder Singh Gill and Mohamed Qasim

In my Further Preliminary Report, I was of the view that Mr Gill and Mr Qasim's detention in the WA State prisons following the completion of their custodial sentences on 16 July 1999 was arbitrary as it was not reasonable or necessary in all the circumstances. Nor was it a proportionate means of achieving the objective of managing detainees in the low security environment of an IDC.

In its written submissions in response to this finding dated 17 August 2001, the Department made the general comments set out in Part 4.4.1.1(d) of this Report. It also specifically referred to these detainees and stated that:

Mr Gill and Mr Qasim escaped from PHIRPC on 17 April 1999 and were subsequently sentenced to prison terms for the escape. After the conclusion of their prison sentences they continued to be detained in a correctional facility for a period of two months.

You state that:

there was no suggestion that their behaviour could not be managed in an IDC

Clearly Mr Gill and Mr Qasim represented an escape risk. DIMA sought to return both men to either an IDC or IRPC. However, given their previous escape from PHIRPC it was not considered appropriate to return Qasim and Gill to that facility.

A decision was made to transfer them to the PIDC, which is a more secure facility, and one of which the detainees had no local knowledge. PIDC was at capacity at the time and a decision was made to transfer the four detainees to the IDC as space became available. It was clearly reasonable to detain Mr Gill and Mr Qasim in a state correctional facility while the Department was waiting to transfer them to PIDC in the circumstances.

MSI 244 clearly articulates the procedures that must be followed when an immigration detainee completes a custodial sentence.[35] Paragraph 2.1 of MSI 244 provides that the detention of immigration detainees within prisons should occur as a last resort. In this limited context, detention within a prison, when a detainee has completed a custodial sentence, should only occur where:

removal or deportation is expected to take place within seven days of expiration of the criminal sentence; or
a review has determined that there are good reasons for the person not being detained at an IDC.

Paragraph 4.9.2 of MSI 244 provides that:

[w]here a criminal detainee is about to complete a custodial sentence a formal review and decision on the appropriateness of continued detention in a State prison should be conducted 4 weeks before the completion of the sentence. This will avoid any prolonged detention in a State prison if the decision is made to transfer the detainee to an IDC at the end of the custodial sentence.

In addition, paragraphs 7.1.1 and 7.3.1 of MSI 244 provide that once a person completes a custodial sentence, regular monthly reviews of the place of detention must be undertaken.

The Department advised, in their written submissions of 17 August 2001, that:

Detention Operations assessed the situation and sought to return the group (including both men) to either an IDC or IRPC. However, given their previous escape from PHIRPC it was not considered appropriate to return Qasim and Gill to that facility. No notes from Ministry of Justice welfare officers or counselors were received as part of a "detention review" process.

A decision was made to transfer them to the PIDC, which is a more secure facility, and one of which the detainees had no local knowledge. PIDC was at capacity at the time and a decision was made to transfer the four detainees to the IDC as space became available.

The detainees were telephoned regularly to allow them to raise any issues they may have had and to advise them that they would be transferred to the PIDC when capacity allowed for it.

Despite the fact that the question of Mr Gill and Mr Qasim's detention does appear to have been considered at some level by "Detention Operations", I do not accept that a formal initial review was conducted in accordance with paragraph 4.9.2 of MSI 244. Reports from the correctional facility, as to the detainees' behaviour in the IDC, and from the PHIRPC were not sought or obtained nor is there a record of this review process.

In addition, I do not accept that monthly reviews were conducted in accordance with paragraphs 7.1.1 and 7.3.1 of MSI 244. In a letter dated 24 October 2000, the Department advised that, as required by MSI 244, the detention of Mr Gill and Qasim in a State prison following the conclusion of their sentences "was the subject of regular review". Contrary to this suggestion, in a letter dated 19 February 2001, the Department advised that:

[a]s no transfer had taken place under MSI 244, reviews per se were not undertaken. However, the detainees were telephoned regularly to allow them to raise any issues they may have had and to advise them that they would be transferred to the PIDC when capacity allowed for it. No notes from Ministry of Justice welfare officers or counsellors were received as part of a "detention review" process.

This position appears to have been conceded in the Department's written submissions of 17 August 2001, where no mention is made of monthly reviews.

As no reviews were undertaken in accordance with MSI 244, I find that no consideration was given by the Department to holding the detainees in a form of immigration detention which was least restrictive of their rights. It is accepted that there were legitimate security reasons underpinning the Department's decision not to return the detainees to the PHIRPC. It is also accepted that the Perth IDC did not have capacity to hold the detainees until 17 September 1999. However, in circumstances where there was no suggestion that the detainees' behaviour could not be managed in an IDC, consideration should have been given to holding the detainees in an IDC in another State until there was room at the Perth IDC. As there was no consideration of this matter, it could not be said their detention within the WA State prisons occurred as a last resort.

