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President reports on Fadhel v Commonwealth of Australia (Department of Immigration and Border Protection) [2014] AusHRC 82

Legal Legal

The President of the Australian Human Rights Commission, Professor Gillian Triggs, has found that Mr Fadhel’s detention in an immigration detention centre is arbitrary within the meaning of article 9 of the International Covenant on Civil and Political Rights (ICCPR).  The President also found that Mr Fadhel’s continued detention has caused him a level of mental impairment such that it amounts to cruel, inhuman or degrading treatment within the meaning of article 7 of the ICCPR. 

Mr Fadhel is a national of Indonesia who arrived in Australia by plane in November 2007.  He was refused immigration clearance and was transferred to Villawood Immigration Detention Centre (VIDC).  In September 2011, the then Minister for Immigration made a residence determination in relation to Mr Fadhel and he was placed in community detention. 

On 1 May 2012, Mr Fadhel was returned to VIDC.  Mr Fadhel’s removal from Australia was scheduled for 3 May 2012, but on 2 May 2012 he commenced proceedings to challenge his removal. Mr Fadhel remains detained in VIDC.
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. 

It appears that Mr Fadhel was detained by the Commonwealth from November 2007 until September 2011 because the Commonwealth was unable to determine his identity and obtain a travel document for him.  However, Mr Fadhel’s identity had not been confirmed when he was placed in community detention in September 2011, which suggested that it was not necessary to confirm his identity before placing him in community detention.  Mr Fadhel lived in the community without incident for seven months.  The President did not find any information to support the view that it was necessary to detain Mr Fadhel in an immigration detention centre.  She concluded that his periods of detention in VIDC were arbitrary under article 9 of the ICCPR.   

The President found that Mr Fadhel’s mental health has significantly deteriorated whilst he has been detained in closed immigration detention.  Mr Fadhel has repeatedly engaged in self-harm.  Mental health professionals assessing Mr Fadhel have repeatedly recommended his release into the community, stating that this was essential for his treatment.  The Department has also been advised by a psychologist who has assessed Mr Fadhel on a number of occasions that if Mr Fadhel’s detention were to continue, he would be at risk of suicide.  The President found that Mr Fadhel’s continued detention amounted to cruel, inhuman or degrading treatment within the meaning of article 7 of the ICCPR.

The President recommended that the Department refer Mr Fadhel’s case to the Minister so that the Minister may consider exercising his powers to grant Mr Fadhel a Bridging visa or to make a residence determination.

The President also recommended that Mr Fadhel be paid compensation in the amount of $400,000. 

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 Fadhel v Commonwealth of Australia (Department of Immigration and Border Protection) is available online.

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