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President reports on Parker v Commonwealth (DIAC) [2013] AusHRC 68

Legal Legal

The President of the Australian Human Rights Commission, Professor Gillian Triggs, has found that the Commonwealth did not detain Mr Parker in accordance with the procedures established by law and as such Mr Parker’s detention was inconsistent with the right to liberty in article 9(1) of the International Covenant on Civil and Political Rights. Mr Parker was detained in Perth Immigration Detention Centre from 30 April 2004 to 31 October 2004.

Mr Parker is a national of Zimbabwe and was married to an Australian citizen. In 1999, Mr Parker and his then wife entered Australia. In January 2000, Mr Parker applied for a permanent Spouse visa. In connection with that application he was granted a Bridging visa which was to remain in force whilst his application for a Spouse visa was pending.

In April 2001, Mr Parker and his wife separated. In January 2002, the Department wrote to Mr Parker and advised him that his application for a permanent Spouse visa had been refused. The notification of refusal of the Spouse visa was defective because it was not dated. As a result of this defect, Mr Parker’s Bridging visa remained in force.

The Commonwealth states that at the time Mr Parker was detained, the Department was not aware of the defect in the letter advising Mr Parker of the refusal of his Spouse visa. The Migration Act states that ‘if an officer knows or reasonably suspects that a person…is an unlawful non-citizen, the officer must detain the person.’ The Commonwealth states that as the Department was unaware of the defect, officers of the Department believed that the basis for forming a reasonable suspicion that Mr Parker was an unlawful non-citizen was satisfied.

The deprivation of a person’s liberty is a serious matter and should only occur strictly in accordance with law.

Professor Triggs held that in circumstances where a person has been granted a number of Bridging visas, it is reasonable to expect that before detaining such a person, a Departmental officer would check the Department’s file to ensure that each Bridging visa had expired. Where a Bridging visa expires because the person has been notified of a refusal to grant a visa, Professor Triggs considered that it is reasonable to expect that a Departmental officer would check whether the notification of refusal of the visa was valid. Professor Triggs found that there was not a sufficient search by the Departmental officers who detained Mr Parker to make the formation of reasonable suspicion justifiable on objective examination.
The President recommended that Mr Parker be paid compensation in the amount of $100,000 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: Parker v Commonwealth (Department of Immigration and Citizenship) is available online at http://www.humanrights.gov.au/publications/parker-v-commonwealth-diac.

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