For all of the above reasons, I have formed the view that the detention of these detainees in the WA State prisons between 16 July 1999 to 17 September 1999 was arbitrary and in breach of article 9(1) of the ICCPR. I note that the UNHRC has, on a number of occasions, found detention following the expiration of a criminal sentence to be arbitrary and a breach of article 9(1). [36] In this case, it could not be said that the detention of these detainees was reasonable and necessary in the circumstances nor that it was a proportionate means of achieving a legitimate end, namely, the holding of these detainees in immigration detention. The breaches of MSI 244 evidence a lack of consideration of the most appropriate form of detention for these detainees following the completion of their sentences and lend weight to my conclusion that their detention was arbitrary. [37]

(f) Mr CD

In my Further Preliminary Report, I was of the view that Mr CD's detention in the MRRC was arbitrary and in breach of article 9(1) of the ICCPR. In its written submissions of 17 August 2001, the Department responded generally to this finding (these comments are set out in Part 4.4.1.1(d) of this Report), and also made some specific submissions in relation to Mr CD's detention. The Department stated that:

The decision to transfer Mr CD to a state correctional facility was taken as a result of Mr CD's violent action in attempting to overturn a desk onto a DIMA officer. When counselled by the centre manager, Mr CD continued to respond with verbal outbursts and continued his threatening behaviour to the point where it was necessary to restrain him. His behaviour was such that it was inappropriate to continue his detention at VIDC at that time and he was transferred to Silverwater MRRC.

I would also draw to your attention the fact that Mr CD also acted in a violent manner during two lawful attempts to remove him from Australia, requiring his removal to be aborted in both instances. Mr CD was returned to Villawood on 2 December 1999, 52 days after his initial transfer. He was returned to Stage 1 of Villawood and was transferred to Stage 2 of Villawood on 13 June 2000.

On 11 October 1999, Mr CD was interviewed by a Departmental officer in the Video Conference Room at Stage 1 of the Villawood IDC. He was advised that the Minister of the Department had refused his request to intervene in his matter. This was the last avenue open to Mr CD to remain in Australia, as his appeal to the Full Court of the Federal Court against the Refugee Review Tribunal decision to refuse his application for a protection visa had been dismissed. In the Incident Report, Mr Cahill, the Operations Manager at the Villawood IDC detailed the events of this day. He reported that:

[a] short time into the interview, without warning Detainee CD grabbed the desk, that Immigration Officer Efrem was sitting behind, with both hands and endeavoured to up end it on top of the Officer. Detainee CD continued to yell abuse at Immigration Officer Efrem who quickly left the room. Detention Supervisor RAJ called a "CERT 1" on the radio and attempted to restrain the Detainee.

With the assistance of other officers Detainee CD was restrained and placed in a chair and the CERT 1 stood down. Operations Manager CAHILL tried to get Detainee CD to calm down and discuss his problems rationally but he continued to struggle violently and yell and scream abuse. He was continually jumping out of the chair shouting and trying to intimidate the Officers. Operations Manager eventually instructed that mechanical restraints be placed on Detainee CD for his own protection and for the safety of the Officers present.

The centre Manager arrived and also endeavoured to calm Detainee CD down but he refused to desist and continued his aggressive behaviour by jumping out of the chair and trying to threaten and intimidate those present.

Detainee CD's behavior was now attracting the other Detainees and a large group was gathering in the Fishbowl area. Detainee CD was removed from the Video conference room to the secure room near the airlock until arrangements were made for his transfer to a State Correctional Facility. [38]

A recommendation was made by Ms Kay Symons, on behalf of the NSW Business Manager at the Villawood IDC, that "[g]iven [Mr CD's] behaviour and the risk he presents to the detainees and officers, it would seem appropriate to transfer him to a State facility". [39] This recommendation was accepted by the NSW State Director and Mr CD was transferred to the MRRC that evening.

Reason for transfer

The attempted overturning of a desk onto a Departmental officer during an interview is undoubtedly an incident of concern to the Department and cannot be condoned. Although no injury was occasioned by the Departmental Officer, Mr CD's conduct clearly constitutes a technical assault. In this regard, Amnesty has submitted, in its response of 13 July 2001, that:

if Mr CD had intended to overturn a desk on to a Departmental officer during an interview, this would have constituted an assault, for which Mr CD could have been charged and dealt with by the courts in accordance with law. Attention is drawn to the following provisions of paragraphs 4.7.1 and 4.7.2 of MSI 244 . The terms of paragraphs 4.7.1 and 4.7.2 of MSI 244 would lead one to expect that the question of prosecution had been duly considered and the conclusion reached that the circumstances indicated that Mr CD lacked the necessary mens rea to be found guilty of any criminal offence.

If there was a bona fide view formed that there was a prima facie case that Mr CD intended to harm the Departmental officer, it seems inexplicable that Mr CD was not charged. But if it was considered that there did not appear to be at least a prima facie case that Mr CD intended to harm the Departmental officer, then this would be a further ground for considering that Mr CD's imprisonment was arbitrary and in breach of Article 9(1) of the ICCPR.

Paragraph 4.7 of MSI 244 provides that:

4.7.1 In all cases, involving allegations of unlawful behaviour, consideration should be given to reporting the matter to the police. Factors to be taken into consideration include the seriousness of the act, the intention and maliciousness of the act, and the effect on the daily operations of the IDC if no action is taken.

4.7.2 Consideration should also be given to the likelihood of success in laying charges in each case. ...Factors to be taken into account include the quality of the evidence and possibly, the seriousness of the offence. It is questionable, in terms of the national interest, to pursue prosecution where the penalties are likely to be minimal or if there is little chance of a successful prosecution.

Although I do not conclude, as is suggested by Amnesty, that there was no prima facie case against Mr CD for a charge of assault,[40] it must be assumed that the Department either did not think it was appropriate in the circumstances, or did not consider this incident to be sufficiently serious, to warrant a report to the police and the laying of criminal charges against Mr CD.

