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AusHRC 46: Yousefi family v Commonwealth of Australia

2011

Mr Parvis Yousefi, Mrs Mehrnoosh Yousefi and Manoochehr Yousefi v Commonwealth of Australia
(Department of Immigration and Citizenship)

Report into arbitrary detention, the standard of treatment in detention and rights of the child in detention

[2011] AusHRC 46


July 2011

The Hon Robert McClelland
MP
Attorney-General
Parliament House

Canberra ACT 2600

Dear Attorney

I have completed 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 Parvis Yousefi, Mrs Mehrnoosh Yousefi and
Manoochehr Yousefi.

I have found that the acts and practices of the Commonwealth breached
fundamental human rights protected by the International Covenant on Civil and
Political Rights
(ICCPR) and the Convention on the Rights of the
Child
(CRC) as follows:

  • Article 10 of the ICCPR in relation to the forcible removal of
    Manoochehr Yousefi from Woomera Detention Centre to Baxter Detention
    Centre;
  • Articles 7, 9 and 10 of the ICCPR in relation to the failure to
    remove Manoochehr Yousefi from the detention centre environment;
  • Articles 7, 9 and 10 of the ICCPR in relation to the failure to
    remove Mr Parvis Yousefi from the detention centre environment;
  • Articles 9 and 10 of the ICCPR in relation to the failure to
    remove Mrs Mehrnoosh Yousefi from the detention centre environment;
  • Articles 3(1), 3(2), 19(1), 37(a) and 37(c) of the CRC in
    relation to the best interests and protection of Manoochehr Yousefi; and
  • Articles 24(1) and 28(1) of the CRC in relation to access to
    appropriate health care and education of Manoochehr Yousefi.

..........................................................................................................................................................

Australian Human Rights Commission

Level 3 175 Pitt Street, Sydney NSW 2000 GPO Box 5218, Sydney, NSW 1042

Telephone: 02 9284 9600 Facsimile: 02 9284 9611 Website: www.humanrights.gov.au

By letter dated 8 July 2011 the Department of Immigration and Citizenship
provided its response to my findings and recommendations. I have set out
the response of the Department of Immigration and Citizenship in its entirety in
part 10 of my report.

Please find enclosed a copy of my report.

Yours sincerely
Catherine Branson
President
Australian Human Rights Commission


Contents


1 Introduction

  1. This is a report setting out the Commission’s findings and the reasons
    for those findings following an inquiry by the Australian Human Rights
    Commission into a complaint lodged by Mrs Mehrnoosh Yousefi on behalf of
    herself, her husband Mr Parvis Yousefi and her son Manoochehr Yousefi (the
    Yousefi family) that her family’s treatment in detention by the Department
    of Immigration and Citizenship (the Department) involved acts or practices
    inconsistent with or contrary to human rights.

2 Summary

2.1 Summary of
findings

  1. I have found that the human rights of Mr Parvis Yousefi,
    Mrs Mehrnoosh Yousefi and Manoochehr Yousefi were breached by the actions
    of the Department of Immigration and Citizenship (formerly known as the
    Department of Immigration and Multicultural and Indigenous
    Affairs).[1]
(a) Forcible
transfer to Baxter Detention Centre
  1. In relation to the forcible transfer of the Yousefi family from Woomera
    Detention Centre to Baxter Detention Centre, I find that the forcible
    removal violated article 10 of the International Covenant on Civil and
    Political Rights
    (ICCPR) in relation to Manoochehr
    Yousefi.
(b) Failure to remove the
Yousefi family from the detention centre environment
  1. In relation to the failure to remove the Yousefi family from detention,
    I find both the:

    1. practice of insisting the father of a family remain in an immigration
      detention centre; and

    2. act of failing to remove the Yousefi family from detention in an immigration
      detention centre, once the Commonwealth was aware of the deteriorating mental
      health of the family;

    were inconsistent with articles 7,
    9 and 10 of the ICCPR in relation to Mr Yousefi and Manoochehr Yousefi and
    were inconsistent with articles 9 and 10 of the ICCPR in relation to
    Mrs Yousefi.

  2. As a consequence, Mr Yousefi was unjustifiably detained in a detention
    centre from 24 August 2001 until 15 June 2004 and Mrs Yousefi and
    Manoochehr were unjustifiably detained in a detention centre from 25 May 2002
    until 15 June 2004.

  3. I further find that, because of the failure to remove the Yousefi
    family from detention:

    1. at various times between 2001 and 2004 the best interests of Manoochehr
      Yousefi, as a child, were not a primary consideration in all actions concerning
      him, contrary to article 3(1) of the Convention on the Rights of the
      Child
      (CRC);

    2. the Commonwealth failed to take all administrative measures to ensure
      Manoochehr Yousefi such protection and care as was necessary for his wellbeing,
      taking into account the rights and duties of his parents (CRC, article
      3(2));

    1. Manoochehr Yousefi was denied the right to be protected from all forms of
      physical or mental violence (CRC, article 19(1)); and

    1. the Commonwealth’s failure to implement the repeated recommendations
      by mental health professionals that Manoochehr Yousefi be removed from the
      detention environment with his parents amounted to:

      1. cruel, inhuman and degrading treatment of him in detention
        (CRC, article 37(a)); and

      2. a failure to treat him with humanity and respect for his inherent dignity
        (CRC, article
        37(c)).
(c) Manoochehr’s
inability to access appropriate health care and education
  1. I further find that at various times between 2001 and 2004 Manoochehr
    Yousefi was denied the right to:

    1. enjoy the highest attainable standard of physical and mental health (CRC,
      article 24(1)); and

    2. an appropriate education on the basis of equal opportunity
      (CRC, article
      28(1)).

2.2 Summary of
recommendations

  1. In light of my findings regarding the acts and practices of the Commonwealth
    I make the following recommendations:

    1. That the Commonwealth provide a formal written apology to Mr Parvis
      Yousefi, Mrs Mehrnoosh Yousefi and Manoochehr Yousefi for the breaches of
      their human rights identified in this report.

    2. In relation to Manoochehr Yousefi, that the respondent pay financial
      compensation in the amount of $1 025 000.

    3. In relation to Mrs Mehrnoosh Yousefi, that the respondent pay financial
      compensation in the amount of $675 000.

    4. Legislation should be enacted to set out minimum standards for conditions
      and treatment of people in all of Australia’s immigration detention
      facilities, including those located in excised offshore places. The minimum
      standards should be based on relevant international human rights standards,
      should be enforceable and should make provision for effective
      remedies.[2]

    5. An independent body should be charged with the function of monitoring the
      provision of health and mental health services in immigration detention. The
      Australian Government should ensure that adequate resources are allocated to
      that body to fulfil this function.

    6. The Department should implement the Residence Determination Guidelines,
      under which people with significant physical or mental health concerns, people
      who may have experienced torture or trauma and people whose cases will take a
      considerable period to substantively resolve are to be referred to the Minister
      as soon as practicable for consideration of a Community Detention
      placement.[3]

    7. The Department should implement the Residence Determination Guidelines,
      which require that all children and their accompanying family members or
      guardians be referred to the Minister for consideration of a Community Detention
      placement as soon as they are
      detained.[4]

    8. The Migration Act 1958 (Cth) (Migration Act) and other relevant
      Commonwealth laws should be amended as a matter of urgency to incorporate the
      following minimum requirements:

      1. a presumption against the detention of children for immigration
        purposes;

      2. a proscription on children being detained in Immigration Detention
        Centres;

      3. that a court or independent tribunal should assess whether there is a need
        to detain children for immigration purposes within 72 hours of any initial
        detention;

      4. that there should be prompt and periodic review by a court of the continuing
        detention of any child for immigration purposes;

      5. if a child must be taken into immigration detention, as soon as possible
        after being detained they should be placed in Community Detention under a
        Residence Determination with any accompanying family members or guardians;

      6. prescribed minimum standards of treatment for children in immigration
        detention consistent with the ICCPR, CRC and other relevant international human
        rights standards such as the United Nations Rules for the Protection of
        Juveniles Deprived of their Liberty; and

      7. all courts and independent tribunals should be guided by the principle that
        the detention of children must be a measure of last resort and for the shortest
        appropriate period of time.

3 Outline of the
complaint

3.1 Background

  1. On 2 September 2002 and 8 January 2003 the Commission received a complaint
    from Mrs Yousefi about her family’s treatment in detention by the
    Department. Mrs Yousefi provided further letters dated 27 April 2003 and
    another undated letter in 2003 which reiterated her initial complaint.

  2. Mrs Yousefi’s complaint alleges three human rights breaches,
    namely, that:

    1. the alleged forcible transfer to Baxter Detention Centre violated articles 7
      and 10 of the ICCPR for each member of the Yousefi family (first breach);

    2. the failure to remove the Yousefi family from the detention centre
      environment in the particular circumstances of this case violated articles 7, 9
      and 10 of the ICCPR for each member of the Yousefi family and articles 3, 19 and
      37 of the CRC for Manoochehr (second breach);

    3. Manoochehr’s inability to access appropriate medical care and
      education while in detention violated articles 24 and 28 of the CRC for
      Manoochehr (third breach).

  3. The complaint was investigated pursuant to section 11(1)(f) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).
  4. The Department was invited to respond to the letters of complaint on
    13 December 2002 and 27 March 2003. The Department provided two written
    responses to the complaint by letters dated 21 February 2003 and 13 June
    2003.

  5. The complaint by Mrs Yousefi was one of the cases investigated as part
    of the Commission’s national inquiry into children in immigration
    detention, finalised in 2004.[5]

  6. On 19 August 2005, the Department provided further information in relation
    to the complaint and conciliation of the matter was suspended pending the
    resolution of Mr Yousefi’s common law claim, lodged 20 December 2005
    and finalized on 5 December 2007.

  7. Once the common law claim by Mr Yousefi was finalised the Commission
    attempted to conciliate a settlement of the complaint, holding conciliation
    conferences in September 2008 and April 2009. Both attempts at conciliation
    failed.

  8. Accordingly, in May 2009 the matter was referred to me for consideration of
    reporting to the Attorney-General.

  9. On 30 November 2009 I completed a tentative view which outlined my
    preliminary findings in relation to the complaint (Tentative View).

  10. During the period from 30 November 2009 to 12 April 2011 I sought and
    was provided with submissions and additional evidence from both parties in
    response to my Tentative View and to assist me to make final findings.

  11. On 13 April 2011 I forwarded an Amended Tentative View to the parties
    in relation to the transfer of the Yousefi family to Baxter Detention Centre and
    invited the Commonwealth to make submissions.

  12. On 2 May 2011 the Commonwealth advised that it did not wish to make
    submissions in relation to the Amended Tentative
    View.

3.2 Common law claim

  1. At the outset I note that Mr Parvis Yousefi, Mrs Mehrnoosh
    Yousefi and Manoochehr Yousefi (the Complainants) have each brought a common law
    claim against the Department. I note that Mr Yousefi’s claim has
    been settled for an undisclosed sum but that the claims of Manoochehr Yousefi
    and Mrs Yousefi are ongoing.

  2. I have decided not to discontinue this inquiry, or any part of it,
    because of the fact of the common law claims though I have taken the fact
    of the settlement of Mr Yousefi’s claim into account in my
    recommendations.

  3. In reaching my decision not to discontinue this inquiry, or any part of it,
    because of the common law claims, I have taken into account that the
    function of inquiring into an act or practice that may be inconsistent with or
    contrary to any human right is different from, and includes considerations
    irrelevant to, the judicial function of determining whether the Commonwealth has
    acted consistently with Australian law. My function in investigating complaints
    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 as defined in s 3 of the AHRC Act. Complaints
    of breaches of human rights are, by their nature, different from common law
    claims.

  4. Secondly, I have taken into account that Mrs Yousefi’s
    complaint is about the way her family was treated by the Commonwealth. For this
    reason, I must consider the impact of the treatment of each member of the
    family with regard to its impact on all other family members; for the same
    reason it would not be appropriate for me to disregard the treatment of any
    family member because of its potential impact on all other family
    members.

3.3 Findings of fact in
relation to the circumstances of complaint

  1. I consider the following statements about the circumstances which have
    given rise to the complaint to be uncontentious:

    1. The Yousefi family are Mr Parvis Yousefi, Mrs Mehrnoosh Yousefi
      and their son, Manoochehr Yousefi.

    2. Manoochehr Yousefi was 10 years old when he was first detained.

    3. The Yousefi family are Iranian nationals who were kept in immigration
      detention for approximately 3 years.

    4. The family was first detained in the Woomera Immigration Reception and
      Processing Centre (Woomera Detention Centre) on 30 April 2001 after arriving in
      Australia by boat on 20 April 2001.

    5. In July 2001, the members of the Yousefi family made applications for
      protection visas. The Minister refused to grant the Yousefi family protection
      visas in September 2001.

    6. On 24 August 2001, Mrs Yousefi and Manoochehr Yousefi were placed in
      the Woomera Residential Housing Project. Mr Yousefi remained in detention
      at Woomera Detention Centre during this time.

    7. In May 2002, the Refugee Review Tribunal (RRT) affirmed the
      Department’s decision not to grant the Yousefi family protection visas.

    8. In May 2002, Family and Youth
      Services[6] was notified of the
      Yousefi family after Mr Yousefi attempted to hang himself twice and
      Manoochehr threatened self-harm.

    9. On the recommendation of Family and Youth Services that it was preferable to
      keep the family together, Mrs Yousefi and Manoochehr Yousefi returned to
      the Woomera Detention Centre after about 9 months of separation from
      Mr Yousefi on 25 May 2002.

    10. Mr Yousefi was admitted to Glenside Hospital with major depression and
      psychotic symptoms from 27 June to 4 July 2002.

    11. The Yousefi family’s appeal to the Federal Court from the RRT’s
      decision was unsuccessful. This Federal Court decision was handed down in August
      2002 and the family did not appeal the decision to the Full Court of the Federal
      Court.

    12. On 2 January 2003, the family was transferred from Woomera Detention Centre
      to the Baxter Immigration Detention Centre.

    13. Each member of the Yousefi family was granted a temporary protection visa on
      15 June 2004 and released from detention that day.

4 The relevant legal framework

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

  2. Pursuant to s 8(6) of the AHRC Act this inquiry has been conducted by the
    President of the Commission.

  3. For the purposes of s 11, ‘human rights’ means the rights set
    out in the ICCPR and the CRC.

  4. The phrase ‘inconsistent with or contrary to any human right’ is
    not defined or otherwise explained in the Act.

  5. A summary of the human rights in the ICCPR and CRC relevant to this inquiry
    is appended in Appendix 1 to this report. A summary of the jurisprudence in
    relation to those rights is appended in Appendix 2 to this
    report.

4.1 ‘Human rights’
relevant to the complaint

  1. The Complainants allege that:

    1. the forcible transfer of the family from Woomera Detention Centre to Baxter
      Detention Centre violated articles 7 and 10 of the ICCPR for each member of the
      Yousefi family;

    2. the failure to remove the Yousefi family from the detention centre
      environment in the particular circumstances of this case violated articles 7, 9
      and 10 of the ICCPR for each member of the Yousefi family and, additionally,
      articles 3, 19 and 37 of the CRC for Manoochehr Yousefi;
      and

    3. Manoochehr Yousefi’s inability to access appropriate medical care and
      education while in detention violated articles 24 and 28 of the
      CRC.

4.2 The Commission can
inquire into acts or practices done by or on behalf of the
Commonwealth

  1. The AHRC Act relevantly defines ‘act’ and ‘practice’
    respectively to mean an act done, or practice engaged in, ‘by or on behalf
    of the Commonwealth’ or under an enactment. In the AHRC Act a reference
    to, or to the doing of, an act includes a reference to a refusal or failure to
    do an act.[7]

  2. 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 agents.

  3. I note at the outset that neither:

    1. the decision to detain a person where required under s 189 of the Migration
      Act; nor

    2. his or her continuing immigration detention until either a visa is granted
      or he or she is removed under s 196 of the Migration
      Act;

    is an ‘act’ or ‘practice’ for
    the purposes of the AHRC Act.[8]

  1. However, all ‘discretionary’ acts of the Commonwealth are
    ‘acts’ or ‘practices’ within the meaning of the AHRC
    Act. Accordingly, in so far as the complaint relates to discretionary decisions
    made by the Commonwealth, its officers or agents, about the accommodation and
    treatment of the Yousefi family, it concerns acts or practices done by or on
    behalf of the Commonwealth.

  2. My findings below are therefore confined to the discretionary acts or
    practices of the Commonwealth.

4.3 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 been guided by the well-known
    statement of Dixon J in Briginshaw v
    Briginshaw,
    [9] as explained by the
    High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty
    Ltd
    .[10]

  2. I have had regard to the seriousness of each allegation made, the
    inherent unlikelihood of an occurrence of the kind alleged and the gravity of
    the consequences that would flow from any particular finding.

  3. I have taken particular care to assess the whole of the evidence and
    all submissions provided by the parties before reaching a final determination of
    the issues in dispute in this matter.

5 Alleged breach of human rights in relation to the
forcible transfer to Baxter Detention
Centre

5.1 Alleged act or
practice

  1. Mrs Yousefi alleges that on 2 January 2003, the Yousefi family was
    forcibly transferred from the Woomera Detention Centre to the Baxter Detention
    Centre without their consent. She states that:

    Approximately 30
    guard officers in their uniforms rushed into my family’s bedroom and asked
    us if we were ready to go to Baxter Camp. My response was negative. I could
    not realize anything further except the cry of my 12-year old child and my
    husband who was beaten under the feet of the officers.

  2. In particular, she claims that she ‘was dragged on the ground,’
    Manoochehr ‘got a hard blow on the head’, ‘[her] and
    [her] husband’s bodies were quite bruised’ and ‘during the
    whole trip [her] husband’s hands were tied up’. She also claimed
    that the officers were laughing at them.

  3. The decisions to use force and if so, how much force, and each actual use of
    force, are discretionary ‘acts’ for the purposes of the AHRC
    Act.

  4. Further, given the Department had contracted with Australasian Correctional
    Management (ACM) at the relevant time to provide security and other services to
    its detention facilities, the acts of the ACM officers are ‘acts’
    performed on behalf of the Department and therefore fall within the
    Commission’s inquiry
    jurisdiction.

5.2 Response to the
complaint

  1. In its response to these allegations, the Department claims that it was
    ‘aware that the Yousefi family preferred to remain in the Woomera
    Detention Centre, but a decision was made that the needs of the family could be
    better met at the Baxter detention centre’.

  2. This decision appears to have largely been a result of the Department
    deeming Woomera Detention Centre unsuitable for family accommodation due to the
    destruction of large parts of the compounds during the disturbances and fires
    over the Christmas 2002 period.

  3. The Department also claims that when told of the transfer, Mr and
    Mrs Yousefi became extremely agitated and refused to comply with the
    requests to pack their belongings. The ACM officers then deemed it necessary to
    assist the Yousefi family pack their belongings to achieve the objective of the
    operation.

  4. As a result, ‘Mrs Yousefi ran at the officers waving her arms and
    screaming and; Mr Yousefi commenced a physical attack on the ACM officers
    present’. The Department states that this necessitated the physical
    restraining of both Mr and Mrs Yousefi and that Mr Yousefi
    produced a screwdriver that he had secreted on his person.

  5. The Department states that Mr Yousefi was placed in flexi-cuffs to
    protect the officers participating in the relocation operation and to prevent
    Mr Yousefi from self-harming. The Department states that Mr Yousefi
    remained in the flexi-cuffs for about 45 minutes.

  6. The Department claims that Mrs Yousefi did not accuse the ACM officers
    of assaulting her or her son when she spoke to Annabelle O’Brien,
    Department Manager, Woomera Detention Centre, while waiting on the bus. The
    Department states that while Annabelle O’Brien did not actually witness
    the incident, she claims to have ‘understood that Mrs Yousefi had
    fallen to the ground sustaining a graze on her
    foot’.

5.3 Relevant human
rights

  1. Mrs Yousefi’s complaint about her family’s transfer to the
    Baxter Detention Centre raises for consideration the application of article 7
    (‘[n]o one shall be subjected to torture or to cruel, inhumane or
    degrading treatment or punishment’) and article 10 (‘[a]ll persons
    deprived of their liberty shall be treated with humanity and with respect for
    the inherent dignity of the human person’) of the ICCPR.

  2. In the case of a detained person, there is an overlap between article 7 and
    article 10(1) in that inhuman or degrading treatment or punishment under article
    7 will also constitute a failure to treat that person with humanity and respect
    for the inherent dignity of the human person under article 10. The United
    Nations Human Rights Committee (UNHRC) has indicated that the threshold for
    establishing a breach of article 7 is higher than the threshold for establishing
    a breach of
    article 10.[11]

  3. The assessment of whether the treatment of a person is inconsistent with
    articles 7 or 10 depends on all the circumstances of the case, such as the
    duration and manner of the treatment, its physical or mental effects as well as
    the sex, age and state of health of the victim. Accordingly, the assessment of
    whether the treatment is inconsistent with articles 7 or 10 of the ICCPR is in
    part a subjective evaluation. Factors such as the victim’s age and mental
    health can aggravate the effect of certain treatment so as to bring that
    treatment within articles 7 or
    10.[12]

  4. In relation to article 10(1) the Commission must consider whether the
    decision to use force and whether the degree of force used was inconsistent with
    the right of a detained person to be treated with humanity and respect for the
    inherent dignity of the human person.

  5. The UNHRC has indicated that compliance with the Standard Minimum Rules for
    the Treatment of Prisoners (the Standard Minimum
    Rules)[13] and the Body of
    Principles for the Protection of all Persons under any form of detention (Body
    of Principles)[14] is the minimum
    requirement for compliance with the obligation imposed under article 10(1) that
    detained people be treated
    humanely.[15]

  6. Standard Minimum Rule 54(1) describes the circumstances in which force may
    be used against detainees as follows:

    Officers of the institutions
    shall not, in their relations with the prisoners, use force except in
    self-defence or in cases of attempted escape, or active or passive physical
    resistance to an order based on law or regulations. Officers who have recourse
    must use no more than strictly necessary and must report the incident
    immediately to the director of the institution.

5.4 Was the degree of force used strictly
necessary in the circumstances?

  1. It is not in dispute that the Complainants were transferred from the Woomera
    Detention Centre to the Baxter Detention Centre and that they did not consent to
    this transfer. What is relevant for the purposes of the Commission’s
    inquiry is whether the force used to effect the transfer was lawful and no more
    than strictly necessary in the circumstances.
(a) Was the transfer
lawful?
  1. Clearly the need to move detainees from one place of detention to another
    may arise out of operational necessity. The power to move a detainee from one
    immigration detention centre to another immigration detention centre can be
    implied from the operation of s 189 and the scope of the definition of
    ‘immigration detention’ set out in s 5 of the Migration Act.

