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HREOC Report No. 23

Report of an
inquiry into a complaint by Mr Hassan Ghomwari concerning his immigration
detention and the adequacy of the medical treatment he received while
detained

HREOC Report No. 23


1.
Introduction

2.
The Inquiry Process

3.
Findings and Reasons for Findings

4.
Summary of Findings

5.
Recommendations

6.
Actions Taken by the Commonwealth as a Result of the Findings and Recommendations

APPENDIX
A
Functions
of the Human Rights and Equal Opportunity Commission in Relation to
Human Rights


1. Introduction

This is a Report
of the findings and reasons for findings made by the Human Rights and
Equal Opportunity Commission (the Commission) following an inquiry conducted
by the Commission [1]. The inquiry related to a complaint
by Mrs Kylie Ghomwari on behalf of her husband, Mr Hassan Ghomwari, against
the Commonwealth of Australia (the Commonwealth), Department of Immigration,
Multicultural and Indigenous Affairs (the Department). The complaint was
made pursuant to section 20(1)(b) of the Human Rights and Equal Opportunity
Commission Act 1986
(Cth) (the HREOC Act), which provides for a complaint
to be made in writing to the Commission alleging that an act or practice
is inconsistent with or contrary to any human right.

Mr Ghomwari is a
citizen of Lebanon. He was taken into immigration detention pursuant to
section 189 of the Migration Act 1958 (Cth) (the Migration Act)
on 9 July 1998 when the Department discovered that he had overstayed his
visitor visa. He was placed in the Villawood Immigration Detention Centre
(VIDC). On 8 September 1998 a decision was made to transfer him to the
Metropolitan Reception and Remand Centre (MRRC) at Silverwater. While
at the MRRC, Mr Ghomwari contracted Hepatitis B. Mr Ghomwari remained
at the MRRC (with two brief periods in the Parramatta Correctional Centre
[2]) until 8 May 2000, when he was returned to the VIDC.
Mr Ghomwari left Australia voluntarily on 21 October 2000.

In her complaint,
Mrs Ghomwari asserted that the human rights of her husband had been breached
in two ways:

(a) Mrs Ghomwari
alleged that her husband did not receive appropriate medical assistance
for his Hepatitis B after his return to the VIDC; and

(b) Mrs Ghomwari
criticised the conditions of her husband's detention at the MRRC, and,
in particular, the fact that he was held with, and received the same
treatment as, convicted prisoners in the MRRC.

Mrs Ghomwari also
challenged the basis for transferring her husband from the VIDC to the
MRRC, the basis for his continued detention in the MRRC and the fact that
her husband was held with convicted prisoners in that prison. However,
those parts of her complaint were not substantiated.

2. The
inquiry process

I have investigated
this complaint pursuant to section 11(1)(f) of the HREOC Act and conciliation
was attempted. However, agreement was not able to be reached and I have
formed the view that this matter was not amenable to conciliation.

I have provided to
the parties my Preliminary Report dated 31 May 2001, my Further Preliminary
Report dated 9 November 2001 and my Additional Preliminary Report dated
25 February 2002. These reports outlined my preliminary findings of fact
and law in relation to the complaint.

On 15 December 2001,
I heard oral evidence from the parties on the issue of the medical assistance
provided to Mr Ghomwari after he was returned to the VIDC on 8 May 2000.
Mrs Ghomwari gave evidence and tendered a pamphlet on Hepatitis B. Dr
Amin, Mr Peter Mitchell and Ms Kay Symons gave evidence on behalf of the
Department.

The parties were
given an opportunity to respond to these Preliminary Reports and to make
written submissions on the oral evidence given at the hearing. The Department
made three sets of written submissions dated 9 July 2001,

12 December 2001
and 15 March 2002 in response to the Preliminary Reports.

On 11 January 2002,
the Department provided written submissions concerning the evidence given
at the hearing.

On 17 July 2001,
Mrs Ghomwari provided written submissions to the Commission. Mrs Ghomwari
did not make any further written submissions to this inquiry but provided
it with the following material:

  • Further Submission
    in Support of the Application of Hassan Ghomwari (Migration Review Tribunal
    Proceedings No. N99/06946);
  • Further Amended
    Application (Federal Court Proceedings No. NG 398/1999);
  • Statement of Facts
    and Issues (Federal Court Proceedings No. NG 398/1999);
  • Applicant's Submission
    in Support of Application for Order of Review (Federal Court Proceedings
    No. NG 398/1999);
  • Applicant's Further
    Outline of Contentions (Federal Court Proceedings No. NG 398/1999);
  • Applicant's Further
    List of Authorities (Federal Court Proceedings No. NG 398/1999);
  • Appellant's Submissions
    (Full Federal Court Proceedings No. N1233 of 1999); and
  • Index to Appeal
    Papers (Full Federal Court Proceedings No. N1233 of 1999).

