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President reports on Ogawa v Commonwealth (DIAC) [2013] AusHRC 69

Legal Legal

The President of the Australian Human Rights Commission, Professor Gillian Triggs, has found that the detention of Dr Ogawa in an immigration detention centre from 20 May 2006 to 26 July 2006 was arbitrary and inconsistent with her right to liberty in article 9 of the International Covenant on Civil and Political Rights.

Dr Ogawa arrived in Australia, having been issued with a Student visa. In September 2003, her Student visa was cancelled under the Migration Act following a dispute with Melbourne University about the appointment of an appropriate supervisor for her doctoral thesis. Dr Ogawa appealed the decision to cancel her Student Visa. Subsequently, on 6 July 2004, Dr Ogawa was granted a Bridging visa on the basis that she had applied for judicial review of the decision relating to her Student visa. This Bridging visa expired on 17 February 2005; 28 days after the judicial review proceedings were completed.

When Dr Ogawa was detained on 19 May 2006, she was an unlawful non-citizen.

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 Dr Ogawa was detained in order to facilitate her removal from Australia, removal which did not eventuate because she applied for another visa.

The Minister has the power to specify alternative detention arrangements for people in immigration detention. Dr Ogawa could have been placed in community detention or the Minister could have approved a place in the community as a place of detention.

The Department has not explained why Dr Ogawa could not reside in the community or in a less restrictive form of detention (if necessary with appropriate conditions imposed to mitigate any risks) while her immigration status was resolved. The Department did not appear to have considered any other alternatives to detention in an immigration detention centre.

Dr Ogawa was detained in Villawood Immigration Detention Centre from 20 May 2006 until she was released on a Bridging Visa on 26 July 2006.

Professor Triggs found that the failure to place Dr Ogawa in community detention or another less restrictive form of detention was arbitrary and inconsistent with the right to liberty.

Professor Triggs recommended that Dr Ogawa be paid compensation in the amount of $50,000, and be provided with a written apology.

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: Ogawa v Commonwealth (Department of Immigration and Citizenship) is available online at http://www.humanrights.gov.au/publications/ogawa-v-commonwealth-diac.

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