  2. Section 189 of the Migration Act requires officers to ‘detain’
    persons whom they know or reasonably suspect to be unlawful non-citizens.
    Section 5 of the Migration Act defines ‘detain’ to
    mean:

    (a) take into immigration detention; or

    (b) keep, or cause to be kept, in immigration detention;

    and includes taking such action and using such force as are reasonably
    necessary to do so.

  3. Accordingly, the order to the Yousefi family to pack their belongings and
    board a bus for transportation to the Baxter Detention Centre can be fairly
    characterised as an ‘order based on
    law’.
(b) Was the force used to
effect the transfer lawful and no more than strictly necessary in the
circumstances?
  1. The medical reports prepared shortly after the Yousefi family arrived in the
    Baxter Detention Centre establish that the Yousefi family members each sustained
    injuries during the transfer.

  2. Mrs Yousefi had slight abrasions to both her feet and claims to have
    had pain in her right arm.

  3. Mr Yousefi had superficial marks to his forehead and face, five
    superficial lacerations to stomach area, superficial marks to wrist area and
    some skin off his toes. It was noted that an initial examination suggested that
    these injuries were sustained from the flexi-cuffs during the transfer
    operation.

  4. Manoochehr had a slight lump to the right side of his head and complained of
    pain to his face and wrists. He claimed that he sustained the lump on his head
    from being ‘roughly’ handled by ACM officers during the transfer.

  5. The Department provided video footage of the transfer of detainees,
    including the Complainants to the Baxter Detention Centre. As I noted in my
    Tentative View, the video does not appear to show everything that happened
    before, during and after the alleged incident and cannot be said to be a
    complete record. In particular, I note that the video camera could not be
    pointed at all of the family members all of the time and does not cover what
    occurred after the family were removed from their donga.

  6. Significantly, the video does not completely support either version of
    events. It does not show:

    1. Mrs Yousefi running at the officers ‘waving her arms and
      screaming’;

    2. Mr Yousefi physically attacking the officers
      present;

    3. Mrs Yousefi being dragged along the ground; or

    4. Manoochehr being struck by an officer.

  7. The footage depicts a threatening and distressing scene. The video does show
    that Mr Yousefi was placed in flexi-cuffs and that both Mrs Yousefi
    and Manoochehr were forcibly removed from their donga after some struggling from
    both Mr and Mrs Yousefi. It also shows that, while ACM officers
    restrained Mr Yousefi, they retrieved a screwdriver.

  8. I have noted and accept the submission made by the Complainants that
    there was:

    a large number of security officers present ... These
    security personnel are physically large, and were equipped with riot gear
    including helmets, shields, batons and protective clothing ... The removal from
    the hut of one child and two physically small and otherwise defenceless adults
    involved a disproportionate number of security personnel, and can only have been
    grossly intimidating ...

  9. However, I also acknowledge that not all of the security personnel
    entered the donga and that those who did first removed some of their protective
    gear.

  10. The Complainants also submitted that the allegation of physical assault is
    not inconsistent with the ‘scene set by the video’ and the briefing
    instruction ‘I don’t want to see any excessive force used, any
    sort of intimidation behaviour’. I do not place significant weight on
    these submissions.

5.5 Findings in the
Tentative View

  1. In my Tentative View I stated that:

    [66] What is relevant
    for the purposes of the Commission’s inquiry is whether the force used to
    effect the transfer was lawful and no more than reasonably necessary in the
    circumstances ...

    [85] I appreciate that decisions made about the use of force can be very
    difficult ones. They are often made quickly, at times of high stress and require
    a careful balancing between respecting the dignity of the individuals involved,
    self-defence and preventing self-harm.

    While it seems that the nature of the incident left each of the Yousefi
    family members with some form of bruising or injury, in my Tentative View, there
    is insufficient evidence to conclude that the ACM Officers used more force than
    was necessary.

    In particular, it appears that the use of flexi-cuffs was in response to the
    finding of a screwdriver on Mr Yousefi and I am not presently
    satisfied that the use of flexi-cuffs was disproportionate in the
    circumstances.

    Accordingly, I am of the Tentative View that there is insufficient
    evidence to establish that the Yousefi family’s transfer to the Baxter
    detention centre breached either Article 7 or Article 10 of the ICCPR for any
    member of the Yousefi family.

    However, I accept that the incident caused the Yousefi family,
    particularly Mrs Yousefi, great
    distress.[16] It appears that the
    family’s transfer to the Baxter Detention Centre could have been carried
    out in a more sensitive manner given that the Department knew about the Yousefi
    family’s severe mental health problems and their fear of leaving
    Woomera.[17]

5.6 Submissions in response to this finding in
the Tentative View

  1. On 19 February 2010, the Department advised that it did:

    not
    wish to make any substantive comments in relation to the Complainants
    submissions in respect of the video of the removal of the Complainants from
    Woomera Detention Centre to Baxter Detention Centre on 2 January 2003. The
    Respondent to the complaint does however agree with the Tentative Views of the
    President expressed at paragraphs 65–89 of the Tentative View.

  2. On 30 March 2010 the Complainants made further submissions in relation to
    the forcible transfer to the Baxter Detention Centre as follows:

    It
    is submitted that the forcible transfer did indeed breach Article 7 and Article
    10 of the ICCPR. The circumstances of the removal involved the overbearing
    exercise of force albeit some of it not physical. The very presence of a large
    number of riot police to remove three effectively defenceless individuals could
    not, it is submitted, be regarded as treating detained people humanely as is
    required by Article 10 and interpreted by the UN Human Rights Committee.

    Bearing in mind the UN Standard Minimum Rules, for the Treatment of
    Prisoners, Rule 54(1) as referred to in paragraph 64 of the President’s
    Tentative Views and that the family did not consent to the transfer, officers
    who have recourse to force “must use no more than is strictly
    necessary
    ...”.

    Although this rule is in relation to prisoners, the Yousefi family were only
    detainees, but were subjected to a large number of staff entering what was their
    “home” fully dressed in riot gear with protective padding.

    It is submitted that this overuse of force by the presence and by the number
    of riot police amounted to a breach of Article 10 of the ICCPR as the family
    could not be regarded as being treated with humanity and with respect for the
    inherent dignity of the human person in these circumstances. Further, Article 7
    is breached as it is submitted that the actions were both inhumane and degrading
    treating (sic).

  3. On 10 November 2010 I wrote to the Department in the following
    terms:

    The Standard Minimum Rules (and article 10 of the ICCPR) only
    allow the use of force in self-defence or in cases of attempted escape, or
    active or passive physical resistance to an order based on law or
    regulations.

    Upon further consideration of the evidence, it appears that Mr Yousefi
    actively resisted the transfer, Mrs Yousefi possibly actively – but
    at least passively – resisted the transfer but there is no evidence that
    Manoochehr resisted the transfer.

    To assist the President in reaching a concluded view as to whether the force
    used to effect the removal of Manoochehr was strictly necessary or permissible
    please advise, in relation to the circumstances of the transfer:

    • What, if any, specific regard was had to Manoochehr’s age and
      documented history of psychological stress as at the date of the transfer;
    • Why was it considered necessary for two adult riot police to physically
      restrain and remove Manoochehr from the donga;
    • Whether consideration was given to having a translator and psychologist (or
      other professional mental health worker who was familiar with the Yousefis)
      present at the time of the transfer to facilitate the transfer.
  4. On 24 November 2010 the Department advised that, having regard to the common
    law proceedings commenced by Manoochehr Yousefi on 26 March 2010 ‘it
    would be inappropriate against this background to provide a considered response
    to the issues raised by the Commission...’.

  5. On 13 April 2011 I provided an Amended Tentative View to the parties
    which contained the findings set out in section 5.7 below. On 2 May 2011 the
    Commonwealth advised that it did not wish to make submissions in relation to the
    Amended Tentative View.

5.7 Findings
in relation to the forcible transfer to Baxter Detention Centre

  1. In assessing whether the officers used more force than was strictly
    necessary to effect the transfer of the Yousefi family, I find that the
    decision to use force, and the amount of force used, must be considered in the
    context of the respective age and mental conditions of the Complainants.

  2. As indicated in my Tentative View, I appreciate that decisions made
    about the use of force can be very difficult ones. They are often made quickly,
    at times of high stress and require a careful balancing between respecting the
    dignity of the individuals involved, self-defence and preventing self-harm.

  3. In relation to Mr and Mrs Yousefi, I find that they both
    struggled with officers attempting to effect the transfer and that officers
    located a screwdriver on Mr Yousefi. In particular, it appears that the use
    of flexi-cuffs on Mr Yousefi was in response to finding a screwdriver
    secreted on his person. Although I acknowledge the transfer was very
    distressing and note that the family’s transfer to the Baxter Detention
    Centre could have been carried out in a more sensitive manner given that the
    Department knew about the Yousefi family’s severe mental health problems
    and their fear of leaving Woomera, I am not satisfied that the use of force
    by the officers was more than strictly necessary in the circumstances or reached
    the requisite level of severity to constitute a breach of articles 7 or 10(1) of
    the ICCPR.

  4. In relation to Manoochehr Yousefi, I find that he did not struggle with
    officers. I find that the use of force against Manoochehr, then 12 years
    old, was more than strictly necessary in the circumstances and, accordingly,
    constituted a breach of article 10(1) of the ICCPR.

6 Alleged breach of human rights in relation to the
failure to remove the Yousefi family from the detention centre environment

6.1 Alleged acts or
practices

  1. Mrs Yousefi alleges that the failure to remove the Yousefi family from
    the detention centre environment in the particular circumstances of this case
    violated articles 7, 9 and 10 of the ICCPR for each member of the Yousefi family
    and, additionally, articles 3, 19 and 37 of the CRC for Manoochehr.

  2. This aspect of the complaint can be broken into two acts or
    practices:

    1. the practice of requiring at least the father of a family to be detained in
      an immigration detention centre; and

    2. the failure to act to remove the family from immigration detention
      centres.
(a) The practice of
requiring at least the father of a family to be detained in an immigration
detention centre
  1. While s 196 of the Migration Act requires the Department to keep an unlawful
    non-citizen in ‘immigration detention’ until they are removed,
    deported or granted a visa, s 5 of the Migration Act defines ‘immigration
    detention’ to include an alternate place approved in writing by the
    Minister.

  2. Accordingly, the operation of s 189 and s 196 of the Migration Act does not
    require the Department to detain unlawful non-citizens in immigration detention
    centres.

  3. It was the Department’s practice at the time to retain fathers of
    families in detention centres. However, in this particular case, there is no
    evidence that any member of the Yousefi family presented any security or other
    risks to the community nor posed any threat of absconding justifying detention
    in an immigration detention centre rather than in residential housing.

  4. However, only Mrs Yousefi and Manoochehr Yousefi were permitted to
    enter the residential housing project on 24 August 2001. Further, when
    Manoochehr and Mr Yousefi’s mental health deteriorated, on the advice
    of Family and Youth Services that the family should be kept together,
    Mrs Yousefi and Manoochehr were brought back to the immigration detention
    centre.

  5. It was open to the Commonwealth to approve an alternate place of detention
    for the Yousefi family in the community by at least the date that
    Mrs Yousefi and Manoochehr entered the residential housing project on 24
    August 2001. However, the Department’s practice of requiring the father of
    the family to remain in an immigration detention centre precluded serious
    consideration being given to approving an alternate place of detention for all
    members of the Yousefi family.

  6. I find that the Department’s practice of retaining unlawful
    non-citizens in detention centres where another place could have been approved
    by the Minister is a discretionary practice that falls within the
    Commission’s inquiry
    jurisdiction.

(b) The failure to act
to remove the family from immigration detention centres
  1. Section 3(3) of the AHRC Act defines an ‘act’ to include the
    refusal or failure to do an act and consistent with the Commission’s views
    in Badraie v Commonwealth (Department of Immigration and Multicultural and
    Indigenous Affairs),
    [18] the
    scope of the Commission’s jurisdiction is sufficiently broad to cover
    failures or refusals to act, even where a decision-maker is under no statutory
    duty to exercise a particular power or function.

  2. While s 196 of the Migration Act requires the Department to keep an unlawful
    non-citizen in ‘immigration detention’ until they are removed,
    deported or granted a visa, s 5 of the Migration Act defines ‘immigration
    detention’ to include an alternate place approved in writing by the
    Minister. Accordingly, it cannot be said that the operation of s 189 and s 196
    of the Migration Act required the Department to detain unlawful non-citizens in
    immigration detention centres.

  3. It appears that the Minister had at least two courses of action reasonably
    open to him that would have enabled the Commonwealth to remove the Yousefi
    family from the detention centre environment:

    1. under s 417 of the Migration Act, the Minister could have substituted
      a more favourable decision than that of the RRT if the Minister thought it
      was in the public interest to do so; and

    2. under s 5 of the Migration Act, the Minister could have approved an
      alternate place of detention in writing.

(i) Section
417 Migration Act

  1. As indicated in the Tentative View the discretion in s 417 of the
    Migration Act was only available to the Minister in this case after the RRT
    handed down its decision in February 2002.

  2. As discussed in the case of Secretary, Department of Defence v HREOC,
    Burgess & Ors,
    [19] for the
    exercise or failure to exercise a statutory discretion to constitute an
    ‘act’ under the AHRC Act, it must be lawfully open to the Minister
    to exercise the discretion in the circumstances of the case. The legal scope of
    the discretion must be construed with reference to the statutory context in
    which it appears.[20]

  3. I have considered the Migration Series Instruction Guidelines (MSI) on
    Ministerial Powers under ss 345, 351, 391, 417, 454 and 501J of the Migration
    Act which I note are ‘instructive but not determinative’ of the
    legal scope of discretion under s 417 of the Migration Act. Part 4 of the
    Guidelines states that:

    The public interest may be served through
    the Australian Government responding with care and compassion where an
    individual’s situation involves unique or exceptional circumstances. This
    will depend on various factors, which must be assessed by reference to the
    circumstances of the particular case.

  4. ‘Unique or exceptional circumstances’ are defined to
    include:

    1. circumstances that may bring Australia’s obligations under the CRC or
      the ICCPR into consideration;

    2. circumstances that the legislation does not
      anticipate;

    3. clearly unintended consequences of legislation;

    4. circumstances where application of relevant legislation leads to unfair or
      unreasonable results in a particular case; and

    5. compassionate circumstances regarding the age and/or health and/or
      psychological state of the person.

  5. It would appear open to the Minister to exercise this ‘public
    interest’ discretion to intervene in special cases to avoid the
    Commonwealth acting in a way that breaches its international human rights
    obligations.

  6. The discretion in s 417 of the Migration Act might also be available in
    extreme or unforeseen circumstances such as medical or other
    emergencies.

(ii) Section 5 of the Migration Act

  1. As also indicated in the Tentative View, the discretion the Minister has
    under s 5 of the Migration Act to approve an alternate place of detention
    could have been exercised at any time.

(iii) Section 73 of the
Migration Act

  1. I also confirm my Tentative View that the Commonwealth additionally had
    the power to grant an eligible non-citizen a bridging visa under s 73 of the
    Migration Act. This power could only have been exercised in this case if each
    member of the Yousefi family satisfied the conditions for the grant of one of
    the specific bridging visas defined in Regulation 2.20 of the Migration
    Regulations 1994
    (Cth) (Migration Regulations).

  2. Conditions for the grant of a visa under Regulation 2.20(9)
    include:

    1. the non-citizen’s application for a visa decision is not finally
      determined;

    2. there is a special need based on health in respect of which a medical
      specialist appointed by Immigration has certified that the non-citizen cannot
      properly be cared for in a detention environment; and

    3. the Minister is satisfied that adequate arrangements have been made for the
      support of the non-citizen in the community.

  3. It appears that the Yousefi family’s visa application was finally
    determined in August 2002. Therefore, the grant of a bridging visa was only an
    option prior to August 2002. The first report unequivocally recommending that
    the Yousefi family be removed from the detention centre environment was dated 23
    July 2002. There is no evidence that any arrangements for the Yousefi
    family’s support in the community had been made prior to August 2002.

  4. It appears that it was open to the Minister to grant a bridging visa to
    Manoochehr under Regulation 2.20(5) or (7). However, the conditions for the
    grant of a bridging visa under both Regulation 2.20(5) and 2.20(7) may have
    required that Manoochehr be separated from his parents.

  5. The advice of several mental health professionals was that it was not in
    Manoochehr’s best interests to be separated from his parents.

  6. In the Tentative View I invited the parties to make submissions on
    whether it was open to the Minister to exercise his discretion to grant each
    member of the Yousefi family a bridging visa in this case but noted that
    ‘subject to considering any further submissions on the possible grant of a
    bridging visa’, I intended to confine this inquiry to the s 417 and s
    5 options.

  7. On 19 February 2010 the Department provided MSI 225, 386 and 387.
  8. On 26 March 2010 the Department provided submissions regarding whether it
    was open to the Minister to exercise his discretion to grant each member of the
    Yousefi family a bridging visa under Regulation 2.20 of the Migration
    Regulations.

  9. The Department provided the following summary of its
    position:

    There is a possibility that it may have been open to the
    Minister to grant each member of the Yousefi family a Bridging visa E (BVE)
    subject to the family satisfying all Schedule 1 and Schedule 2 criteria.

    It should be noted that, without an application for a BVE from the Yousefi
    family, there was no legal obligation for officers to have considered the grant
    of a BVE either by inviting the family to apply or by granting a BVE without
    application...

  10. The Department also noted that, in the absence of a BVE application by the
    family, officers had two options:

    1. officers could have assessed the family against the BVE validity criteria
      and, if the family appeared to have met the criteria, invited them to
      apply;[21] and

    2. if an officer determined that the family were ‘eligible
      non-citizens’ according to regulation 2.25 the Minister may grant a
      Bridging E (Class WE) visa.

  11. The Department noted that ‘if the Complainants were
    “unwilling” to make an application for a BVE it was open to an
    officer to grant a BVE without application if he or she were satisfied the
    family would have met the Schedule 2 criteria’ which included signing an
    undertaking that they would present to the Department should they withdraw their
    visa application or upon completion of judicial review. The Department further
    submitted that ‘If the family were not willing to apply for a BVE it is
    considered unlikely that they would sign the...undertaking’.

  12. On 31 March 2010, the Complainants provided the following submissions in
    relation to whether it was open to the Minister to exercise his discretion to
    grant each member of the Yousefi family a bridging visa under Regulation 2.20 of
    the Migration Regulations:

    It is submitted that Manoochehr Yousefi
    should have been granted a bridging visa E as he would qualify as a prescribed
    person according to Sub-regulation 2.20(7) of the Migration Regulations 1994.

    The Department asserts that it was unlikely this criteria would be met on the
    grounds that Manoochehr would fail to meet “the requirement that
    arrangements had been made for the care and welfare of the non-citizen that are
    in the best interests of the child and the grant of a visa to the noncitizen
    would not prejudice the rights and interest of any person who has, or may
    reasonably be expected to have custody or guardianship, or access to, the
    non-citizen”.

    It is submitted the interests of the parents were to see their mentally ill
    and sometimes suicidal son in a better position and not incarcerated. This is
    likely to outweigh the immediate risk that parents remain incarcerated while
    their son is released. Surely their primary interest would be for the welfare of
    their son by his removal from the odious circumstances of his detention.

    There is of course the interplay between the removal of the son and the
    rights of Mr and Mrs Yousefi for a bridging visa under Sub-regulation
    2.20(9) of the Migration Regulations 1994. It has been conceded that there were
    several periods in which the family would have met the criteria of the bridging
    visa.

    The failure of the family to obtain a bridging visa E was first on the basis
    that their applications were recorded as ‘invalid’. This should be
    seen in the circumstances of a family incarcerated in a detention centre, not
    understanding the language or the system for the application and with very few
    resources available to them to make a valid application.

    In the above circumstances it is respectfully submitted that it was open to
    the Minister to exercise his discretion to grant each member of the Yousefi
    family a bridging visa under Sub-regulation 2.20 of the Migration Regulations
    1994.

(c) Findings as to whether the failure to
remove the Yousefi family was an act within the inquiry jurisdiction
  1. I find that it was open to the Minister to exercise his ‘public
    interest’ discretion to intervene pursuant to s 417 of the Migration Act
    and that the Minister further had discretion pursuant to s 5 of the Migration
    Act to approve an alternate place of detention for the Complainants.
    I therefore find that the failure to remove the Yousefi family from the
    detention centre environment was an act of the Commonwealth.

  2. I find that MSIs 225, 386 and 387 confirm that the Minister had a
    discretion (being a power, but not a duty) to review a tribunal decision and
    substitute a more favourable decision than that of the Migration Internal Review
    Office, the Immigration Review Tribunal, the Administrative Appeals Tribunal,
    the Migration Review Tribunal or RRT if he considered such action to be in the
    public interest.

  3. The circumstances which the Minister could consider include:

    1. circumstances that may bring Australia’s obligations as a signatory
      to the CROC into consideration (MSI 225; para 4.2.3); and

    2. circumstances that may bring Australia’s obligations as a signatory
      to the ICCPR into consideration including ‘the health and
      psychological state of the person’ (MSI 225; para 4.2.12).

  4. Moreover I note that the application can be made by the person seeking
    intervention, their agents or supporters (MSI 225; 6.4) or in another
    manner (MSI 225;
    6.7).

6.2 Findings as to the effects
of immigration detention on the Yousefi family

(a) Effects of detention on Mr Yousefi
  1. I find that immigration detention had the following effects on
    Mr Yousefi:

    1. From at least April 2002 Mr Yousefi’s mental health deteriorated
      dramatically and he began to exhibit behaviour consistent with a major
      depressive illness and post-traumatic stress disorder. On 13 April and
      again on 4 May 2002, he attempted to hang
      himself.[22]

    2. Between 27 June to 4 July 2002 Mr Yousefi was admitted to Glenside
      Hospital with major depression and psychotic symptoms.

    3. During 2003 Mr Yousefi was still displaying symptoms of major
      depression with paranoid psychotic features and his condition continued to
      deteriorate.

    4. Throughout the period of detention, Mr Yousefi exhibited continued
      thought disorder as well as multiple attempted suicides by hanging and multiple
      acts of self-harm such as sewing his lips together, food refusal and hunger
      strikes.

    5. Mr Yousefi remained isolated in his donga and continued to exhibit
      symptoms of a major psychotic disorder throughout the 3 years of his
      detention.
(b) Effects of
detention on Manoochehr Yousefi
  1. I am satisfied of the following matters concerning the effects of
    immigration detention on Manoochehr Yousefi:

    1. The devastating effect of immigration detention on Manoochehr
      Yousefi’s mental health was extensively documented in records held by the
      Department.

    2. Psychologist, Desa Acaster wrote on 21 October 2002 that ‘prior to May
      2002, Manoochehr was a happy boy’. The WFOP1.18 Individual Management Plan
      for Manoochehr states that Manoochehr was:

      a pleasant,
      well-educated and well-mannered boy. He had an excellent attendance record at
      school and was a bright student.

    3. There was concern for Manoochehr’s mental health from as early as
      7 May 2002. On 10 May 2002 the Investigation Report on Child Protection
      Intake noted that Manoochehr had clear signs of severe stress which had worsened
      over the previous few months. Counselling and a psychiatric assessment were
      recommended.