The significance of this incident is also reduced when it is viewed in its context. In the 22 months that Mr CD had been detained in the IDC, he had had no adverse reports and was of good behaviour. On the day of this incident, Mr CD had discovered that one of his last avenues of appeal had been unsuccessful and, one can assume, felt frustrated and disappointed. If a medical report had been obtained prior to the transfer, as required by paragraph 4.1.4 of MSI 244, this report would have revealed that a transfer was not necessary. When Dr Galea examined Mr CD on 13 October 1999 he found that:

[w]hile in the [VIDC], this detainee has never exhibited any abnormal or aggressive behaviour and my opinion is that this outburst of behaviour was an episodic one and also because of the situation he was in at the time. From that point of view I do not expect that this gentleman, once he is resigned to the fact that he is going to be removed, that he will exhibit any untoward aggressive type behaviour. [41]

Did the transfer occur as a last resort?

Paragraph 21 of MSI 244 provides that a transfer from an IDC to a State prison must occur as "a last resort". Concomitantly, paragraph 4.1.2 of MSI 244 provides that:

[d]etainees should be counseled regarding their unacceptable behaviour and advised that unless there is an improvement in conduct, removal to a correctional institution may result. It is important that detainees are informed of the possible outcomes of their behaviour and appreciate their share of responsibility in resolving the issue of unacceptable behaviour. Additional warnings, counseling sessions and/or the withdrawal of privileges may also be considered depending on the nature and severity of the behavioural problem. For instance the use of 'time-out' or 'cooling-off period' in a neutral space (for a short period), to allow a detainee to calm down may be appropriate.

As this was the first time that Mr CD had exhibited any behaviour of concern, it is disappointing that the Department did not try to manage his behaviour in a manner that was least restrictive of his rights. It appears that the only "counselling" Mr CD received in relation to this incident was by ACM staff in the interview room at the time of this incident. He did not receive any professional counselling from a psychologist or similarly trained person, even though he was receiving important life changing news on this day. No other behaviour management strategy was utilised and there is no evidence of an "individual management plan" or of any consideration being given to a transferring to a different area within the IDC or a more secure IDC. Mr CD was given no opportunity to modify and improve his behaviour.

The placing of Mr CD in seclusion immediately after this incident does not appear to have been used as a behavioural management tool. The Incident Report, quoted above, states that Mr CD was placed in seclusion "until recommendations were made for his transfer to a State Correctional Facility". This would suggest that seclusion was being used not to resolve the situation but as a holding place until he could be transferred to the MRRC. In light of all of these matters, I do not believe that the transfer could be described as occurring as a "last resort".

Conclusion

After a consideration of all of the evidence before this inquiry, I have formed the view that Mr CD's transfer to the MRRC on 11 October 1999 subjected Mr CD to arbitrary detention in breach of article 9(1) of the ICCPR. In my view, this transfer to the MRRC was not reasonable or necessary in all of the circumstances and nor was it a proportionate response to the incident which occurred on this day. This incident was triggered by a particular event and, in my opinion, was not of sufficient magnitude to warrant a transfer to a State prison. Had Mr CD been given the opportunity of a "cooling-off period" and some professional counseling, I am of the view that his behaviour could have been managed within the low security environment of the IDC. The fact that the Department failed to comply with MSI 244 further supports a conclusion that the detention in the MRRC was arbitrary.

4.4.2 Article 10(1) of the ICCPR

In its written submissions, Amnesty submitted that I should find that the Department's actions in relation to Mr AB were inconsistent with and contrary to his human rights recognised in article 10(1) of the ICCPR.

4.4.2.1 Relevant jurisprudence and commentary on article 10(1) of the ICCPR

Article 10(1) of the ICCPR provides that:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

Article 10(1) extends to all deprivations of liberty, including that which occurs when a person enters immigration detention, and requires that minimum standards of humane treatment be observed in the conditions of detention. The UNHRC has stated that:

[a]rticle 10, paragraph 1, imposes on State parties a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of their liberty, and complements the ban on torture or other cruel, inhuman or degrading treatment or punishment contained in article 7 . Thus, not only may persons deprived of their liberty not be subjected to treatment which is contrary to article 7 . but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as that of free persons .

The scope of article 10(1) was addressed in detail in the Report of the Human Rights Commissioner of May 2000 [44] concerning the conditions of detention of a Nigerian national at the Perth IDC. The Commissioner found that the placement of the complainant in an observation room as a form of punishment, the continued use of restraints, the excessive and unnecessary holding of the complainant in the observation room and the holding of the complainant in a room without natural light or ventilation amounted to contravention of article 10(1).

It is clear from UNHRC jurisprudence that the threshold for establishing a breach of article 10(1) is lower than the threshold for establishing 'cruel, inhuman or degrading treatment' within the meaning of article 7 of the ICCPR. [45]

Professor Manfred Nowak summarises this jurisprudence as follows:

[w]hereas article 7 primarily is directed at specific, usually violent attacks on personal integrity, article 10 relates more to the general state of a detention facility or some other closed institution and to the specific conditions of detention. As a result, article 7 principally accords a claim that State organs refrain from certain action (prohibition of mistreatment), while article 10 also covers positive State duties to ensure certain conduct: Regardless of economic difficulties, the State must establish a minimum standard for humane conditions of detention (requirement of humane treatment). In other words, it must provide detainees and prisoners with a minimum of services to satisfy their basic needs (food, clothing, medical care, sanitary facilities, communication, light, opportunity to move about, privacy, etc). Finally, it is . stressed that the requirement of humane treatment pursuant to article 10 goes beyond the mere prohibition of inhuman treatment under article 7 with regard to the extent of the necessary 'respect for the inherent dignity of the human person'. [46]

4.4.2.2 Rape of Mr AB at the MRRC

In its written submissions of 13 July 2001 and 5 August 2001, Amnesty alleged that the Department's treatment of Mr AB within the MRRC constituted a breach of article 10(1) of the ICCPR. In its written submissions of 13 July 2001, Amnesty invited my attention to:

. [Mr AB's] claim that he was raped by five (5) other inmates of the goal on 20 Apri1 1998 .

