Date: 
Monday 1 December 2014

Four men denied refugee status were held in closed immigration detention facilities for prolonged periods despite meeting the criteria for community detention.

The failure to detain the men in the least restrictive manner possible was inconsistent with the prohibition on arbitrary detention in article 9(1) of the International Covenant on Civil and Political Rights, the Australian Human Rights Commission has found.

Mr FA, a Vietnamese man was first considered for community detention after 2 years in immigration detention. Medical reports confirmed he had a ‘deteriorating mental illness’. Despite meeting the guidelines for community detention, the department failed to provide an appropriate recommendation to the Minister. At the end of the Commission’s inquiry, he had been detained for more than 4 years and 7 months. In response to the Commission’s recommendations, the department confirmed that it was preparing a community detention submission for the Minister.

Mr FB, a Sri Lankan man was first considered for community detention after 2 years in immigration detention. It then took 8 months before he was placed into community detention. Mr FB is currently on a bridging visa pending his removal from Australia. 

Mr FC, a Hazara man was detained when he was 20 years old. He was first assessed as meeting the guidelines for community detention after a year and 8 months of detention. However, it took a further 9 months for a community detention submission to be sent to the Minister. In the meantime, he was put in one of the highest security immigration detention centres in Australia. This was contrary to an assessment by a case manager that a less restrictive environment was appropriate given his age, time in detention and particular vulnerabilities. At the end of the Commission’s inquiry, he had been detained for more than 4 years and 2 months. This was more than two and a half years since he met the guidelines for community detention. In response to the Commission’s recommendations, the department confirmed that Mr FC was granted a bridging visa and is now living in the community.

Mr FD, a Faili Kurdish man was first considered for community detention after a year and 3 months in immigration detention. He had mental health problems as a result of his detention. Despite his history of mental illness, the request for community detention took more than 6 months to process. During this period Mr FD engaged in at least two serious acts of self-harm. Mr FD was eventually placed in community detention after a year and 10 months in closed detention.

The Commission made recommendations that the Commonwealth pay compensation to the complainants and provide them with an apology. These recommendations were not accepted.

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 Fadhel v Commonwealth of Australia (Department of Immigration and Border Protection) is available online.

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