    4. Psychiatric Nurse, John Quarrie wrote on 20 May 2002, that Manoochehr was
      beginning to show ‘behavioural deficits’ while separated from his
      father in the Woomera Residential Housing Project. The assessment notes state
      that while Mrs Yousefi and Manoochehr were in the residential housing
      project:

      Manoochehr exhibited clear signs of stress: his
      sleep-talking, nightmares and now sleep-walking indicate deep-seated trauma. The
      current stressors of detention and his parents’ depression are clearly
      causing extreme distress ...[23]

    5. In May 2002, Family and Youth Services was notified after Mr Yousefi
      attempted to hang himself twice and Manoochehr threatened selfharm. On the
      recommendation of Family and Youth Services that it was preferable to keep the
      family together, Mrs Yousefi and Manoochehr Yousefi returned to the Woomera
      Detention Centre on 25 May 2002.

    6. On 27 and 28 May Manoochehr Yousefi made cuts to his left forearm with a
      razor and on 29 May 2002 Manoochehr Yousefi was hospitalised at Woomera
      Hospital.

    7. On 6 June 2002 the Report on Child Protection Intake noted that Manoochehr
      Yousefi demonstrated serious mood and behavioural deterioration, was both
      self-harming and at ongoing risk of selfharm and was unable to be supported by
      his parents. The Report recommended an assessment by a child psychiatrist and
      that Manoochehr Yousefi and at least one parent be released from Woomera
      Detention Centre.

    8. Between May 2002 and November 2002, Manoochehr self-harmed by cutting
      himself on at least 8 occasions and attempted to hang himself twice. The medical
      incident reports show that Manoochehr’s mental health deteriorated further
      with Manoochehr becoming increasingly violent and aggressive. It appears that,
      as Mr Yousefi’s condition deteriorated, Manoochehr started to adopt
      the role of the father and protector of the
      family.[24] He sometimes stayed up
      all night to watch over his parents. He had recurrent nightmares and wet his
      bed.

    9. Between 10 June 2002 and 18 July 2002 the Department’s records
      document that Manoochehr became frequently violent and aggressive, had
      nightmares, wet the bed, self-harmed with razors and plastic knives and
      attempted to hang himself.

    10. Between May 2002 and December 2002 Manoochehr rarely attended school and the
      family was reported to have withdrawn from outings, and isolated themselves from
      ACM officers and the other families in the detention centre.

    11. In October 2002 a deterioration in Manoochehr was observed including a
      number of self-harm attempts and a lack of participation in activities.
      Departmental records note an allegation by Mrs Yousefi that some adult
      males in the centre were sexually harassing Manoochehr.

    12. Between 31 July 2002 and 31 December 2002, to the knowledge of Detention
      Centre staff, Manoochehr lacerated his left forearm, using variously razors,
      broken light bulbs or plastic knives on at least
      10 occasions.

    13. Between 3 January 2003 and 23 February 2003, to the knowledge of Detention
      Centre staff, Manoochehr lacerated his left forearm, using variously razors,
      broken light bulbs or plastic knives on 6 occasions.

    14. Between 29 March 2003 and 7 June 2003, to the knowledge of Detention Centre
      staff, Manoochehr lacerated his left forearm, using variously razors, broken
      light bulbs or plastic knives on 4 occasions.

    15. Between January 2003 and June 2003 Manoochehr’s mental health
      condition continued to deteriorate in the Baxter Detention Centre and Manoochehr
      rarely attended school.

    16. On 27 June 2003 the High Risk Assessment Team report noted that Manoochehr
      was developing borderline personality traits, that self-harm was recurring and
      that he had episodes of violent and aggressive behaviour.

    17. As at 3 July 2003, Manoochehr was not attending school.

    18. On 4 October 2003 a medical incident report states Family and Youth Services
      had been contacted regarding allegations that Manoochehr had been approached by
      a co-detainee asking for sexual favours.

    19. Additionally, Manoochehr was considered to be at immediate high risk of
      suicide on 27 May 2002, 21 October 2002 and 6 January 2003.

    20. The WFOP1.18 Individual Management Plan records approximately 45 incidents
      of actual self-harming or threatened self-harming as well as 18 incidents of
      property damage and/or aggression between 4 May 2002 and 1 December 2003.
      During this time, Manoochehr was reported to have become increasingly isolated
      and withdrawn, refusing to participate in school or other activities or to
      communicate with ACM
      officers.
(c) Effects of
detention on Mrs Yousefi
  1. I am satisfied of the following matters concerning the effects of
    immigration detention on Mrs Yousefi:

    1. On 20 May 2002, Psychiatric Nurse John Quarry noted that Mrs Yousefi
      was ‘stressed’ and ‘worried’ about her husband and son
      and required ‘supportive psycho-therapy’. Professor Norman James
      diagnosed her as suffering from a depressive illness on 26 July 2002.

    2. On 21 October 2002, Psychologist, Desa Acaster noted that Mrs Yousefi
      was withdrawing from excursions, had lost 15 kilos in 2 months, her energy
      and concentration were low and her menstruation was altered.

    3. Between January 2003 and June 2003 Mr Yousefi and Manoochehr’s
      mental health condition continued to deteriorate in the Baxter Detention Centre
      and Mrs Yousefi suffered extreme stress and concern caring for her family
      members and watching their conditions worsen.

    4. On 13 April 2004, Dr Jon Jureidini expressed concerns about
      Mrs Yousefi’s mental state, considering the ‘stress and strain
      of her heroic effort to care for her husband and son was catching up with
      her.
(d) The mental health
experts’ repeated recommendations
  1. I also find that mental health experts made repeated recommendations in
    relation to the effect of detention on the family. Particularly I find
    that:

    1. The Yousefi family were noted as being of concern from as early as May 2002.
      On 10 May 2002, Jude Maguire, Senior Practitioner, Crisis Response & Child
      Abuse and David Lawry, Social Worker recommended counselling and psychiatric
      assessment for Manoochehr as well as allocating a social youth worker to provide
      long-term services.

    2. On 6 June 2002, it was recommended that Manoochehr and at least one parent
      be released from detention to facilitate counselling. On 18 June 2002,
      Psychologist Robin Gracie reports ‘previous intervention has been on-going
      counselling, psychological intervention, medication and time out in
      hospital’.

    3. The first report unequivocally advising the ACM Manager, Mr David
      Coulton, that the Yousefi family should be removed from the detention centre
      environment is that of Dr P Bakhitarian, Fellow in Child Psychiatry and Con
      Paleologos, Senior Clinical Psychologist, dated 23 July
      2002.

    4. Dr Bakhitarian’s report of 23 July 2002 describes Manoochehr
      as:

      a 12 year old boy who presents with a history of
      depressed mood in association with neurovegetative changes of insomnia,
      lethargy, anorexia and poor concentration. He describes feelings of hopelessness
      and helplessness and he is anhedonic. He has made multiple suicide attempts in
      the past and he is at significant risk of further suicide attempts.

    5. Dr Bakhtiarian and Mr Paleologos described Manoochehr as
      ‘copying’ and learning self-harm behaviours from the other detainees
      and diagnosed Manoochehr with a major depressive disorder and noted evidence of
      intrusive thoughts, recurrent nightmares, hyper vigilance and Post Traumatic
      Stress Disorder secondary to traumatisation in the detention centre. They noted
      that Manoochehr had made multiple suicide attempts and was at significant risk
      of further suicide attempts. The report states:

      We recommend that
      Manoochehr and his family be removed from the Detention Centre as a matter of
      urgency. Manoochehr’s emotional deprivation and PTSD can not be treated in
      the detention context, because that environment is contributing to it. Continued
      detention increases the risk of self-harming behaviour and increased
      traumatisation. ...

      We do not believe that separating the family at this stage would be in their
      best interests. However we do feel strongly that further detention in the centre
      would be detrimental to their mental health and may pose significant risk as it
      could result in serious self-harm attempts.

  2. After this report, at least 11 further separate reports from medical and
    mental health professionals outline their author’s extreme concern for the
    wellbeing of the Yousefi family and recommend that the family be removed from
    the detention centre environment. Key extracts from these reports are outlined
    in Appendix 2.

  3. The mental health experts that came into contact with the Yousefi family
    recommended that the whole Yousefi family be moved to community detention
    together because Mr Yousefi and Manoochehr’s mental health problems
    could not be treated in detention and it would further traumatise the family
    members to be separated
    again.[25]
(e) The
Commonwealth’s knowledge
  1. As is apparent from my findings above, I am satisfied that officers of
    the Department and ACM were aware of the Yousefi family’s problems from at
    least May 2002.[26]

  2. Each of the above medical reports, the accuracy of which I have no
    reason to doubt, including the initial report of 23 July 2002 recommending the
    Yousefi family be removed from the detention centre environment, was addressed
    to either Department Centre Managers, ACM Managers or to members of the ACM
    mental health team reporting to these managers.

  3. I note that Department Manager Annabelle O’Brien made the
    following departmental communications about the Yousefi family:

    1. 14 October 2002 to Assistant Secretary, Jim
      Williams:

    Dr Lockwood and the Psychiatric Nurse as well as
    the other examining specialists strongly recommend the family be moved from
    Woomera as a matter of urgency.

    Continued detention at Woomera [Detention Centre] will only worsen the
    condition.

    Each family member had displayed extremely serious mental health
    conditions.

    A deterioration in Manoochehr in recent weeks had been noted including a
    number of self-harm attempts, a lack of participation in activities and
    allegations that some adult males in the centre are sexually harassing him.

    Consider alternative detention either in Psychiatric facility or community
    placement, with strong network of support.

    Family is effectively ‘unfit to travel’.

    Dr Lockwood believes that remaining in a detention centre environment will
    not allow for the family to achieve any improvements in their mental health.

    1. 21 October 2002 to the Detention Operations Director:

      Concerns
      about capacity for family to be managed within current detention environment and
      that Manoochehr has refused all efforts to go to school or participate in
      activities.

    2. 7 July 2003 to Assistant Secretary, Jim Williams:

      The strategies
      utilized by the Mental Health team to provide ongoing management and health
      services to this family have been exhausted and there appears to be no
      interventions left at the disposal of the staff to attempt to rectify this
      predicament.

  4. On 22 October 2002 a minute was sent to the Minister about the Yousefi
    family. The minute stated that the mental health condition of this family
    required ‘urgent consideration’ and advised that ‘if the
    family remains in detention their dysfunction will worsen; a move to another
    detention facility will maintain the status quo and actual improvement is most
    likely outside detention’. The minute outlined three options for
    consideration by the Minister: that the Yousefi family remain in Woomera
    Detention Centre; that they be transferred to another detention facility; or
    that they be detained in the community. The minute also noted the possibility of
    intervention under s 417 of the Migration Act.

  5. Anne Dutney, Acting General Manager of Detention Services, followed up this
    minute with a letter to the Assistant Secretary, dated 5 November 2002. She
    enclosed 18 previous reports about the Yousefi family’s situation and
    noted the serious concerns ACM held about the safety and welfare of the Yousefi
    family. She noted that the solutions available to ACM, as the contracted
    service providers, were unable to provide an effective
    response.

6.3 Relevant human rights
under the ICCPR

  1. In the circumstances of this case, the Commonwealth’s failure to
    remove the Yousefi family from the detention centre environment raises for
    consideration the following human rights under the ICCPR:

    1. Article 9 of the ICCPR; and

    2. Articles 7 and 10 of the
      ICCPR.
(a) Article 9 of the
ICCPR: liberty and freedom from arbitrary detention
  1. Article 9(1) of the ICCPR protects the right to liberty and guarantees that
    ‘no one shall be subjected to arbitrary arrest or detention’.
    Detention includes immigration
    detention.[27]

  2. Under the ICCPR, ‘lawful detentions may be arbitrary, if they exhibit
    elements of inappropriateness, injustice, or lack of predictability or
    proportionality’.[28] Prolonged detention and even indefinite detention may be lawful where a detainee
    does not have a visa,[29] however,
    it might still be arbitrary.

  3. For this reason the question before the Commission is not whether the
    detention of the Complainants was lawful, but whether the detention was
    arbitrary and therefore in breach of article 9.

  4. Having regard to the international jurisprudence it is apparent that lawful
    immigration detention may become arbitrary when a person’s deprivation of
    liberty becomes unjust, unreasonable or disproportionate to the
    Commonwealth’s legitimate aim of ensuring the effective operation of
    Australia’s migration
    system.[30] Accordingly, where
    alternate places of detention that impose a lesser restriction on a
    person’s liberty are reasonably available to the Department, prolonged
    detention in an immigration detention centre may be disproportionate where
    detention in an immigration detention centre is not demonstrably
    necessary.

(i) Findings as to whether the practice of requiring
the father of the Yousefi family to be detained was inconsistent with
the rights of each member of the Yousefi family under article 9 of the
ICCPR

  1. I find the Department’s practice of requiring the father of the
    family to remain in an immigration detention centre had the consequence of
    Mr Yousefi unjustifiably remaining in a detention centre from 24 August
    2001 until 15 June 2004 and Mrs Yousefi and Manoochehr being unjustifiably
    detained in a detention centre from 25 May 2002 until 15 June 2004 and was
    inconsistent with each member of the Yousefi family’s right to liberty and
    freedom from arbitrary detention in article 9 of the ICCPR.

  2. The practice precluded any serious consideration being given to approving an
    alternate place of detention for all members of the Yousefi family.

  3. In this particular case, there is no evidence that the Yousefi family or
    Mr Yousefi presented any security or other risks to the community nor posed
    any threat of absconding justifying detention in an immigration detention centre
    rather than in residential housing. However, only Mrs Yousefi and
    Manoochehr Yousefi were permitted to enter the residential housing project on 24
    August 2001.

  4. Further, when Manoochehr and Mr Yousefi’s mental health
    deteriorated, on the advice of Family and Youth Services that the family should
    be kept together, Mrs Yousefi and Manoochehr were brought back to the
    detention centre.

  5. A minute to the Minister dated 22 October 2002 mentioned that the costs of
    community detention may be high. In my view, any additional cost was not of
    sufficient significance to justify the continued detention of the Yousefi family
    in a detention centre.

  6. Furthermore, the cost of community detention seems to have escalated because
    of Mr Yousefi and Manoochehr’s mental health needs. The evidence
    supports the conclusion that these needs were associated with the Yousefi
    family’s prolonged detention in the detention centre environment.

  7. It was open to the Commonwealth to approve an alternate place of detention
    for the Yousefi family in the community by at least the date that
    Mrs Yousefi and Manoochehr entered the residential housing project on 24
    August 2001.

  8. The act of failing to remove the Yousefi family from the immigration
    detention centre environment had serious negative effects on each member of the
    family.

(ii) Findings as to whether the failure to remove the
Yousefi family from detention was inconsistent with their rights under article 9
of the ICCPR

  1. I find the act of failing to remove the Yousefi family from the
    immigration detention centres was inconsistent with their right to liberty and
    freedom from arbitrary detention from at least 23 July 2002. Detention of the
    family in the Woomera Detention Centre and the Baxter Detention Centre was not
    the least invasive means of detaining them and was unreasonable and
    disproportionate to the Commonwealth’s legitimate aim of ensuring the
    effective operation of Australia’s migration system.

  2. It was open to the Minister to either:
    1. substitute a more favourable decision for the decision of the RRT, from
      February 2002, and grant visas to the family, as he ultimately did more than two
      years later; or

    2. approve an alternative place of detention which was less invasive, more
      reasonable and more proportionate.

  3. The Department was aware of significant factors weighing in favour of the
    Minister exercising one or both of these discretions. These factors
    included:

    1. the lack of any evidence that any member of the family presented
      a security or flight risk sufficient to justify their detention in an
      immigration centre; and

    2. in the case of each of Mr Yousefi and Manoochehr, the repeated and
      urgent advice of no less than twelve mental health professionals was that no
      mental health intervention could successfully treat them while the family
      remained in detention.

  4. I find that:
    1. The Commonwealth was on notice from at least May 2002 that the advice of
      mental health professionals was that the family needed to be re-united and
      removed from the detention centre environment.

    2. From 23 July 2002 that Department was advised unequivocally
      that:

      1. Manoochehr Yousefi and his family should be removed from the Woomera
        Detention Centre as a matter of urgency;

      2. the family’s significant mental and health problems could not be
        treated in the detention context, because that environment was contributing to
        them; and

      3. continued detention increased the risk of self-harming behaviour and
        increased traumatisation.

    1. The Department was advised unequivocally from 23 July 2002 that further
      detention in the Woomera Detention Centre would be detrimental to the mental
      health of each of the members of the Yousefi family and may pose significant
      risk including serious self-harm attempts.

  5. The legal scope of the discretion in s 417 of the Migration Act can
    reasonably be construed to include special cases where it would be in the
    ‘public interest’ to grant a visa – this includes cases where
    solutions are required to ensure the Commonwealth avoids breaching
    someone’s human rights[31] and
    in circumstances calling for compassion because of the health or psychological
    state of a person.

  6. The extreme dysfunction, mental illness and suffering each member of the
    Yousefi family experienced in the detention centre environment as documented by
    the mental health experts constituted extraordinary circumstances warranting the
    Minister’s intervention under s 417 of the Migration Act to remove the
    Yousefi family from the detention centre environment. The Minister chose not to
    do so.

  7. It is inconceivable, in light of the particular circumstances of the Yousefi
    family, that there were not alternate places of detention available that would
    have imposed a lesser restriction on their liberty or less invasive means
    available to the Department of achieving compliance with the immigration
    policies. For example, by the imposition of reporting obligations, sureties or
    other conditions which would take account of the family’s deteriorating
    psychiatric condition and need for intensive support outside of the detention
    centre environment.

  8. The continued detention of the family until June 2004 was patently not
    demonstrably necessary.
(b) Articles 7
and 10 of the ICCPR: standard of treatment while in detention
  1. In the circumstances of this particular case, the continuing detention of
    the Yousefi family also raises for consideration articles 7 and 10 of the ICCPR.

  2. The relevant question, in relation to article 7, is did the continued
    detention of the Yousefi family in an immigration detention centre from July
    2002 to June 2004 amount to cruel, inhuman or degrading treatment or
    punishment?

  3. From 2002, the Commonwealth had the benefit of the decision of the UNHCR in C v Australia[32] where the
    UNHCR, in an analogous matter made a finding of ‘cruel, inhuman and
    degrading treatment’ under article 7 of the ICCPR where an immigration
    detainee’s prolonged arbitrary detention was reported as contributing to
    his mental health problems and the authorities were aware of this but delayed
    releasing the detainee from immigration detention.

  4. As noted in Appendix 2, the threshold for establishing a breach of article
    10 is lower than for article 7.

  5. The relevant question, in relation to article 10, is whether the facts
    demonstrate a failure to treat a detainee humanely and with respect for their
    inherent dignity as a human being. Under article 10, the Department is obliged
    to take positive actions to prevent inhumane treatment of detained persons, such
    as providing appropriate medical and mental health care
    facilities.[33] It is incumbent upon
    a decision maker to examine whether less restrictive detention options are
    available (such as detention in the community) in cases, like the current one,
    where it is known that prolonged detention is causing serious and ongoing mental
    health problems.

(i) Findings as to whether the failure to remove
the Yousefi family from immigration detention was inconsistent with the required
standard of treatment while in detention under articles 7 & 10 of the
ICCPR

  1. I find that the failure to intervene in this case to remove the Yousefi
    family from the detention centre environment where such removal was lawful and
    reasonably available to the Department constituted a breach of article 10 for
    all members of the family.

  2. Denying an effective mental health intervention to Mr Yousefi and
    Manoochehr and causing distress and worry to Mrs Yousefi in the
    circumstances of this particular case go beyond the mere fact of deprivation of
    liberty. The Department’s failure to act on the recommendations made in at
    least 13 separate reports from qualified mental health professionals
    demonstrates a failure to treat Mr Yousefi, Mrs Yousefi and Manoochehr
    humanely and with respect for their inherent dignity as human beings. The
    failure to remove the Yousefi family from the detention centre environment where
    such removal was lawful and reasonably available to the Department constituted a
    breach of article 10 for all members of the family.

  3. The evidence before me establishes that all of the members of the Yousefi
    family had adequate access to the mental health interventions available at both
    the Woomera and Baxter Detention Centres. However, as outlined above, the
    evidence also establishes that the Commonwealth was aware that no mental health
    intervention could help Mr Yousefi or Manoochehr while the Yousefi family
    remained in the detention centre environment – that all strategies were
    exhausted.[34] For example, Dr Jon
    Juredini writes on 21 May 2003 that ‘the Department’s decision to
    continue to detain this family is a decision to deny them mental health
    intervention.’

  4. In summary, the expert opinion of numerous mental health professionals as
    outlined above was that neither Manoochehr nor Mr Yousefi could be
    successfully treated while still in detention and that the family should not be
    separated.

  5. The failure to remove the Yousefi family from the detention centre
    environment where such removal was lawful and reasonably available to the
    Department also placed Mrs Yousefi under great strain as she bore the
    burden of caring for her husband and son and watching hopelessly as their
    condition deteriorated and could not improve in circumstances where she had no
    power to provide assistance or seek the necessary mental health interventions
    that specialist medical teams were advising her family needed. It caused her to
    feel deeply distressed and agitated over a prolonged period and she was
    diagnosed as suffering from a depressive
    disorder.[35]

  6. Further, I find an element of reprehensibleness and inhumanity in the
    treatment of Mr Yousefi and Manoochehr Yousefi by the Department sufficient
    to constitute a breach of article 7. The continued deprivation of the liberty,
    and arbitrary detention of Mr Yousefi and Manoochehr Yousefi in a detention
    centre environment in circumstances where they were suffering psychologically
    and continuing to selfharm was cruel, inhuman and degrading consistent with the
    majority view in C v
    Australia
    .

6.4 Relevant human
rights under the CRC

  1. As Manoochehr was born on 17 July 1990 and was only 10 years old when he was
    first detained, the failure to remove the Yousefi family from either the Woomera
    or Baxter Detention Centres raises for particular consideration articles 3, 19
    and 37 of the CRC.
(a) Article 3 of
the CRC
  1. Article 3(1) of the CRC can be summarised as relevantly providing that, in
    all actions concerning children undertaken by administrative authorities, the
    best interests of the child shall be a primary consideration.

  2. The UNICEF Implementation Handbook for the CRC provides the following
    commentary on article 3:

    The wording of article 3 indicates that the
    best interests of the child will not always be the single, overriding factor to
    be considered; there may be competing or conflicting human rights interests...
    .

    The child’s interests, however, must be the subject of active
    consideration; it needs to be demonstrated that children’s interests have
    been explored and taken into account as a primary
    consideration.[36]

  3. Similarly, Mason CJ and Deane J noted in Minister for Immigration and
    Ethnic Affairs v Teoh,
    [37] that
    article 3 of the CRC is ‘careful to avoid putting the best interests of
    the child as the primary consideration; it does no more than give those
    interests first importance along with such other considerations, as may, in the
    circumstances of a given case, require equal, but not paramount,
    weight’.[38]

  4. The expert opinion provided in at least 11 reports that I have seen all
    expressed the view that removing the Yousefi family from the detention centre
    environment was necessary so that Manoochehr could be successfully treated and
    receive the care and protection necessary for his wellbeing.