[Mr AB] was born on 3rd April 1974. He was therefore aged 23 when first transferred to prison on 9 October 1997. At that age he was obviously at risk of sexual assault in prison but this risk appears never to have been considered.

In telephone conversations with Amnesty International, [Mr AB] informed us that while he was in prison he was not willing to make any official complaint regarding the sexual assault upon him as he feared that if he did so he would be killed by other prisoners as an informer. [Mr AB's] fear appears to have not been unreasonable. Amnesty International understands that [Mr AB] may have seen an Asian prisoner who had become his friend stabbed to death. Amnesty International understands that this death may have been reported in the press .

. There appears to be an abdication of responsibility here. DIMA [the Department] knew about the allegation that [Mr AB] had been sexually assaulted by five prisoners yet DIMA simply left him in that situation.

. There may well also have been cultural factors in [Mr AB's] unwillingness to submit to examination. Amnesty lnternational understands that [Mr AB's] shame and humiliation was such that a considerable time elapsed before he confided to Sister Beth Egan O.P. that he had been raped.

In its response of 17 August 2001, the Department stated that:

DIMA is concerned about [Mr AB's] allegations that he was sexually assaulted.

I should point out that [Mr AB] first raised the allegations with DIMA staff on 15 July 1998, some 86 days after the incident was alleged to have occurred. DIMA responded to the allegations, when advised of the alleged incident by [Mr AB], by requesting that management of the correctional facility investigate the allegations.

[Mr AB] was taken to Westmead Hospital to be examined by a doctor where he refused to be examined .

. It also appears that [Mr AB] informed Amnesty of the alleged incident in a letter dated 8 June 1998, some 37 days prior to the allegations being raised with the Department or Silverwater MRRC management, yet Amnesty do not appear to have brought this to the attention of either DIMA or Silverwater MRRC management .
While DIMA does not dispute that there may have been reasons why
[Mr AB] may not have made a formal report of the alleged assault, I would submit that it is hardly appropriate to hold DIMA responsible for an alleged act that went unreported to the Department by the detainee for 86 days, nor was the matter brought to DIMA's attention by the management of the correctional facility.

In its written submissions of 11 March 2002, the Department argued that there was no evidence to support Mr AB's assertion that he had been raped and, therefore, no basis for finding a breach of article 10(1) of the ICCPR. It stated:

[i]n the matter of [Mr AB], there is no supporting evidence to his allegation of sexual assault. As previously advised in response to earlier preliminary findings, [Mr AB] only raised the allegation with the Department of Immigration and Multicultural and Indigenous Affairs (the Department) staff 86 days after the incident was alleged to have occurred. The Department immediately responded to the allegations by requesting that management of the correctional facility conduct an investigation. The Assistant Operations Manager of Silverwater Metropolitan Remand Correctional Centre (MRCC) advised the Centre had received no previous notification of the event. [Mr AB] was interviewed by senior staff following receipt of the notification, but refused to name his alleged assailants or take police action over the matter.

He was treated by the Correctional Health Staff at the MRCC and was escorted to the Sexual Assault Clinic at Westmead Hospital for follow up treatment where he refused to be examined. The medical practitioner at Westmead observed to the Departmental officer that he "was a little sceptical about the circumstances of the a/n's claims given that such a length of time had elapsed before the goal authorities were advised."

As previously advised there are established legal and administrative avenues available to enable claims of sexual assault to be investigated. At no time did Mr AB avail himself of these avenues, nor did he assist the inquiry into the alleged sexual assault. While we agree that adverse conclusions should not, necessarily, be drawn from a person's failure to inform or to allow himself to be medically examined, neither can conclusions that events took place be drawn. There is simply insufficient evidence to test the veracity of [Mr AB's] allegations of sexual assault. On this basis, the Department suggests the statement under "Factual Findings" that it does not dispute that [Mr AB] was raped, is inaccurate.

A Departmental minute dated 8 June 1998 states that "[Mr AB] did not raise any matters of concern regarding his current place of detention." File notes made in the months following the alleged sexual assault reveal a preference by [Mr AB] to remain in the MRRC rather than be transferred back to the Immigration Detention Centre.

The Human Rights Committee (the Committee) has previously examined various claims of alleged Article 10 violations. In most cases where the Committee has found a violation of Article 10, there has been unrefuted evidence of conditions which do not meet the basic requirements of prisoners (ie food, clothing, medical care, sanitary facilities, communication, light, opportunity to move about, privacy etc.).

In Lloyd Grant v Jamaica, a prisoner claimed that, amongst other allegations, he was beaten by police on two occasions, threatened, whipped with electric cable, and administered electric shocks. In the absence of supporting medical evidence, the Committee was unable to find violations of Article 10 of the Covenant. In this instance, there is no supporting medical or other evidence in relation to the alleged sexual assault.

(a) Factual findings

Amnesty alleges that Mr AB was raped by five inmates at the MRRC on 20 April 1998. Mr AB describes this violent assault in a letter to Amnesty dated 24 May 1998:

Five people came to my cell with a knife and they tied my hands togethers (sic). They told me not to say anything otherwise I would get killed. I am not a homosexual, but they forced me.

