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AusHRC 44: Mr Toro-Martinez v Commonwealth of Australia (Department of Immigration and Citizenship)

2011

Mr Toro-Martinez v
Commonwealth of Australia
(Department of Immigration
and Citizenship)

Report into arbitrary detention, the right of people in detention to
protection of the family and freedom from arbitrary interference with the
family

[2011] AusHRC 44


May 2011

The Hon Robert McClelland MP
Attorney General
Parliament
House

Canberra ACT 2600

Dear Attorney
I attach my report of an inquiry into the complaint made
pursuant to section 11(1)(f)(ii) of the Australian Human Rights Commission
Act 1986
(Cth) by
Mr Toro-Martinez.

I have found that the acts
and practices of the Commonwealth breached
Mr Toro-Martinez’s right
not to be subject to arbitrary detention and his right to protection of and
freedom from arbitrary interference with his family. These fundamental human
rights are protected by articles 9(1), 17(1) and 23(1) of the International
Covenant on Civil and Political Rights
.

By letter dated 19 April 2011
the Department of Immigration and Citizenship provided the following response to
my findings and recommendations:

The Department's response on behalf of the Commonwealth of Australia to
the findings and recommendations of the AHRC with regard to

Mr
Toro-Martinez

1. That payment of compensation in the amount of $100,000 is
appropriate

While we note your findings, in the Department's view Mr Toro-Martinez has
been and continues to be detained lawfully in accordance with the Migration
Act 1958
(Cth) (Migration Act) and his detention has not been and is not
arbitrary.

Accordingly, the Department advises the Commission that there will be no
action taken with regard to this recommendation.

2. That it is appropriate that the Commonwealth provide a formal written
apology to Mr Toro-Martinez for the breaches of his human rights identified in
the report

The Department disagrees with this recommendation.

While there was a period of time between Mr Toro-Martinez making his request
for community detention in March 2009 and the Minister’s intervention in
September 2009, this is not an unreasonable period of time given the complexity
of the case. There is no obligation to consider a request for community
detention and any residence determinations are made at the discretion of the
Minister who takes a range of considerations into account. There is no formal
application process for community detention.

The Department advises the Commission that there will be no action taken with
regard to this recommendation.

3. That the guidelines to the Minister’s residence determination
power should be amended

The Department notes your recommendations regarding the guidelines for the
Minister’s residence determination power. Your comments will be taken into
account in any future consideration that may be given to amending the section
197AB Ministerial guidelines.

Yours sincerely

Catherine Branson
President
Australian Human Rights
Commission


Contents


1 Introduction

  1. This is a report of my inquiry into a complaint of breach of human rights
    made to the Australian Human Rights Commission (the Commission) by Mr
    Toro-Martinez. The complaint is made against the Commonwealth of Australia,
    Department of Immigration and Citizenship (DIAC).

  2. This inquiry was undertaken pursuant to section 11(1)(f) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

  3. I have found that the failure by the Commonwealth from 6 November 2008 until
    1 September 2009 to place Mr Toro-Martinez in a less restrictive form of
    detention than Villawood Immigration Detention Centre (VIDC) amounts to a breach
    of his right not to be arbitrarily detained.

  4. I have also found that the failure to place Mr Toro-Martinez in a less
    restrictive form of detention amounted to arbitrary interference with his family
    and interfered with his right to protection of the family.

2 Summary

  1. In 1989 Mr Toro-Martinez was granted a Transitional Permanent Visa. In
    November 1999 Mr Toro-Martinez was convicted of being knowingly concerned with
    the importation of a trafficable quantity of cocaine. He was sentenced to three
    years and six months imprisonment, which was increased on appeal to a period of
    six years imprisonment. In February 2002 Mr Toro-Martinez was convicted of being
    knowingly concerned in the importation of a commercial quantity of cocaine and
    was sentenced to 12 years and six months imprisonment.

  2. In November 2001 Mr Toro-Martinez’s visa was cancelled pursuant to
    s 501 of the Migration Act 1958 (Cth) (Migration Act). In March 2007
    the cancellation of Mr Toro-Martinez’s visa was found to be affected by
    the decision in Sales v Minister for Immigration and Multicultural
    Affairs
    [1] and his visa was
    reinstated. Following amendments made to the Migration Act in March 2008, Mr
    Toro-Martinez’s visa was again cancelled pursuant to s 501 of the
    Migration Act.

  3. On 8 June 2008 Mr Toro-Martinez was released from prison and detained in
    VIDC. On 24 July 2008 Mr Toro-Martinez was found to be affected by the decision
    in Sales v Minister for Immigration and
    Citizenship
    [2] (Sales 2) and was
    released from VIDC. On 6 November 2008 Mr Toro-Martinez again became an unlawful
    non-citizen as a result of a change to the Migration Act and was returned to
    detention.

  4. On 10 February 2009 Mr Toro-Martinez submitted a request to the ‘DIAC
    Manager’ at VIDC to be placed in community detention. On 23 March 2009 Mr
    Toro-Martinez wrote to the Minister and requested that he be placed in community
    detention. On 15 April 2009 DIAC acknowledged Mr Toro-Martinez’s
    request and stated that the Minister had referred the request to DIAC for
    consideration. On 2 September 2009 Mr Toro-Martinez was placed in community
    detention.

  5. I have found that Mr Toro-Martinez’s detention during the almost 10
    month period from 6 November 2008 to 1 September 2009 was arbitrary in breach of
    his right under article 9(1) of the International Covenant on Civil and
    Political Rights
    (ICCPR) not to be arbitrarily detained.