  5. The minute about the Yousefi family sent to the Minister on 22 October 2002
    does not demonstrate that the best interests of Manoochehr were regarded as a
    primary consideration or a consideration at all. The writer outlines the
    ‘pros and cons’ of three options available for the ongoing
    management of the Yousefi family. For detention in the community, the
    ‘cons’ are noted as including potential significant cost to the
    Department.

  6. The ‘pros’ do not include any consideration of the likely
    benefits to Manoochehr’s wellbeing nor his best interests in any sense. No
    ‘pros’ or ‘cons’ are listed for the alternative option
    of intervening under s 417 of the Migration Act. It therefore appears that
    the best interests of Manoochehr were not put to the Minister to consider as a
    ‘primary’ consideration alongside these other important
    considerations.

  7. It appears that the Minister read and noted the contents of this minute. The
    Minister records his decision on 2 November 2002 that alternative detention with
    Family and Youth Services and intervention under s 417 of the Migration Act are
    not to be given further consideration. This note does not give any indication of
    the kind of balancing exercise undertaken by the Minister.

  8. The evidence before me does not show that Manoochehr’s best interests
    were considered as required by article 3 of the CRC – there is no evidence
    that Manoochehr’s best interests were considered as being of equal weight
    to the other considerations.

  9. Furthermore, it appears that the advice of the mental health experts was not
    considered sufficiently compelling to displace the presumption that the family,
    or at least Mr Yousefi, should remain in the detention centre environment.
    By failing to consider removing the family from the detention centre
    environment, the Department demonstrated that its only primary consideration was
    keeping Mr Yousefi in a detention centre.

  10. I note that at the time the Minister considered that, as a general
    principle, keeping families together in detention rather than removing only the
    child was in the child’s best
    interests.[39]

  11. Numerous mental health professionals advised that removing the Yousefi
    family from detention was in Manoochehr’s best interests. None advised
    that keeping the whole family in detention was in Manoochehr’s best
    interests.

  12. In particular, I note that Dr Jon Jureidini’s report, dated 19
    August 2002 advises that the family should not be separated but on the other
    hand, ‘it is dangerous for Manoochehr to remain in detention’. On
    this basis, he recommends the removal of the whole family from the detention
    centre.

(i) Finding as to whether the failure to remove the
Yousefi family from immigration detention centres was inconsistent with the
requirement to have the best interests of the child as a primary consideration
under article 3(1) of the CRC

  1. I find the Commonwealth was not acting in the best interests of
    Manoochehr by keeping the whole family in detention. I am therefore of the
    view that the failure to remove the Yousefi family from the detention centre
    earlier than 15 June 2004 was inconsistent with article 3(1) of the CRC.

  2. Article 3(2) of the CRC relevantly requires the Commonwealth to take all
    administrative measures to ensure the child such protection and care as is
    necessary for his or her wellbeing, taking into account the rights and duties of
    his or her parents.

  3. A child’s mental health is directly constitutive of his or her
    wellbeing. As outlined above, the majority of mental health experts that
    examined Manoochehr were of the view that he could not be successfully treated
    in the detention centre environment and that it would be detrimental to separate
    the Yousefi family.

  4. The evidence therefore establishes that removing the Yousefi family from the
    immigration detention centre environment was ‘necessary’ for
    Manoochehr’s wellbeing.

  5. Failing to remove the whole family from the detention centre environment
    earlier than 15 June 2004, as this was within the Commonwealth’s
    discretion, was also inconsistent with article 3(2) of the CRC. In reaching this
    finding I have considered whether keeping the family together in a
    detention centre accommodated the rights and duties of Manoochehr’s
    parents.

  6. Article 3(2) of the CRC subjects the State’s obligation to provide the
    necessary care and protection for the well-being of the child to the rights and
    duties of parents. However, the State is obliged to provide a
    ‘safety-net’ where parents are either unable or unwilling to provide
    the necessary protection and care or where this is beyond their
    control.[40]

(ii) Finding
as to whether the failure to remove the Yousefi family from immigration
detention centres was inconsistent with the Commonwealth’s obligations in
relation to Manoochehr’s well-being under article 3(2) of the
CRC

  1. Neither Mr Yousefi nor Mrs Yousefi had the power to authorise the
    family’s removal from detention. The evidence supports that this was
    ‘necessary’ for Manoochehr’s wellbeing. Therefore, I find
    the Commonwealth’s failure to remove the family from the detention centre
    environment, where only it could effect their removal, was inconsistent with
    article 3(2).
(b) Article 19 of the
CRC
  1. Australia is obliged under article 19(1) of the CRC to take all appropriate
    administrative measures to protect children from all forms of physical or mental
    violence, abuse or neglect while in the care of parent(s) or any other person
    who has the care of the child.

  2. Article 19(2) explains this obligation by relevantly providing that
    ‘such protective measures should, as appropriate, provide for the
    prevention of child maltreatment.’

  3. I note that ‘mental violence’ includes humiliation,
    harassment, verbal abuse, the effects of isolation and other practices that
    cause or may result in psychological
    harm.[41]

  4. The UNICEF Implementation Handbook states that ‘protecting children
    from self-harm, including suicide and attempted suicide, clearly comes within
    the ambit of article 19’.[42] The phrase ‘any other person who has the care of the child’ is
    sufficiently broad to include all institutional
    settings[43] such as an immigration
    detention centre.

  5. The evidence shows that the Commonwealth was on notice from sometime between
    May and July 2002 that Manoochehr was severely disturbed and that he was at risk
    of accidental suicide through self-harm. The Commonwealth was further aware that
    the procedures available in the detention facility were neither adequate to
    protect Manoochehr from this danger nor could they facilitate the effective
    mental health intervention that Manoochehr required.

  6. In this regard, I note Dr Lockwood’s recorded comments at the
    case conference held on 11 October 2002 that ‘detention amounts to
    emotional abuse of Manoochehr’.

(i) Finding as to whether
the failure to remove the Yousefi family from immigration detention centres was
inconsistent with the obligation to protect Manoochehr from mental violence
under article 19 of the CRC

  1. I find the Department breached article 19 of the CRC because, despite
    knowledge of the effect of detention on Manoochehr, it failed for approximately
    two years, to remove the Yousefi family from the detention centre environment.
(c) Article 37 of the CRC
  1. Article 37 of the CRC provides in summary that:

    (a) no child
    shall be subject to torture or other cruel, inhuman or degrading treatment or
    punishment;

    (b) no child shall be deprived of his or her liberty unlawfully or
    arbitrarily. The detention of a child shall be in conformity with the law and
    shall be used only as a measure of last resort and for the shortest appropriate
    period of time; and

    (c) every child shall be treated with humanity and respect for the inherent
    dignity of the human person, and in a manner which takes into account the needs
    of persons of his or her age.

  2. The United Nations Committee on the Rights of the Child has indicated that
    the detailed standards set out in the United Nations Standard Minimum Rules for
    the Administration of Juvenile Justice (the Beijing Rules) and the United
    Nations Rules for the Protection of Juveniles Deprived of their Liberty (the UN
    Rules) are relevant to the interpretation of article
    37.[44]

  3. I note that the UN Rules require that the detention of a child
    ‘should always be a disposition of last resort and for the minimum
    necessary period’[45] and the
    Beijing Rules state that any detention should be
    brief[46] and should occur only
    where the child has committed ‘a serious act involving
    violence’.[47] The UN Rules
    and Beijing Rules stress:

    • the importance of considering alternatives to detention in an
      institution;[48]

    • the need to ensure that the conditions of detention and care promote,
      sustain and protect the health (including mental health) of child
      detainees;[49]

    • the need to ensure adequate medical care (both preventative and remedial)
      and to ensure immediate access to adequate medical
      facilities;[50]

    • the importance of providing appropriate educational and leisure
      opportunities and providing an environment where child detainees may associate
      with other children their age;[51] and

    • the treatment of children deprived of their liberty must take into account
      their age and the needs of child development.
  4. There is evidence that ACM officers attempted to engage Manoochehr in
    recreational and schooling activities, made the services of the mental health
    team available to Manoochehr and kept Manoochehr on constant observations.
    However, there is overwhelming evidence that numerous mental health
    professionals advised ACM and the Department that continued detention was
    dangerous for Manoochehr and amounted to ‘emotional abuse’.

  5. In particular, I note the advice of Psychologist Robin Gracie on 18
    June 2002, that:

    [the boy] in particular, requires input which is
    more appropriate to a child his age which is outside of the role which he has
    acquired at the detention centre.

  6. The evidence establishes that during his time in detention, Manoochehr
    experienced:

    1. the serious decline of his father’s mental health, including changes
      to his behaviour, inability to care for his basic hygiene needs, self-harm and
      suicide attempts as well as the gradual emotional breakdown of his mother;

    2. separation from his father for a period of nine
      months;

    3. the taking on of an adult role to care for his seriously disturbed
      father;

    4. the breakdown of his family unit;
    5. uncertainty and negative outcomes on his visa application;
    6. life in a controlled and closed environment; and
    7. negative treatment from ACM officers and detainees.
  7. In the report dated 23 July 2002, the Department was advised that no mental
    health interventions would be successful in the detention centre environment and
    further, that continued detention would increase the risk of self-harming
    behaviour and increased traumatisation. Almost twelve months later, on 7 July
    2003, the Secretary of the Department was advised that ACM had exhausted all
    mental health interventions available in the detention centre.

  8. Between 4 May 2002 and 1 December 2003 the WFOP1.18 Individual Management
    Plan records approximately 45 incidents of actual self-harming or threatened
    self-harming as well as 18 incidents of property damage and/or aggression by
    Manoochehr.

(i) Finding as to whether the failure to remove the
Yousefi family from immigration detention centres was inconsistent with
Manoochehr’s right to freedom from cruel inhuman or degrading treatment,
deprivation of liberty and arbitrary detention under article 37 of the
CRC

  1. I have already made the finding that the continued detention of
    Mr Yousefi and Manoochehr Yousefi amounted to cruel, inhuman or degrading
    treatment contrary to article 7 of the ICCPR. I find that this also
    amounted to cruel, inhuman or degrading treatment of Manoochehr Yousefi contrary
    to article 37(a) of the CRC.

  2. I have already made the finding that the continued detention of the
    Yousefi family amounted to a failure to treat them with humanity and respect for
    their inherent dignity contrary to article 10 of the ICCPR. I find that
    this also amounted to a failure to treat Manoochehr with humanity and respect
    for his inherent dignity contrary to article 37(c) of the CRC.

  3. I find the Department’s failure to remove the Yousefi family from
    the detention centre environment was inconsistent with Manoochehr’s rights
    under articles 7, 9 and 10 of the ICCPR and was inconsistent with
    Manoochehr’s particular rights under article 37 of the CRC.

7 Alleged breach of human rights in relation to
Manoochehr’s inability to access appropriate medical care and education
while in detention

7.1 Medical
care

(a) Alleged act or practice
  1. Mrs Yousefi complains about the health care that was provided to
    Manoochehr while in detention, about his ‘illness’ and his
    self-harming behaviour.

  2. The provision or non-provision of medical care services are
    ‘acts’ for the purposes of the AHRC
    Act.

(b) Article 24 of the CRC:
highest attainable standard of health
  1. Under article 24 of the CRC, the Commonwealth recognises the right of the
    child to the enjoyment of the ‘highest attainable standard of
    health’ and to facilities for the treatment of illness and rehabilitation
    of health and the Commonwealth is obliged under article 24 of the CRC ‘to
    strive to ensure that no child is deprived of his or her right of access to such
    health care services’. Health care services include mental health
    treatment.

  2. From at least 2002 the Department was on notice that Manoochehr’s
    mental health problems could not be successfully treated in the detention
    context and that the detention centre environment was contributing to those
    problems.

  3. From 23 July 2002 mental health professionals consistently stated that the
    family should be kept together and all removed from the detention centre
    environment.

  4. Manoochehr did have access to health care services including a staged
    intervention by the ACM mental health team in August 2002. However, this
    behavioural management plan did not successfully treat Manoochehr’s mental
    health conditions and on 19 August 2002, Dr Jon Jureidini advised that
    ‘the behavioural management plan will not help self-harm but is likely to
    exacerbate the problem through accentuating the feeling of loss of control and
    victimisation’.

  5. The extensive evidence of the views of mental health experts regarding
    Manoochehr’s inability to access medical care appropriate to his age and
    circumstances is set out in full above.

  6. The full impact of the failure to remove Manoochehr from the detention
    centre environment is articulated in the medical report of Dr Wendy Roberts
    dated 9 July 2010. The damage to Manoochehr from his continued
    detention is, tragically, what was predicted by mental health experts in 2002.

(c) Findings in relation to
Manoochehr’s access to appropriate medical care
  1. I find the failure to remove the Yousefi family from detention or place
    them in alternative detention denied Manoochehr the enjoyment of the appropriate
    standard of mental health services inconsistent with article 24 of the CRC.
    Failing to remove Manoochehr from the detention centre environment when that
    environment was contributing to his mental health problems meant that any health
    care provided to Manoochehr would be fruitless as it would not be sensitive to
    his particular
    concerns.

7.2 Education

(a) Alleged act or practice
  1. Mrs Yousefi’s complaint alleges that Manoochehr can neither
    ‘play nor study.’ She writes in her initial complaint of 25
    August 2002:

    My son is very interested to go to school but the camp
    children mocking him, they tell him your dad is crazy, even the teachers watched
    the children beated (sic) him in the school. (T)he teachers told him, we bring
    some books for you can study them in your room.

  2. The provision or non-provision of education services are ‘acts’
    for the purposes of the AHRC
    Act.
(b) Article 28 of the CRC: right
to education
  1. Under article 28 of the CRC, the Commonwealth recognises the right of the
    child to education ‘on the basis of equal opportunity’. It applies
    equally to all children within Australia. There must be no lesser provision of
    education for any one group of children, regardless of nationality, immigration
    status or how they arrived in Australia. Article 28 of the CRC further provides
    that the Commonwealth take measures to encourage regular attendance at
    school.

  2. The question to which I must direct myself in considering whether there
    has been a breach of article 28 is whether the Commonwealth took appropriate
    steps to ensure Manoochehr was provided with education on the basis of equality
    of opportunity to that provided to children in the Australian community and
    whether the Department took the necessary measures to encourage Manoochehr to
    attend school.

(c) Findings in
relation to Manoochehr’s right to education
  1. I find that the Department’s efforts to provide Manoochehr with
    an education for the duration of his immigration detention fell short of what is
    required by the right to education in article 28 of the CRC.

  2. Article 28 of the CRC ultimately required the Department to provide
    Manoochehr with an education comparable to that provided to students outside of
    the detention centre environment.

  3. The Department’s failure to remove the Yousefi family from detention
    before 15 June 2004 also had the effect of denying Manoochehr an education
    for a period of approximately 18 months. The Department should have recognised
    this denial would cause Manoochehr significant ongoing disadvantage when
    compared with those children living in the Australian community during this
    time.

  4. Children in Australia living in the community are provided with
    approximately six hours of tuition daily during the school term. The
    medical records provided by the Department indicate that Manoochehr rarely
    attended school from at least 23 July 2002 until February 2004.

  5. Some efforts were made to provide Manoochehr with an education in the
    detention centre environment; he had access to some books that he could read in
    his donga. However, Manoochehr’s access to books does not seem to be
    consistent nor supervised and falls short of an ‘education’
    comparable with that provided to children living in the Australian
    community.

  6. I note particularly, the ACM observation note dated 31 July 2002 which
    reports that the mental health team encouraged Manoochehr to attend school and
    tried to persuade him of the importance of schooling. However, Manoochehr
    informed the mental health team that ‘he does not go to school because his
    mother and father are unwell and he needed to take care of them.’

  7. I appreciate that there are difficulties involved in providing access
    to education to children who refuse to go to school or who are not mentally well
    enough to attend school inside and outside of detention centres. I also
    recognise that the parents of children do have a role in ensuring their children
    attend school. However, the evidence before me suggests, compellingly, that the
    Department was aware that Manoochehr’s refusal to go to school was linked
    to his own and his parent’s mental health decline, his distrust of ACM
    officers and the victimisation he experienced from other detainees in detention.
    The family’s mental health decline and dysfunction was reportedly linked
    to and maintained by the detention centre environment. Despite this, there
    appears to be no evidence that the Department took any steps to consider whether
    external education could be made available to
    Manoochehr.[52]

8 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.[53] The Commission may
    include in the notice any recommendation for preventing a repetition of the act
    or a continuation of the
    practice.[54]

  2. The Commission may also recommend:

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

    2. the taking of other action to remedy or reduce the loss or damage suffered
      by a
      person.[55]

8.2 Submissions
from the Complainants and the Department

  1. In the Tentative View I advised the parties that I was inclined to
    recommend that the Minister provide each member of the Yousefi family with a
    formal apology and that compensation should be paid to:

    1. Mr Yousefi for the period between 24 August 2001 and 15 June 2004, for
      breaches of articles 7, 9 and 10 of the ICCPR;

    2. Mrs Yousefi for the period between 25 May 2002 and 15 June 2004 for
      breaches of articles 9 and 10 of the ICCPR; and

    3. Manoochehr Yousefi for the period between 25 May 2002 and
      15 June 2004 for breaches of articles 7, 9 and 10 of the ICCPR as well
      as articles 3, 19, 24, 28 and 37 of the CRC.

  2. By letter dated 1 December 2009, the Department and the Complainants were
    invited to provide submissions in relation to the following areas relating to
    compensation:

    1. The exact date or dates from which it would be appropriate to conclude that
      the Commonwealth was on notice that further detention of the Yousefi family
      members respectively would have detrimental effects on their own mental health
      or that of other family members.

    2. In the event that the President reports a breach of article 9 of the ICCPR,
      the period for which compensation should be paid to each member of the Yousefi
      family as well as the quantum of damages to be paid for this
      period.

    3. In the event that the President reports breaches of articles 7 and 10 as
      well as articles 3, 19, 24, 28 and 37 of the CRC, the potential compensation
      that should be recommended for each member of the Yousefi family.

  3. By letter dated 26 March 2010, the Department advised, in relation to each
    of these areas that:

    Having regard to the foreshadowed common law
    proceedings to be commenced on behalf of Mrs Yousefi and Mr Manoochehr
    Yousefi, the department considers that it would be inappropriate in these
    circumstances to provide a considered response that could have a potential
    adverse effect upon any defence that the Commonwealth may have available to it
    in said common law claims.

  4. In July, August and December 2010 the Complainants provided further medical
    evidence in relation to Mrs Yousefi and Manoochehr.

  5. On 6 August 2010 the Department advised that they did not wish to make any
    further submissions in this matter.

  6. On 10 November 2010 the Commission invited each of the Complainants and the
    Department to make further submissions in relation to specific issues prior to
    the finalisation of the matter.

  7. On 24 November 2010 the Department responded to that request for
    submissions.

  8. On 31 January 2011 the Complainants provided their final submissions
    regarding compensation.

8.3 Impact of
the common law proceedings

  1. My statutory function is to inquire into the allegations that the
    Commonwealth has acted inconsistently with the human rights of Manoochehr
    Yousefi, Mr Yousefi and Mrs Mehrnoosh Yousefi. I acknowledge that
    common law proceedings surrounding the circumstances of their immigration
    detention commenced by Manoochehr Yousefi and Mrs Mehrnoosh Yousefi against
    the Commonwealth are still to be the subject of a judicial determination and
    note that Mr Yousefi’s claim has been settled for an undisclosed
    sum.

  2. In relation to Mr Yousefi, it is well established that where remedies
    are provided under separate claims, they may need to be taken into account in
    considering what is required for effective
    remedy.[56] Furthermore, damages
    should be limited to what is adequate to mark any additional wrong in the breach
    of fundamental human rights. I sought submissions from both parties
    regarding the nature of the claim settled by Mr Yousefi and whether the
    amount of the settlement could be disclosed with both parties’ consent.
    I am aware that Mr Yousefi settled his common law claim against the
    Commonwealth but I do not know the terms of that settlement. My
    understanding is that no compensation is sought on behalf of Mr Yousefi
    and, accordingly, I make no recommendation with respect to him.

  3. However, in the circumstances where compensation has been sought by
    Manoochehr Yousefi and Mrs Mehrnoosh Yousefi I consider it is
    appropriate to recommend that the Commonwealth pay compensation to each of
    them.

8.4 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.[57]

  3. I am of the view that this is the appropriate approach to take to the
    present matter. As such, so far as is possible by a recommendation for
    compensation, the object should be to place the injured party in the same
    position as if the wrong had not
    occurred.[58]

  4. Compensation claimed in respect of pain and suffering and loss of enjoyment
    (or amenities) of life would, in tort law, be characterised as heads of
    ‘non-economic loss’. Of their nature, they have no obvious monetary
    equivalent and courts therefore strive to achieve fair rather than full or
    perfect compensation in respect of such losses. Courts also tend to assess such
    damages as a global sum, rather than separately.

  5. The Yousefi family remained in immigration detention for an unnecessarily
    long time after the Department received unambiguous medical and mental health
    advice calling for the urgent removal of the family from the immigration
    detention centre setting.

  6. 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 its legality.

  7. 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 compensated
    for loss of liberty. I note, too, that the tort of false imprisonment is
    actionable without proof of damage as the right to liberty is ‘the most
    elementary and important of all common law
    rights’.[59]

  8. Mrs Mehrnoosh Yousefi and Manoochehr Yousefi each made submissions that
    seek to quantify the loss suffered by them.

  9. The principal heads of damage for a tort of this nature are injury to
    liberty (the loss of time 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).[60]

  10. Damages may also be aggravated by the circumstances of a particular case,
    for example, where a lack of bona fides or improper or unjustifiable conduct on
    the part of a respondent is
    established.[61]

  11. 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:

    1. In Taylor v
      Ruddock,
      [62]

      1. 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 NSW prisons. Although the
        award of the District Court was ultimately set aside by the High
        Court,[63] it provides useful
        indication of the calculation of damages for a person being unlawfully detained
        for a significant period of time.

      2. 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.

      3. 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 and therefore his disgrace and humiliation was less.

      4. On appeal, the Court of Appeal of New South Wales considered that the award
        was low but within the acceptable
        range.[64] The Court noted that
        ‘as the term of imprisonment extends the effect upon the person falsely
        imprisoned does progressively
        diminish’.[65]

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

    1. In Spautz v
      Butterworth,
      [67] 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.

    1. In El Masri v Commonwealth (Department of Immigration and
      Citizenship),
      [68] the Commission
      recommended the payment of $90 000 to Mr El Masri after finding that
      he had wrongfully spent 90 days in detention (to reflect his loss of liberty,
      humiliation and the mental suffering caused by his ongoing detention). The
      Commission also recommended the payment of the sum of $5 000 for his wrongful
      detention on 28 November 2006 (mental suffering, humiliation and significant
      indignity) and the sum of $10 000 for the Department’s actions in
      subjecting Mr El Masri to prolonged detention in the restrictive conditions
      of the Management Support Unit which exacerbated the negative impact that his
      ongoing detention was having on his mental health and, in particular, his
      schizoaffective
      disorder.