Mr AB informed the Department of this assault on 15 July 1998. The Department advises that it responded to this disclosure by requesting the management of the MRRC to investigate the allegations. In a report provided to the Department, the MRRC stated that:

[t]his Centre was not previously notified by either [Mr AB] or any other party of the alleged incident. On receipt of your letter, [Mr AB] was interviewed by senior staff in the MRRC and he has told us that he was raped on [20 April 1998]. He also informed us that he did not notify any person of the incident within the Centre out of fear for his safety. Consequently no investigation was carried out by the MRRC staff in respect of the incident.

[Mr AB] refuses to name his assailants or take police action over the matter. He has been treated by the Correctional Health Staff at the MRRC and was escorted to the Sexual Assault Clinic at Westmead Hospital for follow up treatment. [47]

At Westmead Hospital, Mr AB was taken to see Dr Vasillidis. However, Mr AB refused to be examined by this doctor, who reported that Mr AB had not wanted to attend the hospital in the first place and that it would be extremely unlikely that any examination would have been of any consequence, given the length of time which had elapsed.[48] Dr Vasillidis also reported that he was "a little sceptical" about Mr AB's claims given the length of time which had elapsed before the goal authorities were advised. [49]

In its written submissions of 11 March 2002, the Department asserted that there is "no evidence to support the allegation" that Mr AB had been raped at the MRRC. In apparent support of this submission, the Department referred to Mr AB's delay in reporting this assault, his refusal to name or pursue a prosecution of his assailants and his refusal to be examined.

After considering all of the evidence before this inquiry, I am satisfied that Mr AB was raped at the MRRC. Amnesty has provided evidence to this inquiry, and I accept, that Mr AB twice complained to Amnesty of his rape in the MRRC soon after it occurred, on 24 May 1998 and 8 June 1998. Mr AB also complained of this assault when he was questioned by officers at the MRRC at some stage subsequent to 15 July 1998. The accounts provided by Mr AB to Amnesty and the MRRC are consistent.

I do not draw any adverse inference from Mr AB's refusal to submit to a medical examination. I accept that there may have been cultural factors, as suggested by Amnesty, or other good reasons involved in Mr AB's unwillingness to submit to such an examination. Nor do I draw any adverse inference from Mr AB's delay in making a complaint to the prison authorities. In its written submissions of 13 July 2001, Amnesty asserted that Mr AB was not willing to make any official complaint regarding his sexual assault as he feared he would be killed by other prisoners. This explanation for Mr AB's delay in making a complaint is not disputed by the Department and was the one Mr AB offered to the officers from the MRRC when he was interviewed regarding this incident. It is not clear if Dr Vasillidis questioned Mr AB about his delay in making a complaint. I note that this would also explain Mr AB's refusal to name his assailants or assist in any police investigation into his assault.

In its submissions of 11 March 2002, the Department referred to UNHRC jurisprudence to support its argument that in the absence of medical or other evidence to corroborate Mr AB's account of his abuse, there was no "unrefuted evidence" of the facts constituting the breach of the ICCPR.

In Mukong v Cameroon, [50] the UNHRC commented on the evidential requirements of a complaint under the Optional Protocol of the ICCPR:

[t]he Committee does not accept the State party's views [that the burden of proof lies with the author of the complaint]. Mr Mukong has provided detailed information about the treatment he was subjected to; in the circumstances, it was incumbent upon the State party to refute the allegations in detail, rather than shifting the burden of proof to the author. [51]

An analysis of the jurisprudence of the UNHRC reveals that in many instances where this body has found the evidential requirements for a complaint not to have been satisfied, evidence had only been provided of general circumstances, for example, of general conditions in a prison, rather than of specific individual suffering. [52]

In Grant v Jamaica, the case referred to by the Department in their submissions, the UNHRC provided only scant reasons for its failure to find violations of articles 7 and 10 of the ICCPR. It would appear that as there was detailed evidence (in the form of a transcript of evidence of the police officers allegedly responsible for assaulting the author while he was in custody) refuting the author's allegations, the Committee took the view that it was unable to uphold the complaint in the absence of supporting medical evidence.

In Mr AB's case, I have formed the view that there is sufficient evidence to support a finding that he was raped in the MRRC in the manner described by him. Evidence has been provided to this inquiry by Amnesty of Mr AB's specific individualised allegations. The Department has not provided any evidence refuting this allegation (and, as discussed above, I am not prepared to draw the inferences suggested by the Department). Corroboration of Mr AB's account is found in the consistency of his complaints to Amnesty and to officers of the MRRC when specifically questioned about this incident and the fact that his complaint to Amnesty was made at an early stage. It is true that there is no medical evidence to support Mr AB's account of his violent rape. However, a lack of evidence of this nature is not uncommon in sexual assault matters and Dr Vasillidis noted that even if Mr AB had subjected himself to a medical examination it would have been unlikely to have yielded results. It is difficult to imagine what other evidence to support Mr AB's allegation might be available. I assume that, like the majority of sexual assaults, this one occurred in private, with the only witnesses being the victim and the perpetrator/s. Even if it did not, a rape in a prison environment is unlikely to elicit witnesses.

(b) Was article 10(1) contravened?

Article 10(1) imposes a positive obligation on a State party to provide humane treatment to persons in detention, particularly in the conditions of their detention. The detention of Mr AB in a State prison does not constitute an act or practice into which the Commission may inquire (see Part 4.2 of this Report). The issue for determination by me is whether the Department failed to treat Mr AB with humanity and with respect for his dignity in its decision to maintain his detention in the MRRC after he reported his rape to the Department on 15 July 1998, and in its decision to transfer Mr AB to the MRRC on 26 August 1998.