  6. The Commonwealth had been aware for a substantial period of time that it was
    likely that Mr Toro-Martinez would enter the custody of DIAC at the conclusion
    of his non-parole period in June 2008. In addition, the Commonwealth had a
    further six weeks to consider how Mr Toro-Martinez might be detained in the
    least restrictive manner when he was first in DIAC custody from 8 June to 24
    July 2008. I consider it was unreasonable for the Commonwealth to take nine
    months to place Mr Toro-Martinez in a less restrictive form of detention after
    he was returned to VIDC in November 2008.

  7. Further, the Commonwealth claims that there was evidence before it that Mr
    Toro-Martinez was a threat to the community. I am not satisfied that the
    evidence to which the Commonwealth refers raises particularly complex
    considerations. There was evidence before the Minister to suggest that Mr
    Toro-Martinez did not pose a risk to the community; an individual who was
    considered to be a danger to the community would not have been granted parole
    and Mr Toro-Martinez resided in the community after being released from VIDC on
    24 July 2008 without incident.

  8. I have also found that the failure to place Mr Toro-Martinez in a less
    restrictive form of detention amounted to arbitrary interference with his family
    and with his entitlement to protection of the family in breach of articles 17(1)
    and 23(1) of the ICCPR.

  9. As a result of his detention in VIDC, Mr Toro-Martinez was separated from
    his partner with whom he had only recently reunited after a long period of
    separation during his imprisonment. I have found that Mr Toro-Martinez’s
    detention at VIDC from 6 November 2008 to 1 September 2009 was arbitrary. In
    these circumstances, I also find that the interference with
    Mr
    Toro-Martinez’s family occasioned by his detention was arbitrary.

  10. I have recommended that Mr Toro-Martinez be paid a total of $100 000 in
    compensation and that the Commonwealth apologise to Mr Toro-Martinez. I also
    recommended amendments to the guidelines relating to the Minister’s
    residence determination power, including:

    • to provide that unless DIAC is satisfied that a
      person in an immigration detention facility is a flight risk or poses an
      unacceptable risk to the Australian community that cannot be addressed through
      the imposition of conditions on community detention, DIAC should refer all
      persons to the Minister for consideration of making a residence determination as
      soon as practicable and in no circumstances any later than 90 days after the
      individual is placed in an immigration detention
      facility;

    • to provide expressly that the
      existence of a criminal record is insufficient evidence of itself that an
      individual poses an unacceptable risk to the Australian community.

3 The complaint by Mr
Toro-Martinez

3.1 Background

  1. On or about 25 April 2009 Mr Toro-Martinez made a complaint to the
    Commission. On 29 September 2009 the Commonwealth provided a response to the
    complaint.

  2. Mr Toro-Martinez and the Commonwealth have also had the opportunity to
    respond to my tentative view dated 17 August 2010. Mr Toro-Martinez provided
    further submissions dated 21 September 2010 and the Commonwealth provided
    further submissions dated 25 October 2010.

  3. Mr Toro-Martinez and the Commonwealth have also had the opportunity to
    respond to the Notice of my inquiry into the complaint.

  4. My function in investigating complaints of breaches of human rights is not
    to determine whether the Commonwealth has acted consistently with Australian law
    but whether the Commonwealth has acted consistently with the human rights
    defined and protected by the ICCPR.

  5. It follows that the content and scope of the rights protected by the ICCPR
    should be interpreted and understood by reference to the text of the relevant
    articles of the international instruments and by international jurisprudence
    about their interpretation.

3.2 Findings of
Fact

  1. I consider the following statements about the circumstances which have given
    rise to Mr Toro-Martinez’s complaint to be uncontentious.

  2. In 1989 Mr Toro-Martinez was granted a Transitional Permanent Visa.

  3. On 26 November 1999 Mr Toro-Martinez was convicted of being knowingly
    concerned with the importation of a trafficable quantity of cocaine and
    sentenced to three years and six months imprisonment. On
    7 June 2000 Mr
    Toro-Martinez’s sentence was increased on appeal to a period of six years
    imprisonment.

  4. On 29 November 2001 Mr Toro-Martinez’s Transitional Permanent Visa was
    cancelled pursuant to s 501 of the Migration Act.

  5. On 25 February 2002 Mr Toro-Martinez was convicted of being knowingly
    concerned in the importation of a commercial quantity of cocaine and was
    sentenced to 12 years and six months imprisonment.

  6. On 13 March 2007 the cancellation of Mr Toro-Martinez’s visa was found
    to be affected by the decision in Sales v Minister for Immigration and
    Multicultural Affairs
    [3] and his visa was reinstated. On 10 March 2008 amendments were made to the
    Migration Act which affected Mr Toro-Martinez and his visa was again cancelled
    pursuant to s 501 of the Migration Act.

  7. On 8 June 2008 Mr Toro-Martinez was released from prison and detained in
    VIDC.

  8. On 24 July 2008 Mr Toro-Martinez was found to be affected by the
    decision in Sales v Minister for Immigration and
    Citizenship
    [4] (Sales 2) and was
    released from VIDC.

  9. On 6 November 2008 Mr Toro-Martinez was returned to detention as he again
    became an unlawful non-citizen as a result of the change in the law effected by
    the Migration Legislation Amendment Act (No 1) 2008 (Cth) (Migration Amendment Act).

  10. On 10 February 2009 Mr Toro-Martinez submitted a request to the ‘DIAC
    Manager’ at VIDC to be placed in community detention.

  11. On 23 March 2009 Mr Toro-Martinez wrote to the Minister and requested that
    he be placed in community detention.

  12. On 15 April 2009 Ms Alison Larkins, First Assistant Secretary, Compliance
    and Case Resolution Division, DIAC, acknowledged Mr Toro-Martinez’s
    request to be placed in community detention and stated that the Minister had
    referred the request to DIAC for consideration.