8.5 Recommendation
that compensation be paid

(a) Manoochehr Yousefi
  1. I have recommended that compensation should be paid to Manoochehr
    Yousefi for breaches of articles 7, 9 and 10 of the ICCPR as well as articles 3,
    19, 24, 28 and 37 of the
    CRC.[69]

(i) The
forcible transfer of Manoochehr Yousefi from Woomera Detention Centre
to Baxter Detention Centre

  1. I have found that the forcible transfer Manoochehr Yousefi from Woomera
    Detention Centre to Baxter Detention Centre violated article 10 of the
    ICCPR.

(ii) Failure to remove the Yousefi family from the
detention centre environment

  1. I have found that the practice of insisting the father of a family
    remain in an immigration detention centre as well as the act of failing to
    remove the Yousefi family from detention in an immigration detention centre,
    once the Commonwealth was aware of the deteriorating mental health of the
    family, were inconsistent with articles 7, 9 and 10 of the ICCPR in relation to
    Manoochehr Yousefi.

  2. Moreover, at various times between 2001 and 2004 the best interests of
    Manoochehr Yousefi, as a child, were not the primary consideration in all
    actions concerning him (CRC, article 3(1)).

  3. Significantly, Manoochehr Yousefi was denied the right to be protected from
    all forms of physical or mental violence (CRC, article 19(1)) and the
    Commonwealth’s failure to implement the repeated recommendations by mental
    health professionals that Manoochehr Yousefi be removed from the detention
    environment with his parents amounted to cruel, inhumane and degrading treatment
    of him in detention (CRC, article 37(a)) and a failure to treat him with
    humanity and respect for his inherent dignity (CRC, article 37(c)).

(iii) Manoochehr’s inability to access appropriate health
care and education

  1. At various times between 2001 and 2004 Manoochehr Yousefi was denied the
    right to enjoy the highest attainable standard of physical and mental health
    (CRC, article 24(1)) and the right to an appropriate education on the
    basis of equal opportunity (CRC, article 28(1)).

  2. I find that the circumstances of Manoochehr Yousefi’s detention
    between 25 May 2002 and 15 June 2004 were such as to cause him
    significant mental suffering.

  3. I consider that the Commonwealth should pay to Manoochehr Yousefi an
    amount of compensation to reflect his loss of liberty and the mental suffering
    caused by the forcible transfer, the failure to remove him from the detention
    centre environment and his inability to access appropriate health care and
    education.

  4. Manoochehr Yousefi has submitted that he should receive compensation in the
    range of $1 559 872 – $1 742 506. This sum is made up of claims
    for:

    1. future out of pocket expenses ($83 248)

    2. future economic loss ($905 624 – $1 088 258)

    3. past care ($50 000) and general damages ($350 000)
    4. interest on past general damages ($21 000)
    5. aggravated damages ($50 000)
    6. exemplary damages ($100 000).
  5. He has also sought costs.
  6. Assessing compensation and a consideration of the contingencies that ought
    to be taken into account in these matters is difficult and requires a degree of
    judgment.

  7. Compensation should be paid for the period 25 May 2002 and 15 June 2004 (752
    days). This represents the period Manoochehr Yousefi was returned to the
    immigration detention centre until he was released from the immigration
    detention centre.

  8. I consider that payment of compensation (for damages including for
    ongoing psychiatric injury, future loss of earning capacity, future treatment
    expenses and costs) in the amount $950 000 to Manoochehr Yousefi is
    appropriate.

  9. In arriving at that figure, I have had regard to:
    1. the submissions of the Complainants;

    2. Manoochehr Yousefi’s relatively young age, which means that his loss
      is likely to be experienced over a longer period than that of an older
      person;

    3. the opinions expressed by Dr Phillips and Dr Roberts regarding the ongoing
      psychological injuries of Manoochehr Yousefi, which injuries I am satisfied
      are likely to result in significant economic loss. In particular I have
      noted the following observations of these doctors:

      1. On 9 July 2010 Dr Roberts stated:

        Based on
        information which I currently have, it would seem that Mr Yousefi was
        developing normally psychologically prior to going to Woomera Detention Centre
        and was probably functioning reasonably well there
        initially.[70]

      2. Dr Phillips noted:

      Mr Yousefi lived in a psychologically
      disturbed environment during an important formative stage of his development.
      ... these stressors were inevitably going to erode his psychological resilience,
      and overwhelm his psychological defences with a breakthrough of a complex group
      of psychological
      symptoms.[71]

      1. Dr Phillips refers to Mr Yousefi becoming increasingly detached from
        society, withdrawn into his own isolated world and becoming dissociated with the
        alien world in which he lived. He began to develop frank psychological symptoms
        whilst incarcerated in Woomera and continuing at Baxter. Most prominent of the
        symptoms are attempts at suicide, many episodes of self-harming behaviour
        (generally lacerating his arms with glass or any other available object),
        dissociation by withdrawing into his own fantasy world, difficulty getting to
        sleep, recurrent nightmares, frank depressive experiences, sense of absolute
        pessimism, negative rumination, loss of mental and physical energy and loss of a
        sense of independence. He became angry and avoidant and feared for the safety of
        himself and his parents.[72]

      2. At the time of assessment by Dr Phillips on 3 December 2008, Mr Yousefi
        had been in the general community for a number of years, but:

      remains significantly incapacitated and handicapped by his various overt
      symptoms, but equally through an irreversible process of demoralization. He is
      severely burdened by his psychological problems at the present time, and it is
      improbable that the situation will change in the future.

      Diagnostically, Mr Yousefi has a persistent group of anxiety spectrum
      and depression spectrum symptoms. For the sake of diagnostic economy, the
      plaintiff is best described as having developed a post-traumatic stress disorder
      DSM 4 TR 309.81. However a diagnosis of major depressive disorder ...can also
      apply.[73]

      1. Dr Phillips thought Manoochehr now has an ingrained set of symptoms from
        which he is unlikely to recover. Those symptoms affect and will continue to
        affect his sense of self, his esteem, his capacity to relate in a satisfactory
        manner with others, his capacity to achieve educational goals consistent with
        his capability and ambition, and his capacity to pursue an efficient and
        satisfactory lifestyle.[74]

      2. Dr Roberts saw Manoochehr more recently on 3 March 2010. She concluded from
        her assessment that Mr Yousefi’s emotional functioning
        showed:

        Severe levels of depression, moderate to severe levels of anxiety and what
        are likely to be significant levels of psychopathology, despite evidence of some
        embellishment of [75]

      3. She thought the most likely diagnoses are chronic dysthymia (mental
        depression), borderline traits with severe damage to his personality functioning
        and reported ongoing dissociative phenomena. There were also symptoms consistent
        with Post Traumatic Stress
        Disorder.[76]

      4. Dr Roberts concluded the damage to Manoochehr’s psychological
        functioning was largely as a direct result of the detention centre experiences
        and trauma and he remains a vulnerable person with multiple emotional problems.
        She concludes:

      I think Mr Yousefi is someone who is likely to continue to be
      affected by stress and setbacks and is likely to need provision for ongoing
      active treatment and support, particularly whilst studying. Hopefully he will be
      able to trust in a practitioner on an ongoing basis.

      1. Dr Roberts concludes:

      Mr Yousefi is a very psychologically
      damaged man as a result of his experiences in the detention centres and the
      protracted period of time he spent there. He is unlikely to ever reach the point
      where he is symptom free. He is likely to need ongoing monitoring of his
      psychological state and
      vulnerabilities.[77]

    4. Previous recommendations made by the Commission in reports to the Minister
      for the payment of compensation under s 29(2)(c)(i) of the AHRC Act; and

    5. That the loss which includes pain and suffering and resulting disabilities
      associated with his psychiatric injuries and distress associated with being held
      in immigration detention as distinct from a residential setting should be
      discounted by between 10% and 20% due to the contribution made by events during
      the period of his non-arbitrary detention, which is not
      compensable.

  10. I also consider that the payment of $75 000 by way of aggravated
    damages is appropriate in this matter due to the volume of evidence before the
    Commission regarding the extent of the Commonwealth’s actual knowledge of
    the fact that further detention was likely to cause or exacerbate
    Manoochehr’s psychiatric injuries. In order to award aggravated damages,
    I must be satisfied that the conduct of the defendant was neither bona
    fides nor justifiable: Spautz v Butterworth and Anor (1996) 41 NSWLR 1 at
    18A per Clarke JA (Priestley and Beazley JJA agreeing); State of NSW v
    Delly
    [2007] NSWCA 303 at [21] per Ipp JA. The treatment of Manoochehr
    Yousefi was not justifiable; he was subjected to suffering and degrading
    treatment which was aggravated by the Commonwealth’s prolonged failure to
    act after it knew that Mr Yousefi’s dire circumstances were having a
    severe psychiatric effect on him and he was in great
    distress.
(b) Mrs Mehrnoosh
Yousefi
  1. I have recommended that compensation should be paid to Mrs Yousefi
    for breaches of articles 9 and 10 of the ICCPR.

(i) Failure to
remove the Yousefi family from the detention centre environment

  1. I have found that the practice of insisting the father of a family
    remain in an immigration detention centre as well as the act of failing to
    remove the Yousefi family from detention in an immigration detention centre,
    once the Commonwealth was aware of the deteriorating mental health of the
    family, were inconsistent with articles 9 and 10 of the ICCPR in relation to
    Mrs Yousefi.

  2. Compensation should be paid for the period 25 May 2002 and 15 June 2004
    (752 days). This represents the period Mrs Yousefi was returned to the
    immigration detention centre until she was released from the immigration
    detention centre.

  3. I consider that the Commonwealth should pay to Mrs Yousefi an
    amount of compensation to reflect her loss of liberty and the mental suffering
    caused by the failure to remove her from the detention centre environment.

  4. Mrs Yousefi has submitted that she should receive compensation in the
    sum of $1 081 971. This sum is made up of claims for:

    1. past expenses ($10 000), future expenses ($65 000)

    2. past economic loss ($85 000)
    3. future economic loss ($330 004)
    4. future care, ($93 667)
    5. general damages ($325 000)
    6. interest on past general damages ($22 500)
    7. aggravated damages ($50 000)
    8. exemplary damages ($100 000).
  5. She has also sought costs.
  6. I consider that payment of compensation, including for costs, in the
    amount $625 000 to Mrs Yousefi is appropriate.

  7. In arriving at that figure, I have had regard to:
    1. The submissions of the Complainants;

    2. The opinions expressed by A/Prof Carolyn Quadrio regarding
      Mrs Mehrnoosh Yousefi (report 10 August 2010) and Dr Wendy Roberts (28
      October 2010);

    3. Previous recommendations made by the Commission in reports to the Minister
      for the payment of compensation under s 29(2)(c)(i) of the AHRC Act;
      and

    4. That the loss which includes pain and suffering and resulting disabilities
      associated with her psychiatric injuries and distress associated with being held
      in immigration detention as distinct from a residential setting should be
      discounted by between 10% and 20% due to the contribution made by events during
      the period of her non-arbitrary detention, which is not
      compensable.

  8. I also consider that the payment of $50 000 by way of aggravated
    damages to Mrs Yousefi is appropriate in this matter. I am satisfied
    that the conduct of the defendant was neither bona fides nor justifiable: Spautz v Butterworth and Anor (1996) 41 NSWLR 1 at 18A per Clarke JA
    (Priestley and Beazley JJA agreeing); State of NSW v Delly [2007] NSWCA
    303 at [21] per Ipp JA.

8.6 Other
recommendations

(a) Apology
  1. In addition to compensation, I consider that it is appropriate that the
    Commonwealth provide a formal written apology to Mr Parvis Yousefi,
    Mrs Mehrnoosh Yousefi and Manoochehr Yousefi for the breaches of their
    human rights identified in this report. Apologies are important remedies for
    breaches of human rights. At least, they acknowledge the suffering of those who
    have been
    wronged.[78]
(b) Legislation
and policy
  1. I am aware that since the events the subject of the complaint took
    place (20012004), there have been a number of significant developments relating
    to the immigration detention of children, including both unaccompanied minors
    and families with children.

  2. In particular, in 2005 the Migration Act was amended to insert s 4AA, which
    ‘affirms as a principle that a minor shall only be detained as a measure
    of last resort’. In addition, the Minister was granted powers under s
    197AB of the Act, to make a Residence Determination to the effect that a person
    in immigration detention can reside at a specified place instead of being held
    in an immigration detention facility. These changes were instituted in part due
    to significant public concerns about the impact of prolonged detention of
    families and children in Australia’s immigration detention centres. The
    overarching intention of these changes was to allow for children and their
    family members to reside in community detention arrangements (Community
    Detention) instead of being held in immigration detention facilities.

  3. I am also aware that, since the events the subject of the complaint
    took place, the former Minister for Immigration and Citizenship, Senator Chris
    Evans, announced the Australian Government’s policy reforms, ‘New
    Directions in Detention’.[79] Among other things, the New Directions policy included a ‘key immigration
    value’ that children, and where possible their family members, will not be
    detained in an immigration detention centre.

  4. The Commission welcomes the above developments. However, I note that
    the ‘New Directions in Detention’ policy reforms have not been
    enshrined in legislation. Further, despite the existence of s 4AA in the
    Migration Act, children and their family members continue to be subjected to
    mandatory immigration detention in Australia.

  5. The Commission welcomes the fact that children are no longer detained in
    Australia’s high security immigration detention centres. However, children
    (both unaccompanied minors and children with accompanying family members) are
    still detained in other types of immigration detention facilities, some for many
    months.

  6. The Commission welcomed the October 2010 announcement by the Prime Minister
    and the Minister for Immigration and Citizenship that the Minister would begin
    to use his Residence Determination powers to move some unaccompanied minors and
    families with children into Community Detention. The Commission has encouraged
    the Australian Government to expand this initiative to include all children in
    detention, and to implement it as quickly as possible.

  7. Despite these recent positive developments, the Commission is seriously
    troubled that over a two year period between late 2008 and late 2010,
    significant numbers of children were held in immigration detention facilities
    instead of being placed into Community Detention arrangements.

  8. As of 4 February 2011, there were 6659 people in immigration detention in
    Australia including 1027
    children.[80] Of those children, 37
    were in Community Detention and the remainder were in various immigration
    detention facilities.

  9. The complaint highlights the devastating effects prolonged detention in
    institutional settings can have on children and on families. There is an urgent
    need to make further policy and legislative changes to ensure that mistreatment
    of the type that occurred to this family is never repeated in Australia.

  10. The Commission has made recommendations on these issues in a range of
    submissions and reports over the past decade, most importantly in the 2004
    report of its National Inquiry into Children in Immigration Detention, A last
    resort?
    [81] Many of the
    Commission’s key recommendations in this area are yet to be implemented by
    the Australian Government.

  11. Given the ongoing detention of people in immigration detention, and
    particularly children, despite the above developments, I make the following
    recommendations:

    1. Legislation should be enacted to set out minimum
    standards for conditions and treatment of people in all of Australia’s
    immigration detention facilities, including those located in excised offshore
    places. The minimum standards should be based on relevant international human
    rights standards, should be enforceable and should make provision for effective
    remedies.[82]

    2. An independent body should be charged with the function of monitoring the
    provision of health and mental health services in immigration detention. The
    Australian Government should ensure that adequate resources are allocated to
    that body to fulfil this function.

    3. The Department should implement the Residence Determination Guidelines,
    under which people with significant physical or mental health concerns, people
    who may have experienced torture or trauma and people whose cases will take a
    considerable period to substantively resolve are to be referred to the Minister
    as soon as practicable for consideration of a Community Detention
    placement.[83]

    4. The Department should implement the Residence Determination Guidelines,
    which require that all children and their accompanying family members or
    guardians be referred to the Minister for consideration of a Community Detention
    placement as soon as they are
    detained.[84]

    5. The Migration Act and other relevant Commonwealth laws should be amended
    as a matter of urgency to incorporate the following minimum requirements:

    • a presumption against the detention of children for immigration
      purposes;

    • a proscription on children being detained in Immigration Detention
      Centres;

    • that a court or independent tribunal should assess whether there is a need
      to detain children for immigration purposes within 72 hours of any initial
      detention;

    • that there should be prompt and periodic review by a court of the continuing
      detention of any child for immigration purposes;

    • if a child must be taken into immigration detention, as soon as possible
      after being detained they should be placed in Community Detention under a
      Residence Determination with any accompanying family members or guardians;

    • prescribed minimum standards of treatment for children in immigration
      detention consistent with the ICCPR, CRC and other relevant international human
      rights standards such as the United Nations Rules for the Protection of
      Juveniles Deprived of their Liberty; and

    • all courts and independent tribunals should be guided by the principle that
      the detention of children must be a measure of last resort and for the shortest
      appropriate period of time.

9 Findings and Recommendations of the Commission

9.1 Findings

For the reasons given above, I find that:

  1. The human rights of Mr Parvis Yousefi, Mrs Mehrnoosh Yousefi and
    Manoochehr Yousefi were breached by the actions of the Department.

  2. The forcible removal of Manoochehr Yousefi from Woomera Detention Centre to
    Baxter Detention Centre violated article 10 of the ICCPR.

  3. In relation to the failure to remove the Yousefi family from detention, both
    the:

    1. practice of insisting the father of a family remain in an immigration
      detention centre; and

    2. act of failing to remove the Yousefi family from detention in an immigration
      detention centre, once the Commonwealth was aware of the deteriorating mental
      health of the family;

    were inconsistent with articles 7, 9
    and 10 of the ICCPR in relation to Mr Yousefi and Manoochehr Yousefi and
    were inconsistent with articles 9 and 10 of the ICCPR in relation to
    Mrs Yousefi.

  4. As a consequence, Mr Yousefi was unjustifiably detained in a detention
    centre from 24 August 2001 until 15 June 2004 and in Mrs Yousefi and
    Manoochehr were unjustifiably detained in a detention centre from 25 May 2002
    until 15 June 2004.

  5. Because of the failure to remove the Yousefi family from
    detention:

    1. at various times between 2001 and 2004 the best interests of the child
      Manoochehr Yousefi were not a primary consideration in all actions concerning
      him (CRC, article 3(1));

    2. the Commonwealth failed to take all administrative measures to ensure
      Manoochehr Yousefi such protection and care as was necessary for his wellbeing,
      taking into account the rights and duties of his parents (CRC, article
      3(2));

    3. Manoochehr Yousefi was denied the right to be protected from all forms of
      physical or mental violence (CRC, article 19(1));

    4. the Commonwealth’s failure to implement the repeated recommendations
      by mental health professionals that Manoochehr Yousefi be removed from the
      detention environment with his parents amounted to:

      1. cruel, inhuman and degrading treatment of him in detention
        (CRC, article 37(a)); and

      2. a failure to treat him with humanity and respect for his inherent dignity
        (CRC, article 37(c)).

  6. At various times between 2001 and 2004 Manoochehr Yousefi was denied the
    right to:

    1. enjoy the highest attainable standard of physical and mental health (CRC,
      article 24(1)); and

    2. an appropriate education on the basis of equal opportunity
      (CRC, article
      28(1)).

9.2 Recommendations

  1. That the Commonwealth provide a formal written apology to Mr Parvis
    Yousefi, Mrs Mehrnoosh Yousefi and Manoochehr Yousefi for the breaches of
    their human rights identified in this report.

  2. In relation to Manoochehr Yousefi, the Commission recommends that the
    respondent pay financial compensation in the amount of $1 025 000.

  3. In relation to Mrs Mehrnoosh Yousefi, the Commission recommends that
    the respondent pay financial compensation in the amount of $675 000.

  4. Legislation should be enacted to set out minimum standards for conditions
    and treatment of people in all of Australia’s immigration detention
    facilities, including those located in excised offshore places. The minimum
    standards should be based on relevant international human rights standards,
    should be enforceable and should make provision for effective
    remedies.[85]

  5. An independent body should be charged with the function of monitoring the
    provision of health and mental health services in immigration detention. The
    Australian Government should ensure that adequate resources are allocated to
    that body to fulfil this function.

  6. The Department should implement the Residence Determination Guidelines,
    under which people with significant physical or mental health concerns, people
    who may have experienced torture or trauma and people whose cases will take a
    considerable period to substantively resolve are to be referred to the Minister
    as soon as practicable for consideration of a Community Detention
    placement.[86]

  7. The Department should implement the Residence Determination Guidelines,
    which require that all children and their accompanying family members or
    guardians be referred to the Minister for consideration of a Community Detention
    placement as soon as they are
    detained.[87]

  8. The Migration Act and other relevant Commonwealth laws should be amended as
    a matter of urgency to incorporate the following minimum requirements:

    • a presumption against the detention of children for immigration
      purposes;

    • a proscription on children being detained in Immigration
      Detention Centres;

    • that a court or independent tribunal should assess whether there
      is a need to detain children for immigration purposes within 72 hours of any
      initial detention;

    • that there should be prompt and periodic review by a court of the
      continuing detention of any child for immigration purposes;

    • if a child must be taken into immigration detention, as soon as
      possible after being detained they should be placed in Community Detention under
      a Residence Determination with any accompanying family members or
      guardians;

    • prescribed minimum standards of treatment for children in
      immigration detention consistent with the ICCPR, CRC and other relevant
      international human rights standards such as the United Nations Rules for the
      Protection of Juveniles Deprived of their Liberty; and

    • all courts and independent tribunals should be guided by the
      principle that the detention of children must be a measure of last resort and
      for the shortest appropriate period of time.

10 Department’s response to the
recommendations

  1. On 9 June 2011, I provided a Notice under s 29(2)(a) of the AHRC Act
    outlining my findings and recommendations in relation to the complaint made by
    Mr Parvis Yousefi, Mrs Mehrnoosh Yousefi and Manoochehr Yousefi
    against the Commonwealth.

  2. By letter dated 8 July 2011 the Department provided the following response
    to my findings and recommendations:

    Recommendation A: That the
    Commonwealth provide a formal written apology to Mr Parvis Yousefi,
    Mrs Mehrnoosh Yousefi and Manoochehr Yousefi for the breaches of their
    human rights identified in the report.

    The Department notes the President’s recommendation to provide a formal
    written apology to Mr Parvis Yousefi, Mrs Mehrnoosh Yousefi and
    Manoochehr Yousefi. The Department will consider this recommendation in light of
    ongoing litigation involving Mrs Mehrnoosh Yousefi and Manoochehr
    Yousefi.

    Recommendation B: In relation to Manoochehr Yousefi, that the respondent
    pay financial compensation in the amount of $1,025,000.

