Date: 
Monday 1 December 2014

A delegate of the President of the Australian Human Rights Commission has found that the failure of the former Ministers for Immigration to exercise their powers to make a residence determination in respect of Mr Daniel Charlie during the period from November 2009 to September 2011 when he was detained at Villawood Immigration Detention Centre (VIDC) was inconsistent with his right to liberty in article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) and arbitrarily interfered with his family in breach of articles 17(1) and 23(1) of the ICCPR.

Mr Charlie was born in the country now known as Papua New Guinea. In 1981, Mr Charlie was granted a Permanent Entry Permit for Australia and in 1994, he was assessed as possessing an Absorbed Persons visa.

Mr Charlie has been convicted of a range of criminal offences and has served two periods of imprisonment, one from 1992 until 1999 and the other from 2001 until 2007. On 6 August 2007, Mr Charlie’s visa was cancelled on character grounds pursuant to section 501 of the Migration Act. On 8 August 2007, Mr Charlie was released from police custody and detained at VIDC. Mr Charlie was detained by the then Department of Immigration with a view to removal to Papua New Guinea.

Mr Charlie was released from VIDC on 20 September 2011 when he was granted a Removal Pending Bridging Visa.

Mr Charlie claimed that his detention in VIDC from 8 August 2007 until 20 September 2011 was arbitrary within the meaning of article 9(1) of the ICCPR. The Commonwealth denied that his detention was arbitrary and states it was appropriate as it was both (a) based on legitimate concerns about Mr Charlie’s character and the risk his release could pose to the Australian community, and (b) for the purpose of removing him from Australia. The President’s delegate found that Mr Charlie’s detention became arbitrary from November 2009 as by this time:

  • the Commonwealth was on notice of ongoing difficulties associated with securing his removal to Papua New Guinea; and
  • Mr Charlie’s behaviour had improved such that he was no longer considered a danger to the community or a flight risk.

The President’s delegate also found that Mr Charlie’s lengthy detention in VIDC interfered with his ability to maintain a relationship with his family. The President’s delegate found that the failure of the former Ministers to make a residence determination in relation to Mr Charlie during the period from November 2009 to September 2011 (the period in which detention was found to be arbitrary) arbitrarily interfered with his family in breach of articles 17(1) and 23(1) of the ICCPR.

The President’s delegate recommended that Mr Charlie be paid compensation in the amount of $200 000 and issued with a formal written apology for the breach of his human rights.

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: Charlie v Commonwealth of Australia (DIBP) is available online.

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