  13. On 2 September 2009 Mr Toro-Martinez was placed in community
    detention.

4 The Commission’s
human rights and inquiry and complaints function

  1. Section 11(1)(f) of the AHRC Act gives the Commission the function of
    inquiring into any act or practice that may be inconsistent with or contrary to
    any human right.

  2. Section 20(1)(b) of the AHRC Act requires the Commission to perform that
    function when a complaint is made to it in writing alleging such an act or
    practice.

4.1 The Commission can
inquire into acts or practices of the Commonwealth

  1. The expressions ‘act’ and ‘practice’ are defined in
    section 3(1) of the AHRC Act to include an act done or a practice engaged in
    ‘by or on behalf of the Commonwealth’ or under an enactment.

  2. Section 3(3) of the AHRC Act also provides that a reference to, or the doing
    of, an act includes a reference to a refusal or failure to do an act.

  3. An ‘act’ or ‘practice’ only invokes the human rights
    complaints jurisdiction of the Commission where the relevant act or practice is
    within the discretion of the Commonwealth, its officers or its agents.

  4. As a judge of the Federal Court in Secretary, Department of Defence v
    HREOC
    , Burgess & Ors (Burgess),[5] I found that the
    Commission could not, in conducting its inquiry, disregard the legal obligations
    of the Secretary in exercising a statutory power. Therefore, if a law requires
    that the act or practice be done by or on behalf of the Commonwealth, its
    officers or agents and there is no discretion involved, the act or practice done
    pursuant to that statutory provision will be outside the scope of the
    Commission’s human rights inquiry
    jurisdiction.[6]

  5. Mr Toro-Martinez was detained in VIDC for the second time on
    6 November
    2008. He was detained as an unlawful non-citizen as a result of the change in
    the law effected by the Migration Amendment Act. He was released from VIDC when
    he was transferred to a residential determination accommodation arrangement on 2
    September 2009.

  6. Section 189 of the Migration Act requires the detention of unlawful
    non-citizens. Mr Toro-Martinez was an unlawful non-citizen and as such was
    required to be detained. However, the Migration Act did not require that
    Mr
    Toro-Martinez be detained in an immigration detention facility.

  7. Section 197AB of the Migration Act states:

    If the Minister
    thinks that it is in the public interest to do so, the Minister may make a
    determination (a residence determination) to the effect that one or more
    specified persons to whom this subdivision applies are to reside at a specified
    place, instead of being detained at a place covered by the definition of
    immigration detention in subsection 5(1).

  8. Further, the definition of ‘immigration detention’ includes
    ‘being held by, or on behalf of, an officer in another place approved by
    the Minister in
    writing’.[7]

  9. In the period 6 November 2008 to 1 September 2009 the Minister could have
    approved that Mr Toro-Martinez reside in a place other than VIDC or could have
    made a residence determination in relation to Mr Toro-Martinez under s 197AB of
    the Migration Act, as he ultimately did in September 2009.

  10. I consider that the Minister’s failure to place Mr Toro-Martinez in a
    less restrictive form of detention in the period 6 November 2008 until
    1
    September 2009 constitutes an act under the AHRC Act.

4.2 ‘Human
rights’ relevant to this complaint

  1. The expression ‘human rights’ is defined in s 3 of the AHRC Act
    and includes the rights and freedoms recognised in the ICCPR, which is set out
    in Schedule 2 to the AHRC Act.

  2. The articles of the ICCPR that are of particular relevance to this complaint
    are:

    • Article 9(1) (prohibition on arbitrary detention);

    • Article 17(1) (prohibition against arbitrary interference with family); and
      article 23 (protection of family).
(a) Article 9(1) of the
ICCPR
  1. Article 9(1) of the ICCPR provides:

    Everyone has the right to
    liberty and security of person. No one shall be subjected to arbitrary arrest or
    detention. No one shall be deprived of his liberty except on such grounds and in
    accordance with such procedure as are established by law.

  2. The requirement that detention not be ‘arbitrary’ is separate
    and distinct from the requirement that detention be lawful. In Van Alphen v
    The Netherlands
    ,[8] the United
    Nations Human Rights Committee (UNHRC) said:

    [A]rbitrariness is not
    to be equated with ‘against the law’ but must be interpreted more
    broadly to include elements of inappropriateness, injustice and lack of
    predictability. This means that remand in custody pursuant to lawful arrest must
    not only be lawful but reasonable in all the circumstances. Further, remand in
    custody must be necessary in all the circumstances, for example, to prevent
    flight, interference with evidence or the recurrence of
    crime.[9]

  3. A similar view was expressed in A v
    Australia
    [10] in which the UNHRC
    said:

    [T]he Committee recalls that the notion of
    ‘arbitrariness’ must not be equated with ‘against the
    law’ but be interpreted more broadly to include such elements as
    inappropriateness and injustice. Furthermore, remand in custody could be
    considered arbitrary if it is not necessary in all the circumstances of the
    case, for example to prevent flight or interference with evidence: the element
    of proportionality becomes relevant in this context. The State party however,
    seeks to justify the author’s detention by the fact that he entered
    Australia unlawfully and by the perceived incentive for the applicant to abscond
    if left in liberty. The question for the Committee is whether these grounds are
    sufficient to justify indefinite and prolonged
    detention.[11]