    The Department notes the President’s recommendations in regards to
    compensation payable to Manoochehr Yousefi and Mrs Mehrnoosh Yousefi.
    Manoochehr Yousefi and Mrs Merhnoosh Yousefi have separate, ongoing
    compensation claims in the Supreme Court of NSW involving the Commonwealth and
    detention service providers. These recommendations will be considered in light
    of that litigation.

    Recommendation C: In relation to Mrs Mehrnoosh Yousefi, that the
    respondent pay financial compensation in the amount of $675,000.

    Please refer to the response to Recommendation B.

    Recommendation D: Legislation should be enacted to set out minimum
    standards for conditions and treatment of people in all of Australia’s
    immigration detention facilities, including those located in excised offshore
    places. The minimum standards should be based on relevant international human
    rights standards, should be enforceable and should make provision for effective
    remedies.

    Recommendations regarding any proposed new or supplementary legislation are
    properly a matter for the Australian Government to consider and not a subject on
    which the Department can comment.

    The Government’s New Directions in Detention policy provides key values
    to guide detention policy and practices.

    In addition, there are policy instructions addressing the treatment and
    conditions of people in Australian immigration detention facilities, including
    those in excised offshore places, as set out in the Detention Services Manual
    (DSM). The DSM is accessible by all staff via LEGEND, the Department’s
    electronic database of migration and citizenship legislation, policy
    instructions, associated forms and other documents.

    Issues addressed by the DSM include the provision of general and mental
    health services and education. These policy instructions have been developed
    consistently with Australia’s international human rights obligations
    through a process which involved consultation with agencies, including the
    Commonwealth Ombudsman and the AHRC (then HREOC).

    These principles are also reflected in the Department’s contract with
    its detention service provider, Serco, and its contracted health services
    manager, International Health and Medical Services (IHMS).

    The Department also notes that, as set out in the DSM, Chapter 1 –
    section 3, there are three key service delivery values that underpin the
    provision of services within the community and immigration detention services
    environment. These are:

    • Respect for human dignity;
    • Fair and reasonable treatment within the law; and
    • Appropriate services.

    In particular, section 3.1 Respect for
    Human Dignity
    states the following:

    This value supports Australia’s international obligations. Those
    providing services to persons in immigration detention and in the community must
    be aware of their responsibilities in regards to meeting Australia’s human
    rights obligations under the following international conventions:

    • International Covenant on Civil and Political Rights;
    • International Covenant on Economic, Social and Cultural Rights;
    • 1951 UN Convention relating to the Status of Refugees and the 1967 Protocol;
    • UN Convention on the Rights of the Child;
    • UN Convention against Torture and Other Cruel, Inhuman or Degrading
      Treatment or Punishment;
    • Universal Declaration of Human Rights; and
    • Vienna Convention on Consular Relations.

    Recommendation E: An
    independent body should be charged with the function of monitoring the provision
    of health and mental health services in immigration detention. The Australian
    Government should ensure that adequate resources are allocated to that body to
    fulfil this function.

    This matter has been addressed. The Detention Health Advisory Group (DeHAG)
    was convened in March 2006. DeHAG and its Mental Health SubGroup provide the
    Department with independent expert advice to design, develop, implement and
    monitor health and mental health care services and policies for people in
    immigration detention.

    The DeHAG consists of key health and mental health professional and consumer
    group organisations, including:

    • The Australian Medical Association;
    • The Royal Australian College of General Practitioners;
    • The Mental Health Council of Australia;
    • The Australian Psychological Society;
    • The Forum of Australian Services for the Survivors of Torture and
      Trauma;
    • The Victorian Health Promotion Foundation;
    • The Royal Australian and New Zealand College of Psychiatrists;
    • The Royal College of Nursing Australia;
    • The Public Health Association of Australia; and
    • The Australian Dental Association.

    In addition, the Commonwealth
    Ombudsman’s Office representative has observer status on the DeHAG.

    The Department works with the DeHAG and other key health stakeholders to
    improve the physical and mental health of people under the Department’s
    care. For example, in response to DeHAG recommendations, the Department has
    amended the policy instructions and procedures set out in the DSM for mental
    health screening of people in detention.

    The Department has also made changes to its policy instructions (as reflected
    in the DSM) and its practices in response to DeHAG’s findings and
    recommendations concerning Mental Health Screening practices.

    The Department has recently contracted an external provider to assist in the
    review of clinical governance processes. This includes the development of a
    health audit tool and a pilot clinical review of health services provided by
    IHMS on Christmas Island. Following the finalisation of this review, the
    Department will investigate the option of conducting similar clinical reviews at
    other immigration detention facilities.

    Recommendation F: The Department should implement the Residence
    Determination Guidelines, under which people with significant physical or mental
    health concerns, people who may have experienced torture or trauma and people
    whose cases will take a considerable period to substantively resolve are to be
    referred to the Minister as soon as practicable for consideration of a Community
    Detention placement.

    The Department notes this recommendation. The Government’s policy is
    that the following people should be referred as soon as practicable for
    consideration for Residence Determination:

    • unaccompanied minors;
    • minors and their accompanying family members;
    • family groups with pregnant women;
    • single, adult females;
    • persons who may have experienced torture or trauma;
    • persons with significant physical or mental health problems;
    • cases which will take a considerable period to substantively resolve;
      and
    • other cases with unique or exceptional
      characteristics.

    Recommendation G: The Department should
    implement the Residence Determination Guidelines, which require that all
    children and their accompanying family members or guardians be referred to the
    Minister for consideration of a Community Detention placement as soon as they
    are detained.

    The Department notes this recommendation. The Government’s policy is
    that minors and their accompanying family members should be referred for
    consideration of Residence Determination as soon as practicable after being
    detained at an alternative immigration detention facility.

    Recommendation H: The Migration Act 1958 (Cth) (Migration Act) and other
    relevant Commonwealth laws should be amended as a matter of urgency to
    incorporate the following minimum requirements:

    (i) a presumption against the detention of children for immigration
    purposes;

    (ii) a proscription on children being detained in Immigration Detention
    Centres;

    (iii) that a court or independent tribunal should assess whether there is
    a need to detain children for immigration purposes within 72 hours of any
    initial detention;

    (iv) that there should be prompt and periodic review by a court of the
    continuing detention of any child for immigration purposes;

    (v) if a child must be taken into immigration detention, as soon as
    possible after being detained they should be placed in Community Detention under
    a Residence Determination with any accompanying family members or
    guardians;

    (vi) prescribed minimum standards of treatment for children in immigration
    detention consistent with the ICCPR, CRC and other relevant international human
    rights standards such as the United Nations Rules for the Protection of
    Juveniles Deprived of their Liberty; and

    (vii) all courts and independent tribunals should be guided by the
    principle that the detention of children must be a measure of last resort and
    for the shortest appropriate period of time.

    The Department notes this recommendation and will not be taking any further
    action.

    The Government takes its international obligations seriously and acts
    consistently to comply with all its treaty obligations, including the Convention
    on the Rights of the Child. As outlined in the response to Recommendation E, the
    DSM is directly related to the treatment of children in detention. It was
    developed consistently with Australia’s international human rights
    obligations through a process which involved consultation with agencies,
    including the Commonwealth Ombudsman and the AHRC (then HREOC).

    The Government’s policy has always been that the least restrictive form
    of immigration detention available should be used for those people who cannot be
    released into the community.

    The placement of minors and their accompanying families in community-based
    accommodation (Residence Determination) is the Government’s priority.
    However, there will be a continued need to accommodate some minors and their
    families in alternative places of detention where essential initial processing
    needs to occur to identify minors and family groups, to assess any special cases
    and support needs, and to identify and arrange appropriate accommodation and
    services to support movement from a more restrictive detention environment.

    Immigration detention policy and the operation of detention facilities in
    Australia are subject to close scrutiny from both domestic and international
    bodies. In addition, persons in immigration detention have capacity to make
    complaints and have these investigated and assessed.

I report accordingly to the Attorney-General.
Catherine Branson
President

Australian Human Rights Commission

July 2011

Appendix 1: Summary of the human rights in the
ICCPR and CRC relevant to this inquiry

The human rights in the ICCPR and CRC relevant to this inquiry are listed in
the table below.

Human rights
Convention Article
ICCPR
The prohibition on cruel, inhuman and degrading treatment
Article 7
The right to be treated with humanity and respect for the inherent dignity
of the human person
Article 10
The right to liberty
Article 9
CRC
The best interests of the child are to be a primary consideration
Article 3(1)
Obligation to take steps necessary for the well-being of children
Article 3(2)
The protection of children from mental violence in detention
Article 19
Obligation to provide children with the highest attainable standard of
health
Article 24
The right of the child to education on the basis of equal opportunity
Article 28
Obligation to treat children in detention in a manner appropriate for their
age and developmental needs
Article 37

Appendix 2: Summary of jurisprudence in relation
to the ICCPR and CRC

International Covenant on Civil and Political Rights

Article 7

[N]o one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.

  1. Article 7 of the ICCPR prohibits cruel, inhuman and degrading treatment. For
    detention to violate article 7 there must be some element of reprehensibility in
    the treatment of detainees, such as, an excessive use of force or a
    reprehensible failure to provide medical and mental health care
    facilities.

Provision of appropriate medical and mental health
care facilities

  1. The Human Rights Committee has held that knowledge that prolonged detention
    is causing a person to suffer mental health problems may be a breach of article
    7. In C v Australia,[88] a
    finding of ‘cruel, inhuman and degrading treatment’ under article 7
    of the ICCPR was made where an immigration detainee’s prolonged arbitrary
    detention was reported as contributing to his mental health problems and the
    authorities were aware of this but delayed releasing the detainee from
    immigration detention.

Use of force

  1. In relation to article 7 the Commission must consider whether the decision
    to use force and whether the degree of force used was inconsistent with the
    prohibition on inhumane and degrading treatment. In considering this the
    Commission should have regard to the Department’s knowledge of the
    respective mental illnesses of the Complainants.

Article
10

(1) [A]ll persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person.

  1. Article 10(1) of the ICCPR requires States to treat all persons deprived of
    their liberty ‘with humanity and respect for the inherent dignity of the
    human person’. This requirement is generally applicable to persons
    deprived of their liberty, including in immigration detention.

  2. Article 10(1) imposes a positive obligation on State parties to take actions
    to prevent inhumane treatment of detained persons. Establishing a breach of
    article 10, however, requires something more than the mere fact of
    deprivation of liberty.[89] A
    complainant must demonstrate that he or she has suffered more than just the
    condition of detention to substantiate a breach of the right to be treated
    humanely in detention under article 10(1) of the ICCPR.

  3. Ultimately, whether there has been a breach of article 10(1) will require
    consideration of the facts of each case. The question to ask is whether the
    facts demonstrate a failure by the State to treat detainees humanely and with
    respect for their inherent dignity as a human being.

  4. In determining this question regard should be had to the jurisprudence of
    the United Nations Human Rights Committee (UNHRC) and the Standard Minimum Rules
    for the Treatment of Prisoners[90] (the Standard Minimum Rules); and the Body of Principles for the Protection of
    all Persons under Any Form of Detention (the Body of
    Principles).[91]

  5. The UNHRC has indicated that compliance with the Standard Minimum Rules and
    the Body of Principles is the minimum requirement for compliance with the
    obligation imposed under article 10(1) that people in detention be treated
    humanely.

Provision of appropriate medical and mental health care
facilities

  1. Article 10(1) places a positive obligation on Australia to provide a certain
    level of basic services, including medical and psychological care. The content
    of this obligation is informed by principle 24 of the Body of Principles, which
    states:

    A proper medical examination shall be offered to a detained
    or imprisoned person as promptly as possible after his admission to the place of
    detention or imprisonment, and thereafter medical care and treatment shall be
    provided whenever necessary. This care and treatment shall be provided free of
    charge.

  2. The Standard Minimum Rules state:

    22. (1) At every institution
    there shall be available the services of at least one qualified medical officer
    who should have some knowledge of psychiatry. The medical services should be
    organized in close relationship to the general health administration of the
    community or nation. They shall include a psychiatric service for the diagnosis
    and, in proper cases, the treatment of states of mental abnormality.

    (2) Sick prisoners who require specialist treatment shall be transferred to
    specialized institutions or to civil hospitals. Where hospital facilities are
    provided in an institution, their equipment, furnishings and pharmaceutical
    supplies shall be proper for the medical care and treatment of sick prisoners,
    and there shall be a staff of suitable trained officers.

    ...

    24. The medical officer shall see and examine every prisoner as soon as
    possible after his admission and thereafter as necessary, with a view
    particularly to the discovery of physical or mental illness and the taking of
    all necessary measures; the segregation of prisoners suspected of infectious or
    contagious conditions; the noting of physical or mental defects which might
    hamper rehabilitation; and the determination of the physical capacity of every
    prisoner for work.

    25. (1) The medical officer shall have the care of the physical and mental
    health of the prisoners and should daily see all sick prisoners, all who
    complain of illness, and any prisoner to whom his attention is specially
    directed.

    (2) The medical officer shall report to the director whenever he considers
    that a prisoner’s physical or mental health has been or will be
    injuriously affected by continued imprisonment or by any condition of
    imprisonment.

    26. (1) The medical officer shall regularly inspect and advise the director
    upon:

    • (a) the quantity, quality, preparation and service of food;
    • (b) the hygiene and cleanliness of the institution and the prisoners;
    • (c) the sanitation, heating, lighting and ventilation of the
      institution;
    • (d) the suitability and cleanliness of the prisoners’ clothing and
      bedding; and
    • (e) the observance of the rules concerning physical education and sports,
      in cases where there are no technical personnel in charge of these
      activities.

    (2) The director shall take into consideration the
    reports and advice that the medical officer submits according to rules 25 (2)
    and 26 and, in case he concurs with the recommendations made, shall take
    immediate steps to give effect to those recommendations; if they are not within
    his competence or if he does not concur with them, he shall immediately submit
    his own report and the advice of the medical officer to higher authority.

  3. The United Nations principles for the protection of persons with mental
    illness and the improvement of mental health care make it clear that people with
    mental illness should have the right to be treated and cared for, as far as
    possible, in the community in which they
    live.[92]

  4. Standard Minimum Rule 82 specifically addresses the situation of mentally
    ill persons who are held in detention. It provides:

    B. INSANE AND
    MENTALLY ABNORMAL PRISONERS

    82. (1) Persons who are found to be insane shall not be detained in prisons
    and arrangements shall be made to remove them to mental institutions as soon as
    possible.

    (2) Prisoners who suffer from other mental diseases or abnormalities shall be
    observed and treated in specialized institutions under medical management.

    (3) During their stay in a prison, such prisoners shall be placed under the
    special supervision of a medical officer.

    (4) The medical or psychiatric service of the penal institutions shall
    provide for the psychiatric treatment of all other prisoners who are in need of
    such treatment.

    83. It is desirable that steps should be taken, by arrangement with the
    appropriate agencies, to ensure, if necessary, the continuation of psychiatric
    treatment after release and the provision of social-psychiatric after-care.

  5. Under article 10, the Department is obliged to take positive actions to
    prevent inhumane treatment of detained persons, such as examining alternative
    options to detention and providing appropriate medical and mental health care
    facilities.[93]

Use
of force against detainees

  1. In relation to article 10(1) the Commission must consider whether the
    decision to use force and whether the degree of force used was inconsistent with
    the right of a detained person to be treated with humanity and respect for the
    inherent dignity of the human person.

  2. Standard Minimum Rule 54(1) describes the circumstances in which force may
    be used against detainees as follows:

    (1) Officers of the
    institutions shall not, in their relations with the prisoners, use force except
    in self-defence or in cases of attempted escape, or active or passive physical
    resistance to an order based on law or regulations. Officers who have recourse
    to force must use no more than is strictly necessary and must report the
    incident immediately to the director of the institution.

Interaction between article 7 and article 10(1)

  1. The allegations concerning the use of force against the Complainants in the
    transfer from Woomera Detention Centre to Baxter Detention Centre and concerning
    the failure to remove the Complainants from the detention centre environment
    raise for consideration the application of articles 7 and 10(1) of the
    ICCPR.

  2. In the case of a detained person, there is an overlap between article 7 and
    article 10(1) in that inhuman or degrading treatment or punishment under article
    7 will also constitute a failure to treat that person with humanity and respect
    for the inherent dignity of the human person under article 10. The UNHRC has
    indicated that the threshold for establishing a breach of article 7 is higher
    than the threshold for establishing a breach of article
    10.[94]

  3. Professor Manfred Nowak observes that:

    [w]hereas article 7
    primarily is directed at specific, usually violent attacks on personal
    integrity, article 10 relates more to the general state of a detention facility
    or some other closed institution and to the specific conditions of detention. As
    a result, article 7 principally accords a claim that State organs refrain from
    certain action (prohibition of mistreatment), while article 10 also covers
    positive State duties to ensure certain
    conduct.[95]

  4. Moreover, the assessment of whether the treatment of a person is
    inconsistent with article 7 or 10 depends on all the circumstances of the case,
    such as the duration and manner of the treatment, its physical or mental effects
    as well as the sex, age and state of health of the victim. Accordingly, the
    assessment of whether the treatment is inconsistent with article 7 or 10 of the
    ICCPR is in part a subjective evaluation. Factors such as the victim’s age
    and mental health will aggravate the effect of certain treatment so as to bring
    that treatment within article 7 or
    10.[96]

Article 9

(1) Everyone has the right of 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 procedures as are
established by law.

  1. Article 9(1) of the ICCPR protects the right to liberty and guarantees that
    ‘no one shall be subjected to arbitrary arrest or detention’.
    Detention includes immigration
    detention.[97]

  2. Under the ICCPR, ‘lawful detentions may be arbitrary, if they exhibit
    elements of inappropriateness, injustice, or lack of predictability or
    proportionality’.[98] Prolonged detention and even indefinite detention may be lawful where a detainee
    does not have a visa,[99] however,
    they might still be arbitrary.

  3. Importantly, in relation to immigration detention, prolonged detention and
    even indefinite detention may be lawful where a detainee does not have a
    visa,[100] however, they might
    still be arbitrary because the requirement that detention not be
    ‘arbitrary’ is separate and distinct from the requirement that a
    detention be lawful. In Van Alphen v The
    Netherlands,
    [101] the 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.[102]

  4. A similar view was expressed in A v
    Australia,
    [103] 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.[104]

  5. In Kwok v
    Australia
    [105] 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.

  6. In MIMIA v Al
    Masri,
    [106] 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.[107]

  7. This broad view of arbitrariness has also been applied in the case of Manga v
    Attorney-General,
    [108] 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.[109]

  8. In another New Zealand case dealing with arbitrary arrest and detention, Neilsen v
    Attorney-General,
    [110] 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.[111]

  9. 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 [art] 5(1) and the notion of
    ‘arbitrariness’ in [art] 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.[112]

  10. 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.’[113]

  11. Finally, a person’s detention that is initially not arbitrary may come
    to breach article 9(1) of the ICCPR by reason of subsequent events which
    change the nature of the
    detention.[114]

Convention
on the Rights of the Child

Article 3

(1) In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative authorities
or legislative bodies, the best interests of the child shall be a primary
consideration.

(2) States Parties undertake to ensure the child such protection and care
as is necessary for his or her well-being, taking into account the rights and
duties of his or her parents, legal guardians, or other individuals legally
responsible for him or her, and, to this end, shall take all appropriate
legislative and administrative measures.

  1. Article 3(1) of the CRC can be summarised as relevantly providing that in
    all actions concerning children undertaken by administrative authorities, the
    best interests of the child shall be a primary consideration.

  2. Article 3(2) of the CRC relevantly requires the Commonwealth to take all
    administrative measures to ensure the child such protection and care as is
    necessary for his or her wellbeing, taking into account the rights and duties of
    his or her parents. A child’s mental health is directly constitutive of
    his or her wellbeing.

  3. The obligation in article 3(1) expressly covers all actions concerning
    children, including “decisions by courts of law, administrative
    authorities, legislative bodies and both public and private social-welfare
    institutions”. This has been explained by the Committee on the Rights of
    the Child in its General Comment No 5.

    The article refers to actions
    undertaken by “public or private social welfare institutions, courts of
    law, administrative authorities or legislative bodies”. The principle
    requires active measures throughout Government, parliament and the judiciary.
    Every legislative, administrative and judicial body or institution is required
    to apply the best interests principle by systematically considering how
    children’s rights and interests are or will be affected by their decisions
    and actions – by, for example, a proposed or existing law or policy or
    administrative action or court decision, including those which are not directly
    concerned with children, but indirectly affect
    children.[115]

  4. In Minister of State for Immigration and Ethnic Affairs v Ah Hin
    Teoh
    [116] a majority in the
    High Court rejected the argument that the provisions of article 3 were intended
    to apply only to ‘actions’ that were directed at children and not
    those that merely have consequences for
    children.[117] Their Honours
    stated that the objects of the CRC will best be achieved by giving the word
    ‘concerning’ a wide-ranging application.

  5. Article 3(1) does not require the best interests of the child to be the sole
    consideration in all decision-making.

  6. The UNHCR, in its Guidelines on Determining the Best Interests of the Child
    states:

    • the best interests must be the determining factor for specific
      actions, notably adoption (article 21) and separation of a child from parents
      against their will (article 9);

    • the best interests must be a primary (but not the sole)
      consideration for all other actions affecting children, whether undertaken by
      public or private social welfare institutions, courts of law, administrative
      authorities or legislative bodies (article
      3).[118]
  7. In Teoh, Mason CJ and Deane J noted:

    The article is
    careful to avoid putting the best interests of the child as the primary
    consideration; it does no more than give those interests first importance along
    with other considerations as may, in the circumstances of a given case, require
    equal, but not paramount,
    weight.[119]

Later, their Honours stated:

    A decision-maker with an eye to the principle enshrined in the Convention
    would be looking to the best interests of the children as a primary
    consideration, asking whether the force of any other consideration outweighed
    it.[120]

  1. The UNICEF Implementation Handbook for the Convention on the Rights of the
    Child provides the following commentary on article 3:

    The wording of
    article 3 indicates that the best interests of the child will not always be the
    single, overriding factor to be considered; there may be competing or
    conflicting human rights interests....

    The child’s interests, however, must be the subject of active
    consideration; it needs to be demonstrated that children’s interests have
    been explored and taken into account as a primary
    consideration.[121]

  2. The England and Wales High
    Court[122] and the United Kingdom
    Supreme Court[123] have held that
    while a primary consideration is not the same as the paramount or determinative
    consideration; it must at least mean a consideration of the first importance.

  3. In order to comply with article 3(1), the Department must specifically
    address its attention to the impact of detention on children, and make their
    best interests a primary consideration in deciding what laws will regulate
    immigration in Australia and how those laws should be administered. In order to
    comply with article 3(1), laws in relation to immigration detention must permit,
    and the Department must make, individualised decisions regarding the best
    interests of each child. The administering authorities must address their minds
    to the specific circumstances of each child. Such individualised decisions
    should relate not only to the question of whether or not a child needs to be
    detained, but also to the circumstances and manner in which that detention is to
    take place.