As discussed above, rape is a gross violation of a person's human rights and it is well accepted that such an assault can have long term emotional and psychological ramifications for the victim. In Mr AB's case, it is plain that his mental health deteriorated after his rape. While this deterioration cannot be attributed solely to the rape, it was clearly a contributing factor. The Departmental officer, to whom Mr AB disclosed that he had been raped, commented that:

I am personally concerned about [Mr AB] given his alleged rape, his fear and loathing of other prison inmates, his opinion of the IDC security personnel, his determination never to return to Stage 1 and his general brooding. [53]

Dr Vasillidis of Westmead Hospital was so concerned about Mr AB's mental health following his consultation that he telephoned Mr AB's Immigration Officer, Mr Peter Suart. Mr Suart reports that Dr Vasillidis expressed his concern about Mr AB being in detention for such a long time and wanted to know if Mr AB had been forgotten by the Department. [54]

In February 1999, Mr AB wrote a letter to the Department. It is in the following terms:

Department of Immigration

To whom it my concern

Dear Sir/Madam

My name is [Mr AB]. I was born in Luanda, Angola on the 3rd April 1974. For a long time I have asked you to remove me from Australia and this maximum security prison. I am not a criminal. I am not a person you should keep a long time in jail.

Here in prison there is too much racism between inmates. I have been called "nigger" and different names a number of times by some white prisoners. This is because I am the only African person in my pod.

They don't want to call me [A - his first name] or [B - his second name]. It is "'nigger" all the time and it hurts me a lot. Being born dark is not my fault. I'm just a human being.

I can not use any physical force. I don't fear these people but I show them respect, because if I fight with them I will commit a serious crime and I will stay all my life in prison.

I did not come to Australia to be in prison or to commit crime. I can not complain to the officers because if I complain the problems get even bigger for me with other prisoners. When anything bad happens in this place, if the officer asks who did it I answer that I do not know because I need to protect myself from other inmates.

I know it is very difficult for you to understand how we live in here, but this is the prison system in reality.

And remember, I'm not a criminal or even an accused person, only a refugee trying to begin a new life.

In Australia many Africans who come here seeking refuge have been deported to different parts of Africa where they don't belong. This is very wrong because these people are not welcome over there. There are many very different countries in Africa, with different cultures and languages.

You are doing this to us because our country, our government don't want us back because of persecution and civil war. I understand I will be in great danger in Angola. However despite this, my wish is that I would like to go back to my country of origin Angola, where at least I have family and friends.

But Australian Immigration think we Africans are all the same in tradition language the politics, etc.

I am asking you again to remove me from Australia. I don't care where you want to send me: Chad, Somalia, Togo, Congo, Uganda, any place in Africa.

I just want to get away from people who want to put my future in danger here in an Australian jail.

Please. I want you to take this matter seriously,

Yours Faithfully

[Mr AB]

In July 1999, Mr AB advised the Department that he was going through a "brain explosion" [55] and had a "sickness in the brain".[56] In September 1999, the Department was concerned enough about Mr AB's "history of mood swings . claims of mental illness, and his reluctance to undergo formal counselling at the MRRC" to have him formally assessed by a clinical psychologist. [57] The report of this psychologist has not been provided to this inquiry.

In March 2000, the MRRC reported that Mr AB is "often angry". [58] On 24 March 2000, Mr AB wrote his final letter to the Department. He stated that:

I am sorry but I can not stand this kind of torture any more.

I want to go back to Africa that is where I belong. I don't care which country in Africa they want to send me to, I just want to get out of Australia.

On 13 April 2000 Mr AB was deported to Angola.

I have examined all of the monthly reviews of Mr AB's place of detention subsequent to 15 July 1998 and Departmental documents relating to the decision to return Mr AB to the MRRC on 26 August 1998. I was surprised to discover that on no occasion did the Department consider, or even mention, the rape of Mr AB in either of these decision making processes. As Amnesty correctly highlights, the Department should have had regard, in these decision making processes, to the risk of a further sexual assault of Mr AB while held at the MRRC. It should also have considered the effects of this violent assault on Mr AB's mental health, including the effects of his continued detention in the environment where this rape was perpetrated. It is of great concern to me that Mr AB did not receive any professional assessment of his mental health until September of 1999.

In my view, the matters raised above should have been considered even if the Department had had doubts about the veracity of Mr AB's allegations of sexual assault and even if Mr AB had expressed a preference for remaining at the MRRC. These matters, along with all other relevant considerations including those listed in the Department's written submissions of 11 March 2002, should have been weighed and balanced in the decision making process. That the rape of Mr AB did not factor in the decision making process at all, either on review or in the transfer decision of 26 August 1998, constitutes a failure to treat Mr AB humanely and with respect for his dignity and a breach of article 10(1) of the ICCPR.

4.4.3 Article 10(2)(a) of the ICCPR

Article 10(2)(a) of the ICCPR provides that:

Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons .

Article 10(2)(a) imposes two requirements on a State Party. The first is that, save in exceptional circumstances, an accused person shall be segregated from convicted persons. The second is that the accused person shall be subject to separate treatment appropriate to their status as unconvicted persons.

4.4.3.1 Application of article 10(2)(a) to people in administrative detention

In its written submissions of 11 March 2002, the Department raised, as a preliminary point, the applicability of article 10(2)(a) to administrative detainees. It submitted that:

there is no direct authority on whether Article 10(2)(a) applies to administrative detainees held in a state correctional facility. The distinction between convicted and unconvicted persons in Article 10 arises from the right of such persons to the enjoyment of the presumption of innocence in criminal proceedings (Article 14(2)). Consequently, the language of Article 10(2)(a) is directed to 'accused' persons.