  4. In Kwok v Australia[12] the UNHRC said:

    With respect to the claim that the author was
    arbitrarily detained, in terms of article 9, paragraph 1, prior to her release
    into community detention, the Committee recalls its jurisprudence that, in order
    to avoid characterization of arbitrariness, detention should not continue beyond
    the period for which the State can provide appropriate justification. In the
    present case, the author’s detention as an unlawful non-citizen continued,
    in mandatory terms, for four years until she was released into community
    detention. While the State party has advanced general reasons to justify the
    author’s detention, the Committee observes that it has not advanced
    grounds particular to her case which would justify her continued detention for
    such a prolonged period. In particular, the State party has not demonstrated
    that, in the light of the author’s particular circumstances, there were no
    less invasive means of achieving the same
    ends.[13]

  5. In MIMIA v Al Masri,[14] the Full Federal Court stated that article 9(1) requires that arbitrariness is
    not to be equated with ‘against the law’ but is to be interpreted
    more broadly, and so as to include a right not to be detained in circumstances
    which, in the individual case, are ‘unproportional’ or
    unjust.[15]

  6. This broad view of arbitrariness has also been applied in the case of Manga v Attorney-General,[16] where Hammond J concluded that:

    The essence of the position taken in
    the tribunals, the case law, and the juristic commentaries is that under [the
    ICCPR] all unlawful detentions are arbitrary; and lawful detentions may also be
    arbitrary, if they exhibit elements of inappropriateness, injustice, or lack of
    predictability and proportionality.

    It has also been convincingly demonstrated that the reason for the use of the
    word ‘arbitrary’ in the drafting of the international covenant was
    to ensure that both ‘illegal’ and ‘unjust’ acts are
    caught. The (failed) attempts to delete the word ‘arbitrary’ in the
    evolution of art 9(1), and replace with the word ‘illegal’ are well
    documented.[17]

  7. In another New Zealand case dealing with arbitrary arrest and detention, Neilsen v
    Attorney-General
    ,[18] it was
    held that:

    An arrest or detention is arbitrary if it is capricious,
    unreasoned, without reasonable cause: if it is made without reference to an
    adequate determining principle or without following proper
    procedures.[19]

  8. In the context of the European Convention on Human Rights, a broad view has
    also been taken as to the scope of the term arbitrary. The European Court of
    Human Rights has held that:

    [I]t is a fundamental principle that no
    detention which is arbitrary can be compatible with [article] 5(1) and the
    notion of ‘arbitrariness’ in [article] 5(1) extends beyond lack of
    conformity with national law, so that a deprivation of liberty may be lawful in
    terms of domestic law but still arbitrary and thus contrary to the
    Convention.[20]

  9. The Court further held that ‘one general principle established in the
    case law is that detention will be “arbitrary” where, despite
    complying with the letter of national law, there has been an element of bad
    faith or deception on the part of the
    authorities’.[21]
(b) Articles 17(1) and
23(1) of the ICCPR
  1. I have considered whether Mr Toro-Martinez’s continued detention in
    VIDC has interfered with his family pursuant to articles 17 and 23 of the
    ICCPR.

  2. Article 17(1) of the ICCPR provides:

    No one shall be subjected
    to arbitrary or unlawful interference with his privacy, family, home or
    correspondence, nor to unlawful attacks on his honour and reputation.

  3. Article 23(1) provides:

    The family is the natural and
    fundamental group unit of society and is entitled to protection by society and
    the State.

  4. Professor Manfred Nowak has noted that:

    [T]he significance of
    Art. 23(1) lies in the protected existence of the institution
    “family”, whereas the right to non-interference with family life is
    primarily guaranteed by Art. 17. However, this distinction is difficult to
    maintain in practice.[22]

  5. For the reasons set out in Australian Human Rights Commission Report
    39[23] I consider that in cases
    alleging a State’s arbitrary interference with a person’s family, it
    is appropriate to assess the alleged breach under article 17(1). If an act is
    assessed as breaching the right not to be subjected to an arbitrary interference
    with a person’s family, it will usually follow that that breach is in
    addition to (or in conjunction with) a breach of article 23(1).

  6. In its General Comment on a 17(1), the UNHRC confirmed that a lawful
    interference with a person’s family may nevertheless be arbitrary, unless
    it is in accordance with the provisions, aims and objectives of the ICCPR and is
    reasonable in the particular
    circumstances.[24]

  7. It follows that the prohibition against arbitrary interferences with family
    incorporates notions of
    reasonableness.[25] In relation to
    the meaning of ‘reasonableness’, the UNHRC stated in Toonen v
    Australia
    :[26]

    The
    Committee interprets the requirement of reasonableness to imply that any
    interference with privacy must be proportional to the end sought and be
    necessary in the circumstances of any given
    case.[27]

  8. The relevant issue is whether there was an arbitrary interference with
    Mr Toro-Martinez’s family life. There is no clear guidance in the
    jurisprudence of the UNHRC as to whether a particular threshold is required in
    establishing that an act or practice constitutes an ‘interference’
    with a person’s family.

5 Forming my
opinion

  1. In forming an opinion as to whether any act or practice was inconsistent
    with or contrary to any human right I have carefully considered all of the
    information provided to me by both of the parties, including the submissions
    received from the parties in response to my tentative view.

6 Arbitrary
detention

  1. Mr Toro-Martinez claims that his detention in VIDC from 6 November 2008
    until 1 September 2009 was arbitrary.

  2. The Commonwealth disagrees that Mr Toro-Martinez’s detention was
    arbitrary. It claims that determining whether a detainee should be placed in
    community detention involves a delicate balancing of competing considerations.
    The Commonwealth also states that the law places a considerable responsibility
    for the safety of the Australian community on the Minister and DIAC when
    considering a request to be placed in community detention.

