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President reports on Arif v Commonwealth of Australia (DIBP) [2014] AusHRC 75

Asylum Asylum Seekers and Refugees

The President of the Australian Human Rights Commission, Professor Gillian Triggs, has found that the detention of Mr Arif in an immigration detention centre for more than two years was arbitrary and inconsistent with his right to liberty in article 9 of the International Covenant on Civil and Political Rights (ICCPR).

Mr Arif arrived in Australia from Pakistan on 14 February 2006, having been issued with a Student visa.  In April 2008, his Student visa expired.  He was subsequently granted a number of Bridging visas to allow him to apply for a further Student visa.  He did not do so.  Subsequently, between June and September 2008, he was granted a series of four Bridging visas on departure grounds.  Mr Arif did not depart Australia.  He was detained on 18 March 2009 and placed in Villawood Immigration Detention Centre as he was an unlawful non-citizen.

On 19 March 2009, Mr Arif lodged a protection visa application, which was refused.  Mr Arif commenced judicial review proceedings in relation to that decision. These proceedings were ultimately dismissed by the High Court in March 2011.  In June 2011, Mr Arif was returned to Pakistan.

Under international law, to avoid being arbitrary, detention must be necessary and proportionate to a legitimate aim of the Commonwealth.

There is an obligation on the Commonwealth to demonstrate that there was not a less invasive way than detention to achieve the ends of its immigration policy.  The Commonwealth submitted that in considering Mr Arif for less restrictive forms of detention, it assessed that his placement in a detention centre was appropriate, reasonable and justified ‘based on his history of non-compliance with Bridging visa conditions and the risk of absconding’.

The President found that Mr Arif’s previous breach of Bridging visa conditions did not necessarily indicate that he represented a flight risk and any risk that he might abscond could have been mitigated by the imposition of strict reporting conditions on his community detention placement.  She found that his detention in an immigration detention centre for more than two years was arbitrary within the meaning of Article 9 of the ICCPR, save for a short period of time when the Commonwealth facilitated his removal from Australia.

The President recommended that Mr Arif be paid compensation in the amount of $200,000.

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: Arif v Commonwealth of Australia (Department of Immigration and Citizenship) is available online.

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