Article 10(1) of the ICCPR refers to "all persons deprived of their liberty" and does not restrict the application of article 10 to people deprived of their liberty as a result of criminal charges. [59] By comparison, article 10(2)(a) specifically refers to "accused persons". As is correctly noted by the Department, there is no UNHRC jurisprudence on the meaning of "accused persons" in this article. However, in my view it is plain that the intention of article 10(2)(a) was to draw a distinction between those persons who have been found guilty and convicted of a criminal offence and those who have not. [60] Interpreting this article consistently with this intention, I find that administrative detainees are entitled, as persons who have not been convicted of any crime, to the protection afforded by article 10(2)(a) of the ICCPR.

I also note that in its second periodic report to the UN Human Rights Committee in February 1987, [61] within the discussion of article 10 and under the heading "segregation", the Australian Government made submissions concerning the detention of illegal immigrants in police lock-ups, remand centres and prison facilities when immigration detention centres are not available.[62] It therefore seems that even at this early stage, the Australian government acknowledged that its obligations under article 10(2)(a) relate not only to accused people within the criminal justice system, but also to administrative detainees.

4.4.3.2 Separate treatment

(a) The reservation to article 10(2)(a) of the ICCPR

As set out in Part 4.4.3 of this Report, article 10(2)(a) of the ICCPR obliges Australia to provide a person in detention with separate treatment appropriate to his or her status as an unconvicted person. At the time of ratification of the ICCPR in 1980, Australia entered a number of reservations and declarations. One such reservation was made in relation to article 10(2)(a). That reservation remains in force and states as follows: [63]

In relation to paragraph 2(a) the principle of segregation is accepted as an objective to be achieved progressively.

However, the right to separate treatment guaranteed by article 10(2)(a) of the ICCPR is not affected by this reservation as the reservation is limited in its terms to the principle of segregation. The effect of the reservation to article 10(2)(a) is provided for in article 22 of the Vienna Convention, which provides that a reservation:

.modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation (emphasis added).

As is the case in domestic law, reservations to the ICCPR (being derogations from fundamental human rights) are construed narrowly.

(b) Were the detainees subject to separate treatment?

In its written response of 15 August 2001, the Department advised that the detainees were not subject to any form of separate treatment while held in State prisons. In my Additional Preliminary Report, I was therefore of the preliminary view that the Department's failure to accord these detainees separate treatment appropriate to their status as unconvicted persons breached their human rights under article 10(2)(a) of the ICCPR.

In its written submissions of 11 March 2002, the Department advised that the detainees were all subject to separate treatment and were not treated in exactly the same manner as convicted prisoners. It advised that:

With regard to the treatment of detainees identified in the preliminary report, [Mr AB], Mr Soh, Mr CD and Mr Chenina were held in NSW correctional facilities. Immigration detainees are held as deportees in this jurisdiction, as a sub-group of civil inmates. A civil inmate is defined as "an inmate who is being held in custody otherwise than because of a criminal offence".

Civil inmates have some additional privileges to those of a convicted inmate. Civil inmates cannot be forced to work except to keep any area they inhabit clean and tidy. Any work they perform is at their own request. Civil inmates are permitted to receive daily visits (as opposed to weekly visits for convicted inmates).

Mr Gill and Mr Qasim were held in West Australian correctional facilities. In Canning Vale Remand Centre in Western Australia, immigration detainees are held under the same conditions as a prisoner on remand. These conditions differ from those that apply to sentenced prisoners in the areas of work and visits. Remand prisoners may apply to be treated as a sentenced prisoner and undertake work for remuneration. If they choose not to work they are required to keep their cells and living areas clean. Remand prisoners are also entitled to receive one visit each day.

The Department also denied that it had breached article 10(2)(a) of the ICCPR as follows:

The Department submits that it has not breached Article 10(2)(a) of the ICCPR as there are no grounds for the breach.

The President made a further preliminary finding the detainees were treated in exactly the same manner as convicted prisoners in contravention of Rule 95 of the UN Standard Minimum Rules for the Treatment of Prisoners and did not enjoy the entitlements of Part II, Section C of these Rules.

The Department submits that although the Standard Minimum Rules may be taken into account in determining the standards for humane conditions of detention, the Standard Minimum Rules do not form a code, nor are States Parties required to adhere to the Standard Minimum Rules in order to comply with the ICCPR.

Australia is not bound under international law to comply with the Standard Minimum Rules. As such, the Department submits that it is not reasonable to find a breach of Article 10(2)(a) on the basis of perceived non-compliance with a non-binding instrument. Nevertheless, as indicated above, the treatment of detainees in state correctional facilities in most instances complies with Part II Section C of the Standard Minimum Rules.

Negotiations are continuing with a number of state correctional authorities on Memoranda of Understanding with respect to the detention of immigration detainees in state correctional facilities. The conditions under which detainees are held in state facilities necessarily form part of the negotiations.