On 23 September 2002,
I provided to the parties my Notice of findings and reasons for findings
pursuant to section 29(2) of the HREOC Act. The findings and reasons for
findings made in that Notice appear below.

3.
Findings and reasons for findings

3.1 Introduction

Where a complaint
is received by the Commission, it has the function, pursuant to section
11(1)(f) of the HREOC Act, of inquiring into:

  • any act or practice
  • that may be inconsistent
    with or contrary to any human right.

3.2 Was there
an act or practice?

Section 3 of the
HREOC 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. These words have their ordinary meaning: that is,
the noun "act" denotes a thing done and the noun "practice"
denotes a course of repeated conduct.[3]

An "act"
or "practice" only invokes the human rights complaints jurisdiction
of the Commission where the relevant act or practice is within the discretion
of the Commonwealth, its officer or agents. If the automatic operation
of a law requires that the act or practice be done by or on behalf of
the Commonwealth, its officers or its agents, and there is no discretion
involved, these actions and practices will be outside the scope of the
Commission's human rights complaints jurisdiction [4].

The Migration Act
establishes a system of mandatory detention whereby all "unlawful
non-citizens" [5] must be held in immigration detention
[6] until they are granted a valid visa or leave the
country [7]. The Commission in its Report, Those who've
come across the seas: Detention of unauthorised arrivals
[8],
found that these provisions in the Migration Act contravene Australia's
human rights obligations under article 9 of the International Covenant
on Civil and Political Rights (ICCPR) and article 37 of the Convention
on the Rights of the Child [9]. Consequently, the Commission
recommended that these provisions be amended [10]. However,
while this law remains in place a person's detention under the Migration
Act occurs by reason of the automatic operation of the law and would not
constitute an act or practice into which the Commission could inquire.

3.2.1 Conditions
of detention

3.2.1.1 VIDC

Decision makers within
the Department and Australasian Correctional Management Pty Ltd (ACM),
as the agent of the Commonwealth under the Detention Services Contract
dated 27 February 1998 [11], (hereafter collectively
referred to as "the VIDC") are left with a wide discretion as
to the conditions under which a person is held in immigration detention
in an IDC. In the circumstances of this case, the VIDC exercised discretion
as to the level and quality of the medical services provided to Mr Ghomwari.
Decisions concerning these services are therefore "acts" done
by the Commonwealth, as defined in section 3 of the HREOC Act, and within
the Commission's complaints jurisdiction.

3.2.1.2 MRRC

Mr Ghomwari, as an
immigration detainee, was held "on behalf of" the Department
[12] in the MRRC. As such, the Department was responsible
for the treatment he received in this correctional facility. This was
acknowledged in the Department's written submissions of 15 March 2002,
where it advised that negotiations are underway with a number of State
correctional authorities in relation to, inter alia, the conditions
under which detainees are held in these correctional facilities. Decisions
concerning the treatment accorded to Mr Ghomwari in the MRRC are therefore
also "acts" done by the Commonwealth, as defined in section
3 of the HREOC Act, and within the Commission's complaints jurisdiction.

3.3 Were the acts
inconsistent with and/or contrary to any human right?

In her complaint,
Mrs Ghomwari requested that I inquire into alleged breaches of human rights.
As detailed above, pursuant to section 11(1)(f) of the HREOC Act, I have
the function of inquiring into any act or practice which is inconsistent
with or contrary to any human right. "Human rights" are defined
in section 3 of this Act as "the rights and freedoms recognised in
the [ICCPR], declared by the Declarations or recognised and declared by
any relevant international instrument".

3.4 Were the acts
inconsistent with and/or contrary to the human rights recognised in the
ICCPR?

The ICCPR entered
into force for Australia on 13 November 1980. The ICCPR applies to all
persons within the territory of a State Party regardless of their nationality
or status as a non-citizen [13]. Thus, the ICCPR applies
to all asylum seekers, refugees and persons within Australia's jurisdiction
whose applications for refugee protection have been rejected.

3.4.1 Article
10(1) of the ICCPR

Article 10(1) provides
that:

All persons deprived
of their liberty shall be treated with humanity and with respect for
the inherent dignity of the human person.

This article of the
ICCPR is relevant to Mrs Ghomwari's allegation that her husband did not
receive appropriate medical assistance for his Hepatitis B after his return
to the VIDC.

In my Preliminary
Report, I found that, upon his return to the VIDC, Mr Ghomwari was not
provided with the level and quality of medical attention required to meet
minimum standards of humane conditions of detention in breach of his human
rights under article 10(1) of the ICCPR. In its written submissions of
9 July 2001, the Department disputed this finding.