  4. There are a variety of factors that make up what may or may not be in the
    best interests of the child but they include the liberty of the child and the
    protection of family unity (article 9(1), CRC).

Article
19

(1) States Parties shall take all appropriate legislative, administrative,
social and educational measures to protect the child from all forms of physical
or mental violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual abuse, while in the care of
parent(s), legal guardian(s) or any other person who has the care of the child.

  1. Australia is obliged under article 19(1) of the CRC to take all appropriate
    administrative measures to protect children from all forms of physical or mental
    violence, abuse or neglect while in the care of parent(s) or any other person
    who has the care of the child.

While in the care of...

  1. Article 19 is not limited to violence perpetrated solely by
    caregivers in a personal
    context.[124]

  2. The phrase ‘while in the care of parent(s), legal guardian(s)’
    indicates that the primary focus of the article is ‘intra-familial’
    situations. This was recognised by the Australian Human Rights Commission in a
    2005 report which stated that ‘the obligations [under article 19] imposed
    on persons or bodies other than families is less demanding, based in part on
    their less extensive knowledge of the circumstances of the child in their
    care’.[125]

  3. The Committee on the Rights of the Child recognises only three conditions
    for children: emancipated, in the care of primary or proxy caregivers or in the
    defacto care of the State.[126] Children of migrating parents[127] and unaccompanied children outside their country of origin are considered
    children without obvious primary or proxy caregivers for whom the State is
    obliged to take responsibility as the defacto
    caregiver.[128]

  4. The phrase ‘any other person who has the care of the child’
    appears to broaden the application of the article to cover personnel of
    institutions responsible for the care or protection of
    children.[129] The phrase
    ‘any other person who has the care of the child’ is sufficiently
    broad to include all institutional
    settings[130] such as an
    immigration detention centre.

  5. The Committee on the Rights of the Child states that caregivers include
    those with clear, recognised legal, professional-ethical and/or cultural
    responsibility for the safety, health, development and well-being of the child.
    This extends to institutional personnel (governmental or non-governmental) in
    the position of caregivers, including responsible adults in juvenile justice and
    residential care settings. In the case of unaccompanied children, the State is
    the de facto
    caregiver.[131]

Violence

  1. The Committee on the Rights of the Child has stated that the term
    ‘violence’ ‘must not be used in any way to minimise the impact
    of, and need to address nonphysical and/or non-intentional forms of harm (such
    as neglect and psychological
    maltreatment)’.[132]

Mental
violence

  1. Mental violence includes humiliation, harassment, verbal abuse, the effects
    of isolation and other practices that cause or may result in psychological
    harm.[133]

  2. It also includes neglecting mental health, medical and educational needs and
    placement in solitary confinement, isolation or humiliating or degrading
    conditions of detention.[134]

  3. The AHRC has found that mental violence will include a situation in which a
    child in immigration witnessed acts of physical violence and/or was exposed to
    acts or practices that caused psychological
    harm.[135]

Neglect

  1. Neglect means the failure to meet children’s physical and
    psychological needs, protect them from danger, or obtain medical, birth
    registration or other services when those responsible for children’s care
    have the means, knowledge and access to services to do so. It includes:

    • physical neglect (including failure to protect a child from
      harm);
    • psychological or emotional neglect (including exposure to
      intimate partner violence);
    • neglect of physical or mental health (withholding essential
      medical care); and
    • educational neglect (failure to comply with laws requiring
      caregivers to secure their children’s education through attendance at
      school).[136]
  2. The UNICEF Implementation Handbook states that ‘protecting children
    from selfharm, including suicide and attempted suicide, clearly comes within the
    ambit of article
    19’.[137]

Article
24

(1) States Parties recognize the right of the child to the enjoyment of
the highest attainable standard of health and to facilities for the treatment of
illness and rehabilitation of health. States Parties shall strive to ensure that
no child is deprived of his or her right of access to such health care services.

(2) States Parties shall pursue full implementation of this right and, in
particular, shall take appropriate measures: ...

(b) To ensure the provision of necessary medical assistance and health
care to all children with emphasis on the development of primary health
care.

  1. Under article 24 of the CRC, the Commonwealth recognizes the right of the
    child to the enjoyment of the ‘highest attainable standard of
    health’ and to facilities for the treatment of illness and rehabilitation
    of health.

  2. The Commonwealth is obliged under article 24 of the CRC ‘to strive to
    ensure that no child is deprived of his or her right of access to such health
    care services’. Health care services include mental health treatment.

  3. The Committee on the Rights of the Child has observed that State Parties to
    the CRC have the obligation to:

    ensure that health services,
    including counselling and health services for mental and sexual and reproductive
    health, of appropriate quality and sensitive to the adolescents’
    concerns
    , are available to all
    adolescents’.[138] (emphasis
    added)

Unaccompanied children

  1. Respect for the best interests of the child requires that where an
    unaccompanied child has been placed for the ‘purposes of care, protection
    or treatment of his or her physical or mental health’, the child has a
    right to periodic review of their treatment and all other circumstances relevant
    to their placement.[139]

  2. Unaccompanied children have the right to the same access to health care as
    national children. In ensuring equal access, the State must take into account
    the particular vulnerabilities of unaccompanied children, including that they
    may have experienced trauma and
    violence.[140]

Article
28

(1) State Parties recognize the right of the child to education and with a
view to achieving this right progressively and on the basis of equal
opportunity, they shall, in particular:

(a) Make primary education compulsory and available free to all;

...

(e) Take measures to encourage regular attendance at schools and the
reduction of drop-out rates.

  1. Article 28 of the CRC applies equally to all children within Australia,
    regardless of whether they are in immigration detention. Article 29 of the CRC
    explains that the main purpose of education for children is ‘the
    development of the child’s personality, talents and mental and physical
    abilities to their fullest potential’.

  2. While no absolute standard of education is required by article 28 of the
    CRC, it is clear that it must be made available on the basis of ‘equal
    opportunity’. This means that there must be no lesser provision of
    education for any one group of children, regardless of nationality, immigration
    status or how they arrived in Australia.

  3. Further the Convention against Discrimination in
    Education
    [141] to which
    Australia is a party prohibits the Commonwealth from among other things
    ‘limiting any person or group of persons to education of an inferior
    standard’.[142] It also
    requires the Commonwealth to give ‘foreign nationals resident in Australia
    the same access to education as that it gives to [its] own
    nationals’.[143]

  4. Similarly, the UN Committee on the Rights of the Child is of the view that
    children who have had their refugee status applications rejected are entitled to
    education commensurate to that available to other children resident within that
    country.[144]

Unaccompanied
children

  1. The Committee on the Rights of the Child has emphasised the need for
    unaccompanied children to be able to access education through all phases of the
    displacement cycle. The Commission states that ‘every unaccompanied and
    separated child, irrespective of status, shall have full access to education in
    the country that they have
    entered’.[145]

Children
in detention

  1. High standards of education apply to children who are in forms of
    detention.[146]

  2. The Special Rapporteur on the right to education has recommended that
    special attention be given to ensuring that all children, including children in
    detention, subject to compulsory education have access to, and participate in,
    such
    education.[147]

Article
37

(a) No child shall be subjected to torture or other cruel, inhuman or
degrading treatment or punishment.

(b) No child shall be deprived of his or her liberty unlawfully or
arbitrarily. The arrest, detention or imprisonment of a child shall be in
conformity with the law and shall be used only as a measure of last resort and
for the shortest appropriate period of time; ...

(c) Every child deprived of liberty shall be treated with humanity and
respect for the inherent dignity of the human person and in a manner which takes
into account the needs of persons of his or her age.

  1. The UN Committee on the Rights of the Child has indicated that the detailed
    standards set out in the United Nations Standard Minimum Rules for the
    Administration of Juvenile Justice (the Beijing Rules) and the United Nations
    Rules for the Protection of Juveniles Deprived of their Liberty (the UN Rules)
    are relevant to the interpretation of article 37.

  2. Article 37(b) of the CRC provides that ‘no child shall be deprived of
    his or her liberty unlawfully or arbitrarily’. The CRC goes further than
    the general prohibition on arbitrary and unlawful detention in article 9(1) of
    the ICCPR, by adding that detention of children should be a ‘measure of last resort and for the shortest appropriate period of
    time’.

  3. There are a number of elements to article 37(b):
    • the detention of a child must be in conformity with law;
    • the detention of a child must not be arbitrary (this is a
      distinct requirement, in addition to the requirement of lawfulness);
    • the detention of a child must be used only as a measure of last
      resort; and
    • the detention of a child must be for the shortest appropriate
      time.
  4. Again, the Committee on the Rights of the Child regards the UN and Beijing
    Rules as relevant to the interpretation of article 37(b), which is appropriate
    given that article 37(b) was based upon aspects of those
    standards.[148] In that context,
    it is relevant to note that the UN Rules state that detention ‘should be
    used as a last resort’ and ‘be limited to exceptional
    cases’[149] and that the
    Beijing Rules reiterate that any detention should be
    brief[150] and state this should
    only occur where the child has committed ‘a serious act involving
    violence’.[151]

  5. The travaux préparatoires to the CRC indicate that article
    37(b) was also based upon the similarly worded article 9(1) of the ICCPR. As
    such, it is relevant to consider the jurisprudence of the UNHRC regarding that
    provision. As discussed above, in A v Australia, the Human Rights
    Committee stated that detention was arbitrary if it was ‘not necessary in
    all the circumstances of the case’ and if it was not a proportionate means
    to achieving a legitimate
    aim.[152]

  6. While there is no set definition of the ‘shortest appropriate
    period’, when read with the ‘last resort’ principle it is
    clear that the Commonwealth must consider any less restrictive alternatives that
    may be available to an individual child in deciding whether and/or for how long
    a child is detained. Detention of children should only occur in exceptional
    cases.[153] If, after considering
    the available alternatives, detention is considered to be appropriate in the
    specific circumstances, then it should be as short as possible.

  7. The UN Committee on the Rights of the Child has emphasised the importance of
    finding alternatives to the detention of
    children.[154] The UNHCR sets out
    various alternatives in its Detention Guidelines including release subject to
    reporting, residency requirements or the provision of a surety. The UNHCR
    Detention Guidelines also state that ‘minors who are asylum seekers should not be detained’ and that ‘all appropriate alternatives to
    detention should be considered in the case of children accompanying their
    parents’.[155]

  8. The initial detention of children who arrive in Australia without a visa is
    not unlawful because it is prescribed in the Migration Act. However, mandatory
    detention under the Migration Act is only lawful for as long as the detention is
    ‘reasonably capable of being seen as necessary for the purposes of
    deportation or necessary to enable an application for an entry permit to be made
    and considered’.[156] If the
    immigration detention goes beyond those purposes it is punitive and therefore
    unlawful. Moreover, ‘lawful’ detention might still be
    ‘arbitrary’ because of elements of injustice, inappropriateness,
    unreasonableness or indeterminacy or if it is ‘not necessary in all the
    circumstances of the case’ or not a proportionate means to achieving a
    legitimate aim.[157] Furthermore,
    even if the initial detention is not arbitrary, a subsequent period of detention
    may become arbitrary, for example, because of the length of the detention or
    because the detention ceases to be a proportionate
    response.[158]

  9. The UNHCR, which has applied the jurisprudence of the ICCPR and the CRC to
    the Refugee Convention, has held that the detention of child asylum seekers will
    never be reasonable, necessary, proportionate or appropriate. The UNHCR
    Detention Guidelines state unequivocally that ‘minors who are asylum
    seekers should not be
    detained’.[159] This is
    reiterated in the UNHCR Refugee Children: Guidelines on Protection and
    Care
    and accords with the basic principle in the CRC that detention be a
    matter of last resort.

  10. United Nations instruments have defined what is meant by
    ‘detention’, in relation to children, as
    follows:

    Deprivation of liberty means any form of detention or
    imprisonment or the placement of a person in another public or private custodial
    setting from which this person is not permitted to leave at will, by order of
    any judicial, administrative or other public
    authority.[160]

  11. The UNHCR considers detention as: confinement within a narrowly bounded or
    restricted location, including prisons, closed camps, detention facilities or
    airport transit zones, where freedom of movement is substantially curtailed, and
    where the only opportunity to leave this limited area is to leave the
    territory.[161]

  12. As noted above, the UN Committee on the Rights of the Child has indicated
    that the detailed standards set out in the the Beijing Rules and the the UN
    Rules are relevant to the interpretation of article
    37.[162] Indeed, the travaux
    préparatoires
    indicate that article 37(c) was based upon aspects of
    those standards.[163]

  13. Amongst other things, those standards stress:

    1. the importance
      of considering alternatives to detention in an
      institution;[164]

    2. the need to ensure that the conditions of detention and care promote,
      sustain and protect the health of child detainees (including mental
      health);[165]

    3. the need to ensure adequate medical care (both preventative and remedial)
      and to ensure immediate access to adequate medical
      facilities;[166] and

    4. the importance of providing appropriate educational and leisure
      opportunities and providing an environment where child detainees may associate
      with other children their
      age.[167]

  14. The UN Rules require that the detention of a child should always be a
    disposition of last resort and for the minimum necessary
    period[168] and the Beijing Rules
    state that any detention should be
    brief[169] and should occur only
    where the child has committed ‘a serious act involving
    violence’.[170]

  15. A proper application of article 37 requires a case-by-case assessment of
    whether the detention of the child is justified in the individual circumstances.
    While the execution of legitimate policy goals may be one of the circumstances
    to consider in such an assessment, it will not be the sole or determinative
    factor in assessing whether the detention of an individual child accords with
    the right to liberty under international law. Moreover, while the length of
    detention per se will not be determinative of whether detention will be
    arbitrary, it is relevant to the requirement that detention be necessary and
    proportionate to the
    goals.[171]

  16. Article 37(c) stresses that children deprived of their liberty should not
    lose their fundamental rights and that their treatment must take account of
    their age and child development.

  17. Article 37(c) was also based upon the terms of article 10(1) of the ICCPR.
    The jurisprudence of the UNHRC regarding article 10(1) is thus also relevant to
    the interpretation of article 37(c) of the CRC.

  18. That jurisprudence has attempted to distinguish the provisions of article
    10(1) from article 7 of the ICCPR (which proscribes torture or other cruel or
    inhuman or degrading treatment or conduct). This is relevant in the context of
    the CRC as the terms of article 37(a) of the CRC are similar to the terms of
    article 7 of the ICCPR. Professor Manfred Nowak summarises this jurisprudence as
    follows:

    [w]hereas article 7 primarily is directed at specific,
    usually violent attacks on personal integrity, article 10 relates more to the
    general state of a detention facility or some other closed institution and to
    the specific conditions of detention. As a result, article 7 principally
    accords a claim that State organs refrain from certain action (prohibition of
    mistreatment), while article 10 also covers positive State duties to ensure
    certain conduct: Regardless of economic difficulties, the State must establish a
    minimum standard for humane conditions of detention (requirement of humane
    treatment). In other words, it must provide detainees and prisoners with a
    minimum of services to satisfy their basic needs (food, clothing, medical care,
    sanitary facilities, communication, light, opportunity to move about, privacy,
    etc). Finally, it is ... stressed that the requirement of humane treatment
    pursuant to article 10 goes beyond the mere prohibition of inhuman treatment
    under article 7 with regard to the extent of the necessary ‘respect for
    the inherent dignity of the human
    person’.[172]

  19. Early jurisprudence of the UNHRC indicated that detention of a person in
    conditions ‘seriously detrimental to their health’ was a breach of
    both articles 7 and 10(1) of the
    ICCPR.[173] However, it seems to
    be accepted that such treatment is more appropriately regarded as a breach of
    article 10(1) alone.[174]

  20. It is also clear from UNHRC jurisprudence that the threshold for
    establishing a breach of article 10(1) is lower than the threshold for
    establishing ‘cruel, inhuman or degrading treatment’ within the
    meaning of article
    7.[175]

Appendix
3: Summary of the recommendations from the reports of medical and mental health
professionals who treated the Yousefi family

Date
Name
Extracts of observations and/or recommendations
1
26 July 2002
Professor Norman James
This is a highly dysfunctional family unit with serious individual
psychopathology ... little can be done to help them while in detention.
Manoochehr is beginning to develop borderline personality traits.
2
19 August 2002
Dr Jon Jureidini
Concurs unreservedly with Dr Bakhitiarian and Mr Paleologos’
recommendation that the whole family should be removed from detention.
It is dangerous for Manoochehr to remain in the detention environment
... [self destructive behaviour was indicative of] ‘significant trauma and
Manoochehr not having the adequate psychological means of coping with that
trauma.’
3
11 October 2002
Dr Lockwood
At a case conference:
Actual improvement to their mental health would only occur outside
detention. Another detention centre would just maintain the status quo. From a
child protection perspective, this situation cannot continue as it constitutes
serious emotional abuse of Manoochehr. Recommends investigation of possible
release.
4
16 October 2002
J Cooke & D Acaster, Pscyhologists
Current placement in November compound inappropriate.
5
21 October 2002
D Acaster, Psychologist
Long term detention has a devastating effect on the Yousefi Family...
their son’s mental state has been significantly effected. Michael is
currently in an extremely fragile emotional state. This is likely to continue to
influence many areas of his life including his ability to form relationships,
his future risk of psychiatric morbidity and suicide.
Detention of his family at the Woomera Detention Centre is no longer an
option. I strongly recommend that the Yousefi family be given alternative
accommodation, preferably community based and provided with ongoing psychiatric
and psychological treatment and support.
Anything less would be a failure in our duty of care.
6
29 October 2002
Mental Health Team
All avenues to help this family have been exhausted. The Mental Health
staff have strongly recommended that the family be given alternative
accommodation and provided with psychiatric and psychological treatment and
support. [The Department] have refused all options put forward. The Mental
Health staff can no longer help this family.
7
7 March 2003
Matina Pentes, Mental Health Worker
Mr Parvis Yousefi was displaying symptoms that suggest Major
Depression with paranoid psychotic features and that his condition was
deteriorating.
Manoochehr’s condition required urgent intervention.
Recommended that the family be transferred to a large metropolitan
detention centre to provide easily accessible adolescent and adult psychiatric
care.
8
12 April 2003
Dr Elaine Skinner
Detention environment appears to have been a significant contributor to
Mr Yousefi’s condition and a better alternative should be
sought.
9
21 May 2003
Dr Jon Jureidini
All ACM visiting mental health staff have been unanimous in their
agreement that this family cannot be treated in detention.
Each member suffers severe psychological disturbance sufficient to
warrant consideration of admission.
Unless removed, they cannot benefit from any mental health
intervention.
[The Department’s] actions are denying them any significant mental
health intervention.
To keep the family in detention is a decision to deny them mental health
intervention.
Mental health interventions in detention setting will prove
fruitless.
10
13 June 2003
Stephen Monaghan,
Health Services Manager
Supports past recommendations for community detention.
No progress has been made by the Baxter Health Team.
11
30 October 2003
Dr Jon Jureidini
Once again let me state the need for urgent psychiatric treatment that
cannot occur within the Detention environment. Failure to do so carries enormous
risks. The fact that I have previously warned of such risks and there has
not yet been a disaster should not be regarded as reassuring.
12
4 February 2004
Dr Jon Jureidini
Reiterated extreme concern for the family’s welfare while they
remained in detention.