The Standard Minimum Rules for the Treatment of Prisoners [65] (Standard Minimum Rules) are United Nations standards applicable to the treatment of all persons (whether administrative detainees, accused persons or sentenced prisoners) held in correctional facilities. The Standard Minimum Rules provide for different treatment of convicted prisoners and those who have not been convicted of any criminal offence. Although the Standard Minimum Rules are not binding on Australia, [66] they provide valuable guidance in interpreting and applying article 10 of the ICCPR. In Mukong v Cameroon, [68] the UNHRC stated that:

[c]ertain minimum standards regarding the conditions of detention must be observed regardless of a State party's level of development. These include, in accordance with Rules 10, 12, 17, 19 and 20 of the U.N. Standard Minimum Rules for the Treatment of Prisoners, minimum floor space and cubic content of air for each prisoner, adequate sanitary facilities, clothing which shall be in no manner degrading or humiliating, provision of a separate bed, and provision of food of nutritional value adequate for health and strength. It should be noted that these are minimum requirements which the Committee considers should always be observed, even if economic or budgetary considerations may make compliance with these obligations difficult.

Rule 95 of the Standard Minimum Rules provides that persons arrested or imprisoned without charge shall be given the same protection as that given to arrested or remanded prisoners under Part II, section C. Part II, section C of the Standard Minimum Rules provides:

C. PRISONERS UNDER ARREST OR AWAITING TRIAL

84. (1) Persons arrested or imprisoned by reason of a criminal charge against them, who are detained either in police custody or in prison custody (jail) but have not yet been tried and sentenced, will be referred to as "untried prisoners," hereinafter in these rules.

(2) Unconvicted prisoners are presumed to be innocent and shall be treated as such.

(3) Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners shall benefit by a special regime which is described in the following rules in its essential requirements only.

85. (1) Untried prisoners shall be kept separate from convicted prisoners.

(2) Young untried prisoners shall be kept separate from adults and shall in principle be detained in separate institutions.

86. Untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate.

87. Within the limits compatible with the good order of the institution, untried prisoners may, if they so desire, have their food procured at their own expense from the outside, either through the administration or through their family or friends. Otherwise, the administration shall provide their food.

88. (1) An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable.

(2) If he wears prison dress, it shall be different from that supplied to convicted prisoners.

89. An untried prisoner shall always be offered opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it.

90. An untried prisoner shall be allowed to procure at his own expense or at the expense of a third party such books, newspapers, writing materials and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution.

91. An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred.

92. An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.

93. For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.

Mr AB, Mr Soh, Mr CD, Mr Chenina, Mr Gill and Mr Qasim were held in NSW and WA correctional facilities. Although these detainees did receive separate treatment in terms of their work and visiting rights, I have formed the view that the treatment they received in these facilities was substantially the same as that received by convicted prisoners in the NSW and WA correctional facilities. For example, these detainees did not enjoy many of the entitlements detailed above in Part II, Section C of the Standard Minimum Rules. Most notably, they were treated in exactly the same manner as convicted prisoners in respect of their living quarters, their telephone access to family and friends and in their prison dress. In addition, they did not have access to their own doctor or dentist and were not they permitted to have food procured at their own expense from the outside, either through the administration or through their family or friends. Therefore, I have formed the view that article 10(2)(a) of the ICCPR has been breached. I confirm that it is the failure of the Commonwealth to provide these detainees with separate treatment appropriate to their status as unconvicted prisoners that has lead to this breach and not its failure to comply with many aspects of the Standard
Minimum Rules.

4.5 Summary of Findings

For the reasons set out above in this Report, I find that:

(a) the transfer of Mr CD to the MRRC was an act of the Commonwealth which was inconsistent with and contrary to his human rights recognised in article 9(1) of the ICCPR;

(b) the decision to continue the detention of Mr Gill and Mr Qasim in WA State prisons between 16 July 1999 and 17 September 1999 was an act of the Commonwealth which was inconsistent with and contrary to their human rights recognised in article 9(1) of the ICCPR;

(c) the failure by the Department to consider the rape of Mr AB in the monthly reviews of the place of his detention after 15 July 1998, and in the decision to transfer him to the MRRC on 26 August 1998, were acts of the Commonwealth which were inconsistent with and contrary to his human rights recognised in article 10(1) of the ICCPR;

(d) the failure by the Commonwealth to provide Mr AB, Mr Soh, Mr Chenina, Mr CD, Mr Gill and Mr Qasim with separate treatment while they were held in immigration detention in NSW and WA State prisons was inconsistent with and contrary to their human rights recognised in article 10(2)(a) of
the ICCPR.

5. General Comments

5.1 Decision to transfer a detainee to a State prison

5.1.1 Basis for transfer to a State prison

Paragraph 2.1 of MSI 244 provides that detention of immigration detainees within State prisons occurs as a last resort. Examples of the circumstances in which such a transfer can occur are stated to include:

Behavioural concerns

While being held at an IDC a person's behaviour is considered to be unacceptable for the low security IDC environment, because of:

the risk to other detainees

violent behaviour and/or unlawful behaviour, the inability of management and the detainee to resolve the unacceptable behaviour; or

the risk of absconding from lawful custody; or

At the time of being taken into immigration detention a person is assessed as being suitable to mix with other detainees at an IDC.

Completion of a custodial sentence

The detainee had completed a custodial sentence in prison and:

(a) removal or deportation is expected to take place within seven days of the expiration of the criminal sentence; and
(b) a review has determined that there are good reasons for the person not being detained at an IDC.

Location (Absence of an IDC)

No purpose built IDC exists in the State or Territory where the person entered Australia or was detained by DIMA.

As noted in Part 4.4.1.1(a) of this Report, the transfer of a person detained within an IDC to a State prison involves a further and serious deprivation of that person's liberty. For this reason, I have formed the view that issues of convenience, such as the fact that the behaviour of a detainee may be difficult to manage

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