3.4.1.1 Scope
of article 10(1) of the ICCPR

Article 10(1) extends
to all deprivations of liberty, including that which occurs when a person
enters immigration detention [14], and requires that
minimum standards of humane treatment be observed in the conditions of
detention. The UNHRC has stated that:

3. Article 10,
paragraph 1, imposes on State parties a positive obligation towards
persons who are particularly vulnerable because of their status as persons
deprived of their liberty, and complements the ban on torture or other
cruel, inhuman or degrading treatment or punishment contained in article
7… Thus, not only may persons deprived of their liberty not be
subjected to treatment which is contrary to article 7 … but neither
may they be subjected to any hardship or constraint other than that
resulting from the deprivation of liberty; respect for the dignity of
such persons must be guaranteed under the same conditions as that of
free persons …

4. Treating all
persons deprived of their liberty with humanity and with respect for
their dignity is a fundamental and universally applicable rule. Consequently,
the application of this rule, as a minimum, cannot be dependent on the
material resources available in the State party. This rule must be applied
without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status.

The scope of article
10(1) was addressed in detail in the Report of the Human Rights Commissioner
of May 2000 [15] concerning the conditions of detention
of a Nigerian national at the Perth Immigration Detention Centre (the
Perth IDC). The Commissioner found that the placement of the complainant
in an observation room as a form of punishment, the continued use of restraints,
the excessive and unnecessary holding of the complainant in the observation
room and the holding of the complainant in a room without natural light
or ventilation amounted to contravention of article 10(1).

It is 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 [16]
. Professor Manfred Nowak summaries 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'. [17]

3.4.1.2 Medical
assistance provided to Mr Ghomwari after his return to the VIDC

(a) Written material
provided by the complainant

In her initial undated
letter of complaint, received by the Commission on 24 July 2000, Mrs Ghomwari
alleged that:

[w]hilst in jail
he [her husband] contracted "Hepatitis B". He lived in the
same section as convicted criminals. He contracted Hepatitis B by an
inmate using his shaver or toothbrush. He was then suddenly returned
back to Villawood. He is not getting proper treatment for Hep B. He
is constantly ill due to this sickness.

In a further undated
letter, which was received by the Commission on 24 April 2001, Mrs Ghomwari
stated that:

[a] few months
before Hassan left I went and saw a lady by the name of Kay Simmons.
I told her about Hassan's situation and she already knew. I told her
that he was not feeling well, he was bleeding through his urine and
generally unwell. I told her I was concerned about his health and she
said she would look into it and get back to me. I never heard anything
and neither did my husband. It is very hard to tell you dates and times
so I apologise. On a lot of occasions I would visit him and the officers
would say "Ghomwari's not feeling well today, Ghomwari's sick,
look after him". He always complained about his sickness. I also
went and saw a few officers and asked if I could get my own doctor and
pay for it and they told me no!! as they have their own doctors and
they don't like other doctors coming in for security reasons …

They [the Department]
knew Hassan had Hepatitis B as they told him in jail they read all his
files … In jail he found out he had it and all his tests would
be in his file. They knew all along but did nothing about it. Only because
I made the complaint they did something about it. If I had never made
the complaint he would not have gotton [sic] any medical attention they
would have let him go and not give a damn, but as soon as I made the
complaint they started moving … They knew all along as we went
to court and at court and also in the papers were about my husband's
disease … They just wanted him to leave the country and that's
all they were worried about … My husband on many occasions asked
to be seen by a doctor and was refused …

His Hepatitis B
will always be there and if they did not put him in jail he would not
have the disease. They have no idea of what he has been through or about
how he is feeling. As they have ruined a human being's life for treating
him the way they have.

Ms Kay Symons (not
Simmons) is an employee of the Department. Her place of work is the VIDC,
where, at the relevant time, she was the Immigration Liaison Officer.
On 22 May 2001, the Complaints Handling Section forwarded Mrs Ghomwari's
letter to Ms Symons. Ms Symons was asked to "comment on this allegation
and provide any filenotes or other relevant documentation regarding any
conversation you may have had with Mrs Ghomwari concerning her husband's
welfare." The Complaints Handling Section did not receive a response
from Ms Symons.