  3. The Commonwealth claims that given these factors and having regard to the
    processes in place for referring requests to be placed in community detention to
    the Minister, it was not unreasonable for the Commonwealth to take over 9 months
    to place Mr Toro-Martinez in community detention. Accordingly, the Commonwealth
    claims that Mr Toro-Martinez’s detention during this period was not
    arbitrary.

  4. Mr Toro-Martinez was first convicted of criminal offences in 1999 and his
    visa was cancelled pursuant to s 501 of the Migration Act in November 2001.
    Notwithstanding that there was some uncertainty about Mr Toro-Martinez’s
    immigration status between March 2007 and March 2008 as a result of the Sales decision, the Commonwealth had been aware for a substantial period
    of time that it was likely that Mr Toro-Martinez would enter the custody of DIAC
    at the conclusion of his non-parole period in June 2008.

  5. In addition, the Commonwealth had a further six weeks to consider how Mr
    Toro-Martinez might be detained in the least restrictive manner when he was
    first in the custody of DIAC from 8 June 2008 until 24 July 2008. Given these
    circumstances, I consider that it was unreasonable for the Commonwealth to take
    nine months to place Mr Toro-Martinez in a less restrictive form of detention
    after he was returned to VIDC in November 2008.

  6. The Commonwealth claims that assessing whether Mr Toro-Martinez should be
    placed in community detention took some time because there was evidence before
    the Minister and DIAC which suggested that Mr Toro-Martinez was a threat to the
    community. The Commonwealth refers to comments made when Mr Toro-Martinez was
    sentenced such as that Mr Toro-Martinez had ‘absolutely no regard to the
    harm that dissemination of cocaine causes to the community. . .’ and that
    ‘there is absolutely no contrition and his prospects for rehabilitation
    appear bleak.’[28]

  7. Mr Toro-Martinez was convicted of several serious criminal offences. The
    remarks referred to above were made in the context of sentencing him for these
    crimes and were made at least seven years before the Minister came to consider
    Mr Toro-Martinez’s request to be placed in community detention.

  8. The Commonwealth also refers to the Psychological Report for the Pre-Release
    Leave Committee which is dated 18 March 2008 and was written at the request of
    the Classification Coordinator at Cessnock Correctional Centre. This report
    states that ‘there is credible evidence of reform and
    rehabilitation’ but that (t)he effect of that evidence is weakened,
    however, by his refusal, for no acceptable reason, to accept responsibility for
    his major offence’. The report further states ‘(t)he period covered
    by his criminal activity was short, but it occurred when he was a man of mature
    age old enough to know better. The offences were also of a planned and
    calculated nature motivated by financial gain’.

  9. Whilst this report expresses some reservations about the extent to which Mr
    Toro-Martinez has been rehabilitated, it did not prevent Mr Toro-Martinez from
    being granted parole at the conclusion of his nonparole period. An individual
    who was considered to be a danger to the community would not have been granted
    parole.

  10. Further, there was evidence before the Minister which suggested that
    Mr
    Toro-Martinez did not pose a risk to the community. After being released from
    VIDC on 24 July 2008 Mr Toro-Martinez resided in the community without incident.
    In addition, when the law changed and he was required to return to VIDC, he did
    so voluntarily.

  11. It was also open to the Commonwealth to place Mr Toro-Martinez in community
    detention subject to conditions such as a curfew or reporting requirements. It
    is unclear why any concerns that the Commonwealth had about the potential risk
    that Mr Toro-Martinez might have posed to the community would not have been
    mitigated by the imposition of such conditions.

  12. I am not satisfied that the evidence to which the Commonwealth refers in
    relation to Mr Toro-Martinez’s potential threat to the community raises
    particularly complex considerations. Further, information such as the remarks of
    the judges that sentenced Mr Toro-Martinez had been available to the
    Commonwealth for a number of years.

  13. It was not reasonable for the Commonwealth to take over nine months to place
    Mr Toro-Martinez in community detention considering that it had known for a
    substantial period of time that it was likely that Mr Toro-Martinez would be
    entering the custody of DIAC in June 2008. The Commonwealth also had the six
    week period from 8 June 2008 to 24 July 2008 when Mr Toro-Martinez was first
    placed in VIDC to determine how he could be least restrictively detained.
    Accordingly, I find that Mr Toro-Martinez’s detention during the almost 10
    month period from 6 November 2008 to 1 September 2009 was arbitrary in breach of
    article 9 of the ICCPR.

7 Interference with and
protection of the family

  1. It is also claimed that Mr Toro-Martinez’s detention in VIDC
    interfered with his family. Mr Toro-Martinez advises that whilst he was detained
    in VIDC he was separated from his partner (who is now his wife) and his adult
    daughter.

  2. The Commonwealth claims that the time taken to resolve the complex balance
    between Mr Toro-Martinez’s rights regarding his familial relationships
    with Australian citizens on one hand and his serious criminal history on the
    other, was legitimate and justifiable.

  3. In considering whether any interference with Mr Toro-Martinez’s family
    was arbitrary, I must consider whether it was reasonable, and proportionate to
    DIAC’s legitimate aim of ensuring that non-citizens who pose a risk to the
    community are not released into the community.

  4. As a result of his detention in VIDC on 6 November 2008 Mr Toro-Martinez was
    again separated from his partner from whom he had been separated for
    approximately 10 years whilst he was in prison. Mr Toro-Martinez lived with his
    partner in the three months that he was released from VIDC as a result of the Sales 2 decision. The effect of detaining him in VIDC on 6 November 2008
    was to again separate him from his partner with whom he had only recently
    reunited after a long period of separation.

