The President of the Australian Human Rights Commission, Professor Gillian Triggs, has found that the failure to grant Mr Mirza Jan a visa or place him in a less restrictive form of detention than Villawood Immigration Detention Centre, during the three years he was detained, was arbitrary and inconsistent with his right to liberty under article 9 of the International Covenant on Civil and Political Rights (ICCPR).
Mr Mirza Jan is a national of Afghanistan who arrived at Sydney Airport on 16 February 2010, without identity documents or a visa. Upon arrival he was transferred to Villawood Immigration Detention Centre, where he remained until being released on a Bridging visa on 27 March 2013.
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 President noted that the Department was unable to establish Mr Mirza Jan’s identity for a significant period of time.
She accepted that detention may be justified in order to conduct initial investigations including identity checks by the Department. However, if identity cannot be established after a reasonable period of time, consideration should be given to whether an individual can be detained in a less restrictive manner, if necessary with conditions, to mitigate any identified risks.
The President found that the Commonwealth had not explained why Mr Mirza Jan could not have been placed in a less restrictive form of detention or granted a Bridging visa during the period he was detained. She found that the Commonwealth’s failure to grant Mr Mirza Jan a visa or place him in a less restrictive form of detention than Villawood Immigration Detention Centre was arbitrary and inconsistent with his right to liberty under article 9 of the ICCPR.
Mr Mirza Jan stated that an apology would be an effective remedy to his complaint. For this reason, the President recommended that the Commonwealth provide a letter of apology to Mr Mirza Jan.
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: Ismail Mirza Jan v Commonwealth of Australia (Department of Immigration and Citizenship) is available online at https://www.humanrights.gov.au/publications/ismail-mirza-jan-v-commonwe… .
Media contact: Sarah Bamford (02) 9284 9758 or 0417 957 525.