Appendix 4: 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] The relevant Department has since been
renamed twice and is currently called the Department of Immigration and
Citizenship (DIAC).
[2] See the comments of the Human Rights
Committee 95th Session (16 March to 3 April 2009) concluding observations re
Australia.CCPR/C/AUS/CO/5 at p 5.
[3] Minister for Immigration and Citizenship,
Minister’s Residence Determination Power Under S. 197AB and S. 197AD
of the Migration Act 1958: Guidelines (2009), paras 4.1.4, 4.1.5.
[4] Minister for Immigration and Citizenship,
Minister’s Residence Determination Power Under S. 197AB and S. 197AD
of the Migration Act 1958: Guidelines (2009), para 6.1.2.
[5] Human Rights and Equal Opportunity
Commission, A last resort? National inquiry into Children in Immigration
Detention
(2004). At http://humanrights.gov.au/human_rights/children_detention_report/index.html (viewed 5 March 2011).
[6] From the Department of Human Services,
South Australia.
[7] Australian Human Rights Commission Act
1986
(Cth), section 3.
[8] See Secretary, Department of Defence v
HREOC
(Cth), Burgess & Ors (Burgess) (1997)
78 FCR 208.
[9] (1938) 60 CLR 336, 362 (Dixon J).
[10] (1992) 110 ALR 449, 449–450
(Mason CJ, Brennan, Deane and Gaudron JJ).
[11] ‘...it is...stressed that the
requirement of humane treatment pursuant to Article 10 goes beyond the mere
prohibition of inhuman treatment under Article 7 with regard to the extent of
the necessary “respect for the inherent dignity of the human
person”.’ See M Nowak, UN Covenant on Civil and Political Rights
CCPR Commentary
(2nd ed, 2005) 247–8.
[12] Vuolanne v Finland, Communication No 265/1987: CCPR/C/35/D/265/1987 at [9.2]; Brough v
Australia,
Communication No 1184/2003: CCPR/C/86/D/1184/2003 at [9.4]. See
also Keenan v United Kingdom [2001] ECHR 242 (3 April 2001), with respect
to the meaning of the equivalent provision in the Convention for the
Protection of Human Rights and Fundamental Freedoms
.
[13] The Standard Minimum Rules were
approved by the United Nations Economic and Social Council in 1957. They were
subsequently adopted by the United Nations General Assembly in resolutions 2858
of 1971 and 3144 of 1983: UN Doc A/COMF/611, Annex 1 http://www2.ohchr.org/english/law/treatmentprisoners.htm (viewed 17 March 2011).
[14] The Body of Principles were adopted by
the United Nations General Assembly in resolution 43/173 of 9 December 1988
Annex: UN Doc A/43/49 (1988).
[15] UN Human Rights Committee, General
Comment 21 (1992), [5]. See also Mukong v Cameroon, Communication No
458/1991, UN Doc CCPR/C/51/458/1991, [9.3]. The Body of Principles apply to all
persons under any form of detention or imprisonment. The Standard Minimum Rules
are directed at the treatment of prisoners and the management of penal
institutions. Although immigration detention facilities are not penal
institutions in the sense that they do not house convicted criminals or people
charged with a criminal offence, the Standard Minimum Rules are expressed to set
out minimum conditions which are accepted as suitable by the United Nations for
the general management of institutions housing all categories of prison.
[16] I note that Dr Elaine
Skinner’s Report of 12 April 2003 observes that Mrs Yousefi is angry about
the use of force during the transfer. This is some 3 months after the
transfer.
[17] For example Dr Lockwood’s advice
at the Case conference held on 11 October 2002.
[18] (2002) AusHRC 25. See also Burgess.
[19] Ibid.
[20] Ibid.
[21] The Department noted that: ‘This
occurred in March 2004. Records show that the family did not accept the offer to
apply for a BE. The family were granted temporary protection visas approximately
two months later.’
[22] Report of Dr Fiona Hawker,
Psychiatrist of the Royal Adelaide Hospital, Glenside Campus Mental Health
Service to Dr Simon Lockwood (GP) of Woomera Hospital, dated 21 May 2002.
[23] DHS, Family and Youth Services, Senior
Practitioner, Social Worker, Crisis Response and Child Abuse Service,
Investigation Report on Child Protection Intake from Woomera Detention Centre,
10 May 2002, 4 (provided by the Department in the 2004 national inquiry into
Children in Detention).
[24] Report of Dr Jon Jureidini, 22 July
2002.
[25] See for example the report of Dr
Bakhtiarian and Con Paleologos to Mr David Coulton, ACM Manager, dated 23 July
2002 and the report of Dr Jon Jureidin, dated 19 August 2002.
[26] This is supported by a letter from
Sharon Edgerton dated 29 May 2002 requesting a medical assessment ‘as to
whether the detainees have a special need (based on physical/mental health or
torture/trauma experiences) that cannot be cared for’, in order for the
Department to give further consideration as to whether the family is eligible
for a bridging visa.
[27] UN Human Rights Committee, General
Comment 8 (1982). See also A v Australia, Communication No 560/1993, UN
Doc CCPR/C/59/D/560/1993; C v Australia, Communication No 900/1999 UN Doc
CCPR/C/76/D/900/1999; Baban v Australia, Communication No 1014/2001
UN Doc CCPR/C/78/D/1014/2001.
[28] Manga v Attorney-General [2000]
2 NZLR 65, [40]–[42], (Hammond J). See also the views of the UN Human
Rights Committee in Van Alphen v The Netherlands, Communication
No 305/1988, UN Doc CCPR/C/39/D/305/1988; A v Australia, Communication No 560/1993, UN Doc CCPR/C/39/D/305/1988; Spakmo v
Norway,
Communication No 631/1995, UN Doc CCPR/C/67/D/631/1995.
[29] Section 196(1) of the Migration Act
provides that a detained unlawful non-citizen must be kept in immigration
detention until he or she is (a) removed from Australia; (b) deported; or
(c) granted a visa.
[30] See UN Human Rights Committee, General
Comment 31 (2004) [6]. See Joseph, Schultz and Castan ‘The International
Covenant on Civil and Political Rights Cases, Materials and Commentary’
(2nd ed, 2004), 308, [11.10].
[31] This is consistent with the
Commission’s views in Badraie v Commonwealth (Department of Immigration
and Multicultural and Indigenous Affairs)
(2002) AusHRC 25.
[32] C v Australia, Communication No
900/1999, UN Doc CCPR/C/76/D/900/1999 (2002), [8.4]. Commentators have suggested
that there is ‘little doubt’ that the majority’s decision was
linked with its finding that the detention was arbitrary. S Joseph, J Shultz and
M Castan, The International Covenant on Civil and Political Rights: Cases,
materials and commentary
(2nd ed, 2004) [9.51].
[33] UN Human Rights Committee, General
Comment 21 (1992) and UN Human Rights Committee, General Comment 9 (1982).
[34] Memo of Annabelle O’Brien to Jim
Williams, dated 7 July 2003.
[35] Report of Psychologist, Robin Gracie
to Sharon Edgerton, Woomera Detention Centre, 18 June 2003.
[36] United Nations Children’s Fund
(‘UNICEF’), ‘Implementation Handbook for the Convention on the
Rights of the Child’ (2008), 38–39. Note Article 45 of the CRC
recognises the special competence of UNICEF and other United Nations organs to
provide expert advice on the implementation of the Convention in areas falling
within the scope of their respective mandates.
[37] (1995) 128 ALR 353.
[38] (1995) 128 ALR 353, 363 (Mason CJ and
Deane J).
[39] See AHRC, ‘A Last Resort:
National Inquiry into Children in Immigration Detention’ (2004) 163,
citing Minister for Immigration and Multicultural and Indigenous Affairs, Border
Protection: Children in Detention, 29 April 2002.
[40] See: UNICEF, ‘Implementation
Handbook for the Convention on the Rights of the Child’ (2008),
40–41.
[41] UNICEF, ‘Implementation Handbook
for the Convention on the Rights of the Child’ (2008), 256.
[42] UNICEF, ‘Implementation Handbook
for the Convention on the Rights of the Child’ (2008), 265.
[43] UNICEF, ‘Implementation Handbook
for the Convention on the Rights of the Child’ (2008), 258.
[44] UNICEF, ‘Implementation Handbook
for the Convention on the Rights of the Child’ (2008), 548.
[45] UN Rules, Rule 1.
[46] Rule 17.1(b) of the Beijing Rules
provides that ‘Restrictions on the personal liberty of the juvenile shall
be imposed only after careful consideration and shall be limited to the possible
minimum’.
[47] Rule 17.1(c) of the Beijing Rules
provides that ‘Deprivation of personal liberty shall not be imposed unless
the juvenile is adjudicated of a serious act involving violence against another
person or of persistence in committing other serious offences and unless there
is no other appropriate response’.
[48] Beijing Rules, Rules 13.2, 28.1, 28.2,
29.1.
[49] UN Rules, Rule 28 and Beijing Rules,
Rule 26.2.
[50] UN Rules, Rules 49 and 51.
[51] UN Rules, Rules 18, 32 and Part (IV)E
and F and Beijing Rules, Rules 24.1, 26.1, 26.2, 26.6.
[52] I note that Rule 38 of the UN
Rules provides that ‘Every Juvenile of compulsory school age has the right
to education suited to his or her needs and abilities and designed to prepare
him or her for return to society. Such education should be provided outside
the detention facility in community schools wherever possible
and, in any
case, by qualified teachers through programmes integrated with the education
system of the country so that, after release, juveniles may continue their
education without difficulty. Special attention should be given by the
administration of the detention facilities to the education of juveniles of
foreign origin or with particular cultural or ethnic needs.’ (emphasis
added)
[53] Australian Human Rights Commission
Act (1986),
(Cth) s 29(2)(a).
[54] Australian Human Rights Commission
Act (1986),
(Cth) s 29(2)(b).
[55] Australian Human Rights Commission
Act (1986),
(Cth) s 29(2)(c).
[56] Simpson v Attorney General
(Baigent’s case)
[1994] 3 NZLR 667, 678 (Cooke P) and 718
(Casey J).
[57] Peacock v The Commonwealth (2000) 104 FCR 464, 483 [55] (Wilcox J).
[58] See Hall v A & A Sheiban Pty
Limited
(1989) 20 FCR 217, 239 (Lockhart J).
[59] Trobridge v Hardy (1955) 94 CLR
147, 152 (Fullagar J); see also Murray v Ministry of Defence [1988] 1 WLR
692, 701–703; Re Bolton; Ex parte Beane (1987) 162 CLR 514, 523
(Brennan J); and Sadler & State of Victoria v Madigan [1998] VSCA 53
(1 October 1998), [51].
[60] Cassell & Co Ltd v Broome (1972) AC 1027, 1124; Spautz v Butterworth & Anor (1996)
41 NSWLR 1, 14–15 (Clarke JA); Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 (22 November 1999], [87].
[61] Spautz v Butterworth & Anor (1996) 41 NSWLR 1, 15–17 (Clarke JA); Hall v A & A Sheiban Pty
Limited
(1989) 20 FCR 217, 239–240 (Lockhart J).
[62] Taylor v Ruddock (unreported,
18 December 2002, NSW District Court (Murrell DCJ)).
[63] On the basis that they found the
detention was lawful because of the provisions of the Migration Act.
[64] Ruddock v Taylor (2003) 58
NSWLR 269.
[65] Ibid, [48]–[49].
[66] [2004] FCA 156.
[67] Spautz v Butterworth & Anor (1996) 41 NSWLR 1 (Clarke JA).
[68] (2009) AusHRC 41.
[69] I have not recommended that
compensation be paid to Mr Yousefi for the reasons outlined in part 8.3
above.
[70] Report of Dr Roberts dated 9 July 2010
at p 81 para 5.14.
[71] Report of Dr Phillips dated 29 May
2009 at p 20.
[72] Ibid, p 20–21.
[73] Ibid, p 22.
[74] Ibid, p 23.
[75] Report of Dr Roberts at p 82 para
5.15.
[76] Ibid, p 82 para 5.15.
[77] Ibid, p 82 para 5.17.
[78] D Shelton, Remedies in
International Human Rights Law
(2000) 151.
[79] C Evans, New Directions in
Detention – Restoring Integrity to Australia’s Immigration
System
(Speech delivered at the Centre for International and Public Law
Seminar, Australian National University, Canberra, 29 July 2008) (New
Directions). At http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm (viewed 5 March 2011).
[80] Community and Detention Services
Division, DIAC, Immigration Detention Statistics Summary (4 February
2011). At http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 5 March 2011).
[81] Human Rights and Equal Opportunity
Commission, A last resort? National inquiry into Children in Immigration
Detention
(2004). At http://humanrights.gov.au/human_rights/children_detention_report/index.html (viewed 5 March 2011).
[82] See the comments of the Human Rights
Committee 95th Session (16 March to 3 April 2009) concluding observations re
Australia.CCPR/C/AUS/CO/5 at p 5.
[83] Minister for Immigration and
Citizenship, Minister’s Residence Determination Power Under S. 197AB
and S. 197AD of the Migration Act 1958: Guidelines
(2009), paras 4.1.4,
4.1.5.
[84] Minister for Immigration and
Citizenship, Minister’s Residence Determination Power Under S. 197AB
and S. 197AD of the Migration Act 1958: Guidelines
(2009), para 6.1.2.
[85] See the comments of the Human Rights
Committee 95th Session (16 March to 3 April 2009) concluding observations re
Australia.CCPR/C/AUS/CO/5 at p 5.
[86] Minister for Immigration and
Citizenship, Minister’s Residence Determination Power Under S. 197AB
and S. 197AD of the Migration Act 1958: Guidelines
(2009), paras 4.1.4,
4.1.5.
[87] Minister for Immigration and
Citizenship, Minister’s Residence Determination Power Under S. 197AB
and S. 197AD of the Migration Act 1958: Guidelines
(2009), para 6.1.2.
[88] C v Australia, Communication No
900/1999, UN Doc CCPR/C/76/D/900/1999 (2002), [8.4]. Commentators have suggested
that there is ‘little doubt’ that the majority’s decision was
linked with its finding that the detention was arbitrary. S Joseph, J Shultz and
M Castan, The International Covenant on Civil and Political Rights: Cases,
materials and commentary
(2nd ed, 2004) [9.51].
[89] See Vuolanne v Finland, Communication No 265/1987, UN Doc CCPR/C/35/D/265/1987 (1989), Jensen v
Australia,
Communication No 762/1997, UN Doc CCPR/C/71/D/762/1997
(2001).
[90] The Standard Minimum Rules were
approved by the United Nations Economic and Social Council in 1957. They were
subsequently adopted by the United Nations General Assembly in resolutions 2858
of 1971 and 3144 of 1983: UN Doc A/COMF/611, Annex 1 http://www2.ohchr.org/english/law/treatmentprisoners.htm.
[91] The Body of Principles were adopted by
the United Nations General Assembly in resolution 43/173 of 9 December 1988
Annex: UN Doc A/43/49 (1988).
[92] United Nations Principles for the
protection of persons with mental illness and the improvement of mental
healthcare, adopted by General Assembly resolution 46/119 of 17 December 1991,
principle 7.1; see also principle 20.
[93] UN Human Rights Committee, General
Comment 21 (1992) and UN Human Rights Committee, General Comment 9 (1982).
[94] ‘...it is...stressed that the
requirement of humane treatment pursuant to Article 10 goes beyond the mere
prohibition of inhuman treatment under Article 7 with regard to the extent of
the necessary “respect for the inherent dignity of the human
person”.’ See Nowak, 247–8.
[95] M Nowak, UN Covenant on Civil and
Political Rights CCPR Commentary (1993), 188.
[96] Vuolanne v Finland, Communication No 265/1987: CCPR/C/35/D/265/1987 at [9.2]; Brough v
Australia,
Communication No 1184/2003: CCPR/C/86/D/1184/2003 at [9.4]. See
also Keenan v United Kingdom [2001] ECHR 242 (3 April 2001), with respect
to the meaning of the equivalent provision in the Convention for the
Protection of Human Rights and Fundamental Freedoms
.
[97] UN Human Rights Committee, General
Comment 8 (1982). See also A v Australia, Communication No 560/1993, UN
Doc CCPR/C/59/D/560/1993; C v Australia, Communication No 900/1999 UN Doc
CCPR/C/76/D/900/1999; Baban v Australia, Communication No 1014/2001
UN Doc CCPR/C/78/D/1014/2001.
[98] Manga v Attorney-General [2000]
2 NZLR 65, [40]–[42], (Hammond J). See also the views of the UN Human
Rights Committee in Van Alphen v The Netherlands, Communication
No 305/1988, UN Doc CCPR/C/39/D/305/1988; A v Australia, Communication No 560/1993, UN Doc CCPR/C/39/D/305/1988; Spakmo v
Norway,
Communication No 631/1995, UN Doc CCPR/C/67/D/631/1995.
[99] Section 196(1) of the Migration Act
provides that a detained unlawful non-citizen must be kept in immigration
detention until he or she is (a) removed from Australia; (b) deported; or
(c) granted a visa.
[100] Ibid.
[101] Communication No 305/1988, UN Doc CCPR/C/39/D/305/1988.
[102] Ibid, [5.8].
[103] Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993.
[104] Ibid, [9.2].
[105] Yin Fong Kwok v Australia, Communication No 1442/2005 CCPR/C/97/D/144/2005.
[106] (2003) 126 FCR 54.
[107] Ibid, [152].
[108] [2000] 2 NZLR 65.
[109] Ibid, [40], [41], references
listed at [41], [42].
[110] [2001] 3 NZLR 433.
[111] Ibid, [34].
[112] Saadi v United Kingdom [2008] ECHR 80, [67].
[113] Ibid, [69].
[114] See A v Australia, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993; Spakmo
v Norway,
Communication No 631/1995, CCPR/C/67/D/631/1995; Concluding
Comments Regarding Switzerland (1996), CCPR/C/79/Add.70; Weeks v United
Kingdom,
Series A, No 114, ECHR, 2 March 1987; Erkalo v Netherlands, Application No 23 807/94, ECHR, 23 September 1998.
[115] General Comment No 5 at 12.
[116] (1995) 183 CLR 273.
[117] In particular, see the decisions of
Mason CJ and Deane J at 289. But note the dissent of McHugh J
at 319.
[118] UNHCR guidelines on the best
interests of the child p 15.
[119] At 289.
[120] At 292.
[121] United Nations Children’s
Fund (‘UNICEF’), ‘Implementation Handbook for the Convention
on the Rights of the Child’ (2008), 38–39. Note Article 45 of CRC
recognises the special competence of UNICEF and other United Nations organs to
provide expert advice on the implementation of the Convention in areas falling
within the scope of their respective mandates.
[122] MXL, R (on the application of)
& Ors v Secretary of State for the Home Department
[2010] EWHC 2397
(Admin) (30 September 2010), 84.
[123] ZHZH (Tanzania) FC (Appellant) v
Secretary of State for the Home Department
[2011] UKSC 4 (1 February
2011) at 26.
[124] Committee on the Rights of the
Child, General Comment No 13 (2011), Article 19: the right of the child to
freedom from all forms of violence, 17 February 2011, para 34.
[125] Note that this comment was made in
relation to a minor who was a cadet in the Tasmanian Air Training Corps: Report
of an inquiry into complaints by Ms Susan Campbell that the human rights of her
daughter were breached by the Commonwealth of Australia under the Convention on
the Rights of the Child, HREOC Report No 29, 2005, para 4.2.2.
[126] Committee on the Rights of the
Child, General Comment No 13 (2011), Article 19: the right of the child to
freedom from all forms of violence, 17 February 2011, para 31.
[127] Committee on the Rights of the
Child, General Comment No 13 (2011), Article 19: the right of the child to
freedom from all forms of violence, 17 February 2011, para 35.
[128] Committee on the Rights of the
Child, General Comment No 13 (2011), Article 19: the right of the child to
freedom from all forms of violence, 17 February 2011, para 33.
[129] S Detrick A commentary on the
United Nations Convention on the Rights of the Child
Martinus Nijhoff
Publishers (1999) p 321.
[130] UNICEF, ‘Implementation
Handbook for the Convention on the Rights of the Child’ (2008), 258.
[131] Committee on the Rights of the
Child, General Comment No 13 (2011), Article 19: the right of the child to
freedom from all forms of violence, 17 February 2011, para 31.
[132] Committee on the Rights of the
Child, General Comment No 13 (2011), Article 19: the right of the child to
freedom from all forms of violence, 17 February 2011, para 4.
[133] UNICEF, ‘Implementation
Handbook for the Convention on the Rights of the Child’ (2008), 256.
[134] Committee on the Rights of the
Child, General Comment No 13 (2011), para 21 Article 19: the right of the child
to freedom from all forms of violence.
[135] Badraie v Commonwealth (Department of Immigration and Multicultural and Indigenous Affairs), (2002)
AusHRC 25, para 13.3.
[136] Committee on the Rights of the
Child, General Comment No 13 (2011), Article 19: the right of the child to
freedom from all forms of violence, 17 February 2011, para 19.
[137] UNICEF, ‘Implementation
Handbook for the Convention on the Rights of the Child’ (2008), 265.
[138] UN Committee on the Rights of the
Child, General Comment 4 (2003), [32(c)].
[139] CRC General Comment No 6: treatment
of unaccompanied and separated children outside their country of origin,
2005.
[140] Ibid, para 46.
[141] UNESCO, Convention against
Discrimination in Education,
Adopted by the General Conference at its
eleventh session,14 December 1960.
[142] Convention against
Discrimination in Education,
Article 1.
[143] Ibid, Article 3.
[144] UN Committee on the Rights of the
Child, Concluding observations of the Committee on the Rights of the Child:
Belgium,
UN Doc CRC/C/15/Add.38, 20 June 1995, [9]; Concluding
Observations of the Committee on the Rights of the Child: Denmark,
UN Doc
CRC/C/15/Add.33, 15 February 1995, [14].
[145] Committee on the Rights of the
Child, General Comment No 6, 2005, CRC/GC/2005/6, para 41.
[146] See United Nations Rules for the
Protection of Juveniles Deprived of their Liberty, Rules 13, 38–47.
[147] Report of the Special Rapporteur on
the right to education, Vernor Munoz, The right to education of persons in
detention,
A/HRC/AA8, 2 April 2009.
[148] See A Commentary on the United
Nations Convention on the Rights of the Child,
S Detrick,
p 630.
[149] Rules 1 and 2.
[150] Rule 17(b) provides
‘Restrictions on the personal liberty of the juvenile shall be imposed
only after careful consideration and shall be limited to the possible
minimum’.
[151] Rule 17(c) provides that
‘Deprivation of personal liberty shall not be imposed unless the juvenile
is adjudicated of a serious act involving violence against another person or of
persistence in committing other serious offences and unless there is no other
appropriate response’.
[152] Communication No 560/1993, 30 April
1997.
[153] UNICEF Implementation Handbook,
2002, p 550; UNHCR, UNHCR Revised Guidelines on Applicable Criteria and
Standards relating to the Detention of Asylum-Seekers,
1999,
guideline 3.
[154] See for example, Committee on the
Rights of the Child, Concluding Observations on the Committee on the Rights
of the Child: Austria,
UN Doc CRC/C/15/Add.98, 7 May 1999, para 27;
Committee on the Rights of the Child, Concluding Observations of the
Committee on the Rights of the Child: Canada,
UN Doc CRC/C/15/Add.37,
20 June 1995, para 24; and Committee on the Rights of the Child, Concluding
Observations of the Committee on the Rights of the Child: Sweden,
UN Doc
CRC/C/15/Add.2, 18 February 1993, para 12.
[155] UNHCR Detention Guidelines,
guidelines 4 and 6 (emphasis retained). See also UNHCR, Refugee Children:
Guidelines on Protection and Care,
Geneva, 1994, ch 7, IV: ‘Strong
efforts must be made to have [children and their families] released from
detention and placed in other accommodation’.
[156] Chu Kheng Lim v Minister of
Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR 1 at
33.
[157] HRC, A v Australia, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993, 30 April 1997, para 9.2.
The HRC found that Australia’s mandatory detention of asylum seekers is
not against international law per se, but that the failure to ensure
periodic review of whether the detention continued to be appropriate caused the
detention to be arbitrary and therefore a breach of international law, paras
9.3–9.4.
[158] HRC, Van Alphen v The
Netherlands,
Communication No 305/1988, UN Doc CCPR/C/39/D/305/ 1988, 15
August 1990, paras 5.6–5.8; HRC, Spakmo v Norway, Communication No
631/1995, UN Doc CCPR/C/67/D/631/1995, 11 November 1999, para 6.3; HRC, A v Australia, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993, 30
April 1997; HRC, Concluding Observations of the Human Rights Committee:
Switzerland,
UN Doc CCPR/C/79/Add.70, 8 November 1996, para 15.
[159] UNHCR Detention Guidelines,
guideline 6 (emphasis in original). The guidelines come to this position by
applying articles 2, 3, 9, 22 and 37 of the CRC.
[160] United Nations Rules for the
Protection of Juveniles Deprived of their Liberty, rule 11(b)(2).
[161] UNHCR Revised Guidelines on
Applicable Criteria and Standards relating to the Detention of Asylum Seekers,
guideline 1.
[162] UNICEF, ‘Implementation
Handbook for the Convention on the Rights of the Child’ (2008), 548.
[163] S Detrick, op cit, p 633.
[164] See eg Beijing Rules paragraphs
13.2, 28.1, 28.2 and 29.1.
[165] See eg UN Rules paragraphs 12 and
28 and the Beijing Rules paragraph 26.2.
[166] See eg UN Rules paragraphs 49 and
51.
[167] See eg UN Rules paragraphs 18 and
32 and Parts (IV)E and (IV) F and the Beijing Rules paragraphs 24.1, 26.1,
26.2 and 26.6.
[168] UN Rules, Rule 1.
[169] Rule 17.1(b) of the Beijing Rules
provides that ‘Restrictions on the personal liberty of the juvenile shall
be imposed only after careful consideration and shall be limited to the possible
minimum’.
[170] Rule 17.1(c) of the Beijing Rules
provides that ‘Deprivation of personal liberty shall not be imposed unless
the juvenile is adjudicated of a serious act involving violence against another
person or of persistence in committing other serious offences and unless there
is no other appropriate response’.
[171] See S Joseph, The International
Covenant on Civil and Political Rights,
Oxford University Press, 2000,
p 217.
[172] Ibid, at 188.
[173] Massera v Uruguay (5/1977).
[174] S Joseph, above n 171.
[175] Nowak M, UN Covenant on Civil
and Political Rights CCPR Commentary
MP Engel, Germany, 1993,
at 186.