  5. I have found that Mr Toro-Martinez’s second period of detention at
    VIDC for the almost 10 month period from 6 November 2008 until 1 September 2009
    was arbitrary. I have found that it was unreasonable for the Commonwealth to
    take nine months to resolve its concerns about the potential risk posed to the
    community by Mr Toro-Martinez given that it was on notice that Mr Toro-Martinez
    would enter the custody of DIAC in June 2008 and when it had had Mr
    Toro-Martinez’s first period in VIDC (from 8 June 2008 to 24 July 2008) to
    determine how to detain Mr Toro-Martinez in the least restrictive manner.

  6. In these circumstances, I also find that the interference with Mr
    Toro-Martinez’s family occasioned by his detention was
    arbitrary.

8 Findings and
recommendations

8.1 Power to make
recommendations

  1. Where, after conducting an inquiry, the Commission finds that an act or
    practice engaged in by a respondent is inconsistent with or contrary to any
    human right, the Commission is required to serve notice on the respondent
    setting out its findings and reasons for those
    findings.[29] The Commission may
    include in the notice any recommendation for preventing a repetition of the act
    or a continuation of the
    practice.[30]

  2. The Commission may also recommend:

    • the payment of compensation to, or in respect of, a person who has suffered
      loss or damage; and

    • the taking of other action to remedy or reduce the loss or damage suffered
      by a person.[31]

8.2 Consideration of
compensation

  1. There is no judicial guidance dealing with the assessment of recommendations
    for financial compensation for breaches of human rights under the AHRC Act.

  2. However, in considering the assessment of a recommendation for compensation
    under s 35 of the AHRC Act (relating to discrimination matters under Part II,
    Division 4 of the AHRC Act), the Federal Court has indicated that tort
    principles for the assessment of damages should be
    applied.[32]

  3. I am of the view that this is the appropriate approach to take to the
    present matter. For this reason, so far as is possible in the case of a
    recommendation for compensation, the object should be to place the injured party
    in the same position as if the wrong had not
    occurred.[33]

  4. The tort of false imprisonment is a more limited action than an action for
    breach of article 9(1). This is because an action for false imprisonment cannot
    succeed where there is lawful justification for the detention, whereas a breach
    of article 9(1) will be made out where it can be established that the detention
    was arbitrary, irrespective of legality.

  5. Notwithstanding this important distinction, the damages awarded in false
    imprisonment provide an appropriate guide for the award of compensation for a
    breach of article 9(1). This is because the damages that are available in false
    imprisonment matters provide an indication of how the courts have considered it
    appropriate to compensate for loss of liberty.

  6. The principal heads of damage for a tort of this nature are injury to
    liberty (the loss of freedom considered primarily from a non-pecuniary
    standpoint) and injury to feelings (the indignity, mental suffering, disgrace
    and humiliation, with any attendant loss of social
    status).[34]

  7. I note that the following awards of damages have been made for injury to
    liberty and provide a useful reference point in the present case.

  8. In Taylor v Ruddock,[35] the District Court at first instance considered the quantum of general damages
    for the plaintiff’s loss of liberty for two periods of 161 days and 155
    days, during which the plaintiff was in ‘immigration detention’
    under the Migration Act but held in New South Wales prisons.

  9. Although the award of the District Court was ultimately set aside by the
    High Court, it provides a useful indication of the calculation of damages for a
    person being unlawfully detained for a significant period of time.

  10. The Court found that the plaintiff was unlawfully imprisoned for the whole
    of those periods and awarded him $50 000 for the first period of 161 days and
    $60 000 for the second period of 155 days. For a total period of 316 days
    wrongful imprisonment, the Court awarded a total of $110 000.

  11. In awarding Mr Taylor $110 000 the District Court took into account the fact
    that Mr Taylor had a long criminal record and that this was not his first
    experience of a loss of liberty. He was also considered to be a person of low
    repute who would not have felt the disgrace and humiliation experienced by a
    person of good character in similar
    circumstances.[36]

  12. On appeal, the Court of Appeal of New South Wales considered that the award
    was low but in the acceptable
    range.[37] The Court noted that
    ‘as the term of imprisonment extends the effect upon the person falsely
    imprisoned does progressively
    diminish’.[38]

  13. In Goldie v Commonwealth of Australia & Ors (No 2) [39] Mr Goldie was awarded damages
    of $22 000 for false imprisonment being wrongful arrest and detention under the
    Migration Act for four days.

  14. In Spautz v
    Butterworth
    [40] Mr Spautz was
    awarded $75 000 in damages for his wrongful imprisonment as a result of failing
    to pay a fine. Mr Spautz spent 56 days in prison and his damages award reflects
    the length of his incarceration. His time in prison included seven days in
    solitary confinement.

  15. In Australian Human Rights Commission Report
    41[41] I recommended that the
    Commonwealth should pay the complainant $90 000 as compensation for the 90 days
    he was arbitrarily detained in immigration detention.

8.3 Recommendation that
compensation be paid

  1. I have found that on 6 November 2008 rather than being placed in VIDC, Mr
    Toro-Martinez should have been allowed to remain in the community in community
    detention. The failure to place Mr Toro-Martinez in community detention on 6
    November 2008 was inconsistent with his right not to be arbitrarily detained in
    breach of article 9(1) of the ICCPR. It has also interfered with his family in
    breach of articles 17(1) and 23(1) of the ICCPR.

  2. In submissions made on behalf of Mr Toro-Martinez on the issue of
    compensation, it is submitted that because of the breaches of article 17 and 23,
    the appropriate quantum in this case would be higher than the amount that I
    recommended in Australian Human Rights Commission Report
    41.[42]

  3. These submissions state:

    Compensation should be awarded in an
    amount greater than that awarded in El Masri, given the lengthier detention, Mr
    Toro-Martinez’s reformed character, and the additional breaches of
    Articles 17 and 23 of the ICCPR. The interference with Mr Toro-Martinez’s
    family was particularly acute where he had finally been reunited with his then
    fiancé, now wife, having been separated for 10 years, only then to be
    re-detained a mere 3 months later.

