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President reports on HA, HB, HC, HD and HE v Commonwealth of Australia (Department of Immigration and Border Protection) [2014] AusHRC 87

Legal Legal

The President of the Australian Human Rights Commission, Professor Gillian Triggs, conducted an inquiry into complaints by five men who are or were in closed immigration detention. As a result of the inquiry, the President found that:

  • The Department’s failure to consider the complainant’s individual circumstances and suitability for less restrictive forms of detention (if necessary with conditions) was arbitrary and inconsistent with their right to liberty under article 9(1) of the International Covenant on Civil and Political Rights (ICCPR); and
  • The practice of the Minister for Immigration and Border Protection that he would not consider individuals who are facing criminal charges for community detention was contrary to article 9(1) of the ICCPR.

Messrs HA, HB, HC, HD and HE arrived on Christmas Island as irregular maritime arrivals between late 2009 and early 2010.  Each of them sought asylum in Australia and was transferred from Christmas Island to Villawood Immigration Detention Centre (VIDC).

In April 2011, Messrs HA, HB, HC, HD and HE allegedly took part in rooftop protests/riots at VIDC (April 2011 riots).

Prior to the April 2011 riots, Messrs HA, HB, HC, HD and HE had been detained in closed immigration detention facilities for periods ranging from 15 to 19 months. During this period of time, the Department did not consider their individual suitability for community detention and did not refer their cases to the Minister for the consideration of the exercise of his powers to grant a visa or make a residence determination. The Department has provided no explanation for its failure to consider less restrictive alternatives to closed detention during this extended period of time.

Each of the complainants was charged by the Australian Federal Police (AFP) in relation to the VIDC riots. They were initially bail refused and remanded in criminal custody. Bail was subsequently granted and they were returned to immigration detention at VIDC.

In February 2012, the then Minister for Immigration advised the Department that he would not consider individuals who are facing criminal charges for community detention or bridging visas.  As a result of this policy, the individual circumstances of Messrs HA, HB, HC, HD and HE and their suitability for less restrictive forms of detention (if necessary with conditions) was not considered.  Rather, the Department acted on the basis of a direction given by the Minister in relation to all detainees with ongoing criminal proceedings.

The President found the:

  • Department’s failure to consider the complainants’ individual circumstances and suitability for less restrictive forms of detention; and
  • the Minister’s policy not to consider individuals who are facing criminal charges for community detention

to be contrary to article 9(1) of the ICCPR.

The President made a number of recommendations, including that:

  • the Department refer these individual cases to the Minister so that he may consider exercising his powers to grant a Bridging visa or to make a residence determination; and
  • the Minister advise the Department that he will consider individuals for community detention who are persons of interest to the AFP or facing criminal charges.

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 HA, HB, HC, HD and HE v Commonwealth of Australia (DIBP) is available online.

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