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President reports on Abdellatif v Commonwealth (Department of Immigration and Border Protection)

Legal Legal

Mr Sayed Abdellatif, his wife and their six children were detained in closed immigration detention for more than 18 months after being prima facie found to be people to whom Australia had protection obligations, and for more than 10 months without a referral being made to the Minister for Immigration to consider allowing them to apply for a visa.

Mr Abdellatif was the subject of an Interpol Red Notice based on offences alleged to have been committed in Egypt.  He denies the charges in the notice.

In response to the issue of delay in referring the case to the Minister, the Department of Immigration and Border Protection noted that it was seeking further information through the Australian Federal Police from Egyptian authorities in relation to Mr Abdellatif before referring the case to the Minister.  However, it conceded that the Egyptian authorities had said that no further information would be provided unless extradition was under consideration.  There has been no extradition request.

After considering the reasons given by the department, the President of the Australian Human Rights Commission found that the delays in referral of the case to the Minister for his consideration were not proportionate to the legitimate aim of ensuring the effective operation of Australia’s migration system. 

As a result, the detention of the family was arbitrary, contrary to article 9(1) of the International Covenant on Civil and Political Rights and article 37(b) of the Convention on the Rights of the Child (CRC).  The President also found a breach of article 3 of the CRC.

The President also noted that there was no reason not to progress the applications by other family members for protection pending the receipt of character and security checks in relation to Mr Abdellatif.  Mr Abdellatif confirmed that he had no objection to the protection applications of his wife and children being processed prior to his application, provided that the family was not physically separated.

The Commission did not inquire into aspects of Mr Abdellatif’s complaint that related to the Interpol Red Notice or security assessments conducted by ASIO as this was the subject of a separate inquiry by the Inspector General of Intelligence and Security.

The Commission recommended that the department promptly finalise the submission to the Minister to consider allowing the family to apply for a visa.  When the department responded, it confirmed that a submission had been finalised and provided to the Minister.  It said that the Minister’s office had sought further advice from the department in relation to the submission.

As this decision can be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth), this is the only statement the Commission will be making on this matter.

A copy of this report: Abdellatif v Commonwealth (Department of Immigration and Border Protection) is available online at http://www.humanrights.gov.au/publications/abdellatif-v-commonwealth-di….

Media contact: Sarah Bamford (02) 9284 9758 or 0417 957 525.