  4. DIAC contended that it was not appropriate for me to apply a ‘daily
    rate’ to determine a recommendation for compensation. DIAC noted that in
    common law proceedings, the quantum of damages for matters such as pain and
    suffering is tested on the basis of submissions from both parties on these
    issues.

  5. I consider that the Commonwealth should pay to Mr Toro-Martinez an
    amount of compensation to reflect the loss of liberty caused by his detention at
    VIDC, rather than in community detention, and the consequent interference with
    his family. Had Mr Toro-Martinez been placed in community detention on 6
    November 2008 it is likely that he would have experienced some curtailment of
    his liberty as a result of the imposition of conditions on which he would be
    allowed to reside in the community. I have taken this into account when
    assessing his compensation.

  6. I have also taken into account the fact that Mr Toro-Martinez’s
    detention in VIDC followed directly from a lengthy period of imprisonment within
    the New South Wales Correctional system. In this regard, I note the statement in Ruddock v Taylor, that ‘as the term of imprisonment extends, the
    effect upon the person falsely imprisoned does progressively
    diminish’.[43]

  7. Assessing compensation in such circumstances is difficult and requires a
    degree of judgment. Taking into account the guidance provided by the decisions
    referred to above I consider that payment of compensation in the amount of
    $100 000 is appropriate.

8.4 Apology

  1. In addition to compensation, I consider that it is appropriate that the
    Commonwealth provide a formal written apology to Mr Toro-Martinez for the
    breaches of his human rights. Apologies are important remedies for breaches of
    human rights. They, at least to some extent, alleviate the suffering of those
    who have been
    wronged.[44]

8.5 Policy

  1. I consider that the guidelines relating to the Minister’s residence
    determination power should be amended to provide that unless DIAC is satisfied
    that a person in an immigration detention facility is a flight risk or poses an
    unacceptable risk to the Australian community that cannot be addressed through
    the imposition of conditions on community detention, DIAC should refer all
    persons to the Minister for consideration of making a residence determination.
    DIAC should make the referral as soon as practicable, and in no circumstances
    any later than 90 days, after the individual is placed in an immigration
    detention facility.

  2. I consider that the guidelines should require that a decision by DIAC not to
    refer a person to the Minister for consideration of making a residence
    determination should be a decision that is made after an individualised
    assessment of the person’s circumstances and based on reliable and
    documented evidence. The guidelines should expressly provide that the existence
    of a criminal record is insufficient evidence of itself that an individual poses
    an unacceptable risk to the Australian community.

9 DIAC’s response
to the recommendations

  1. On 29 March 2011 I provided a Notice under s 29(2)(1) of the AHRC Act
    outlining my findings and recommendations in relation to the complaint made by
    Mr Toro-Martinez against the Commonwealth (DIAC).

  2. By letter dated 19 April 2011 the Department of Immigration and Citizenship
    provided the following response to my findings and
    recommendations:

The Department's response on behalf of the Commonwealth of Australia to
the findings and recommendations of the AHRC with regard to Mr
Toro-Martinez

1. That payment of compensation in the amount of $100,000 is
appropriate

While we note your findings, in the Department's view Mr Toro-Martinez has
been and continues to be detained lawfully in accordance with the Migration
Act 1958
(Cth) (Migration Act) and his detention has not been and is not
arbitrary.

Accordingly, the Department advises the Commission that there will be no
action taken with regard to this recommendation.

2. That it is appropriate that the Commonwealth provide a formal written
apology to Mr Toro-Martinez for the breaches of his human rights identified in
the report

The Department disagrees with this recommendation.

While there was a period of time between Mr Toro-Martinez making his request
for community detention in March 2009 and the Minister’s intervention in
September 2009, this is not an unreasonable period of time given the complexity
of the case. There is no obligation to consider a request for community
detention and any residence determinations are made at the discretion of the
Minister who takes a range of considerations into account. There is no formal
application process for community detention.

The Department advises the Commission that there will be no action taken with
regard to this recommendation.

3. That the guidelines to the Minister’s residence determination
power should be amended

The Department notes your recommendations regarding the guidelines for the
Minister’s residence determination power. Your comments will be taken into
account in any future consideration that may be given to amending the section
197AB Ministerial guidelines.

  1. I report accordingly to the Attorney-General.

Catherine Branson
President
Australian Human Rights Commission

May 2011

Appendix 1: Functions of
the Commission

The Commission has specific legislative functions and responsibilities for
the protection and promotion of human rights under the AHRC Act. Part II
Divisions 2 and 3 of the AHRC Act confer functions on the Commission in relation
to human rights. In particular, section 11(1)(f) of the AHRC Act empowers the
Commission to inquire into acts or practices of the Commonwealth that may be
inconsistent with or contrary to the rights set out in the human rights
instruments scheduled to or declared under the AHRC Act.

Section 11(1)(f) of the AHRC Act states:

(1) The functions of the Commission are:

...

(f) to inquire into any act or practice that may be inconsistent with or
contrary to any human right, and:

(i) where the Commission considers it appropriate to do so – to
endeavour, by conciliation, to effect a settlement of the matters that gave rise
to the inquiry; and

(ii) where the Commission is of the opinion that the act or practice is
inconsistent with or contrary to any human right, and the Commission has not
considered it appropriate to endeavour to effect a settlement of the matters
that gave rise to the inquiry or has endeavoured without success to effect such
a settlement – to report to the Minister in relation to the inquiry.

Section 3 of the AHRC Act defines an ‘act’ or
‘practice’ as including an act or practice done by or on behalf of
the Commonwealth or an authority of the Commonwealth.

The Commission performs the functions referred to in section 11(1)(f) of the
AHRC Act upon the AttorneyGeneral’s request, when a complaint is made in
writing or when the Commission regards it desirable to do so (section 20(1) of
the AHRC Act).

In addition, the Commission is obliged to perform all of its functions in
accordance with the principles set out in section 10A of the AHRC Act, namely
with regard for the indivisibility and universality of human rights and the
principle that every person is free and equal in dignity and rights.

The Commission attempts to resolve complaints under the provisions of the
AHRC Act through the process of conciliation. Where conciliation is not
successful or not appropriate and the Commission is of the opinion that an act
or practice constitutes a breach of human rights, the Commission shall not
furnish a report to the Attorney-General until it has given the respondent to
the complaint an opportunity to make written and/or oral submissions in relation
to the complaint (section 27 of the AHRC Act).

If, after the inquiry, the Commission finds a breach of human rights, it must
serve a notice on the person doing the act or engaging in the practice setting
out the findings and the reasons for those findings (section 29(2)(a) of the
AHRC Act). The Commission may make recommendations for preventing a repetition
of the act or practice, the payment of compensation or any other action or
remedy to reduce the loss or damage suffered as a result of the breach of a
person’s human rights (sections 29(2)(b) and (c) of the AHRC Act).

If the Commission finds a breach of human rights and it furnishes a report on
the matter to the AttorneyGeneral, the Commission is to include in the report
particulars of any recommendations made in the notice and details of any actions
that the person is taking as a result of the findings and recommendations of the
Commission (sections 29(2)(d) and (e) of the AHRC Act). The Attorney-General
must table the report in both Houses of Federal Parliament within 15 sitting
days in accordance with section 46 of the AHRC Act.
It should be noted that
the Commission has a discretion to cease inquiry into an act or practice in
certain circumstances (section 20(2) of the AHRC Act), including where the
subject matter of the complaint has already been adequately dealt with by the
Commission (section 20(2)(c)(v) of the AHRC
Act).


[1] [2006] FCA
1807.
[2] [2008] FCAFC
132.
[3] [2006] FCA
1807.
[4] [2008] FCAFC
132.
[5] (1997) 78 FCR
208.
[6] Ibid
[215].
[7]Migration Act
1958
(Cth), s 5.
[8] Communication No 305/1988, UN Doc
CCPR/C/39/D/305/1988.
[9] Ibid
[5.8].
[10] Communication No
560/1993, UN Doc
CCPR/C/59/D/560/1993.
[11] Ibid
[9.2].
[12] Communication No
1442/2005, UN Doc
CCPR/C/97/D/144/2005.
[13] Ibid
[9.3].
[14] (2003) 126 FCR
54.
[15] Ibid
[152].
[16] [2000] 2 NZLR
65.
[17] Ibid [40], [41],
references listed at [41],
[42].
[18] [2001] 3 NZLR
433.
[19] Ibid
[34].
[20]Saadi v United
Kingdom
[2008] ECHR 80,
[67].
[21] Ibid
[69].
[22] M Nowak, UN
Covenant on Civil and Political Rights CCPR Commentary
, (2nd ed,
2005) 518.
[23] Australian Human
Rights Commission, Complaint by Mr Huong Nguyen and Mr Austin Okoye against
the Commonwealth of Australia and GSL (Australia) Pty Ltd
[2007] AusHRC 39,
[80]-[88].
[24] United Nations
Human Rights Committee, General Comment 16 (Thirty-second session, 1988),
Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.6 (2003) 142 (The right to respect of
privacy, family, home and correspondence, and protection of honur and
reputation), [4].
[25] S Joseph,
J Schultz & M Castan, The International Covenant on Civil and Political
Rights: Cases, Materials and Commentary (2004),
482-3.
[26] Communication No.
488/1992 UN Doc
CCPR/C/50/D/488/1992.
[27] Ibid
[8.3]. Whilst this case concerned a breach of article 17(1) in relation to
privacy, these comments would apply equally to an arbitrary interference with
family.
[28] The
Department’s Response on behalf of the Commonwealth of Australia to the
AHRC’s Tentative Views on the case of Mr Alejandro Toro-Martinez, received
by the Commission on 25 October
2010.
[29] AHRC Act s
29(2)(a).
[30] AHRC Act s
29(2)(b).
[31] AHRC Act s
29(2)(c).
[32]Peacock v The
Commonwealth
(2000) 104 FCR 464, 483 (Wilcox
J).
[33] See Hall v A & A
Sheiban Pty Limited
(1989) 20 FCR 217, 239 (Lockhart
J).
[34]Cassell & Co Ltd
v Broome
(1972) AC 1027, 1124; Spautz v Butterworth & Anor (1996)
41 NSWLR 1 (Clarke JA); Vignoli v Sydney Harbour Casino (1999) NSWSC 1113
(22 November 1999), [87].
[35]Taylor v Ruddock (unreported, 18 December 2002, NSW District Court
(Murrell DCJ)).
[36] Ibid,
[140].
[37] [2003] NSWCA 262
[49]-[50].
[38] Ibid,
[49].
[39] [2004] FCA
156.
[40] (1996) 41 NSWLR 1
(Clarke JA).
[41] [2009] AusHRC
41 at para 376.
[42] Ibid.
[43] (2003) 58 NSWLR 269
[49].
[44] D Shelton, Remedies
in International Human Rights Law,
(2000), 151.