Mrs Ghomwari refers,
in the above extract, to going "to court". This is a reference
to proceedings commenced by her husband in the Federal Court of Australia
seeking a review [18] of the Department's decision to
transfer him to the MRRC, and also of successive decisions not to return
him to the VIDC. Emmett J heard this application and, on 22 October 1999,
ordered that it be dismissed [19]. An appeal against
this decision was made to the Full Court of the Federal Court. On 2 June
2000, this appeal was dismissed. [20]

In her written submissions
in response to my Preliminary Report, received on 17 July 2001, Mrs Ghomwari
provided some additional evidence. She stated that:

[o]ne day he had
tribunal on and our solicitor saw him and told him he looked ill. Hassan
told him he hadn't been feeling well. He had yellow eyes, had blood
in his urine and was just off colour. The solicitor faxed through papers
to the jail [the MRRC] and asked if Hassan could have a blood test.
The results were positive for Hepatitis B …

I told the immigration
of Hassan's disease. I tried everything possible but the doors were
closed to me. I rang the health Minister, I spoke to my doctor about
Hassan. I rang everyone I could think of. I tried to get me doctor to
go in but IDC told me that we were not allowed. I was told NO!! I tried
to get everything for my husband but there was no help. I have explained
to a lady at Villawood about Hassan and the lady said she would look
into it and get back to me, but yet again, no returned answer. My husband
complained on numerous occasions but nobody helped. This is something
that should not have happened. He is stuck with disease for the rest
of his life, he should have been looked after but he was not!!

(b) Written material
provided by the Department

In a letter dated
6 October 2000, the Department gave a chronology of the treatment received
by Mr Ghomwari after his return to the VIDC:

[o]n 20 June 2000
Mr Ghomwari complained of abdominal discomfort. He also complained of
general malaise and shivering, although he was afebrile at this time.
Mr Ghomwari was examined by Dr Amin, the ACM centre doctor who was unable
to elicit any overt symptoms. Dr Amin suggested to Mr Ghomwari that
his blood be tested for Hepatitis and liver function. Mr Ghomwari refused
to have any blood tests. It was Dr Amin's opinion that active treatment
was not required at that stage …

On 19 September
2000 Mr Ghomwari consented to have blood samples taken for screening.
This confirmed that he had at some time been infected with Hepatitis
B.

Mr Ghomwari has
received medical attention whenever it has been requested, and on the
occasion mentioned above, refused medical attention when it was offered.
Mr Ghomwari had up until very recently refused to have blood drawn to
check his claim that he is Hepatitis B positive. He has, however, displayed
no obvious symptoms of illness since his return to Villawood from Silverwater
MRRC and on the one occasion when he had complained of feeling ill,
refused further investigation.

The Department advised
that a detainee may engage an external medical specialist in relation
to a health complaint. It stated that:

[i]t is a private
matter between the detainee and the medical services provider whether
further medical opinions are required and how such services are accessed.
ACM has a policy [and this policy was attached] of advising all new
detainees, as part of their initial Health Assessment, that they are
entitled to access private medical treatment and the process for doing
so. At no time has Mr Ghomwari made such a request.

Policy No. 3.3 in
the ACM Operating Manual entitled "Obtaining Health Services Outside
of the Centre" provides:

4.1 When medical,
paramedical and/or psychiatric examination of detainees by private medical
officers is requested:

4.1.1 The request
must be made in writing to the Detention Services Manager Health care
(DSMHC), through the Centre Manager.

4.1.2 The DSMHC
must approve the request in writing.

4.1.3 The detainee
must pay all costs in advance, including the cost of transportation
and security.

4.2 ACM staff may
provide a summary of relevant information from detainee's medical records
to private medical officers. The detainee shall give written permission
in advance for the release of this information.

4.3 Private medical
officers will be expected to provide copies of all reports to ACM.

4.4 The ACM Medical
Officer is not obliged to follow any recommendations or instructions by
any private medical officer, hospital, or other health provider. Any such
recommendation will be considered at the discretion of the medical officer.

In a letter dated
29 March 2001, the Department further advised:

Mr Ghomwari advised
Villawood IDC medical personnel on 8 May 2000, that he suspected he
had contracted Hepatitis B while accommodated at Silverwater MRRC…

It is not the normal
practice for immigration detainees to undergo medical screening when
being transferred from a State correctional facility back to an Immigration
detention facility. However, where there is a reason to suspect that
a detainee may have been exposed to a health risk while accommodated
in a State correctional facility, a medical screen will be performed.
As Mr Ghomwari complained of a possible Hepatitis B infection, he underwent
a medical screen upon his arrival at Villawood IDC.

The Department also
provided Mr Ghomwari's medical records to this inquiry from the date of
his return to the VIDC on 8 May 2000 to the date of his voluntary departure
on 21 October 2000.

There are four entries
in these records relating to Mr Ghomwari's Hepatitis B as follows:

17.6.00 Complained
of abdominal pain similar to the pain he experienced what [sic] he has
had Hepatitis and shivering and feeling unwell as it was described by
the detainee.

20.6.00 Given H/O
past exposure to Hep B, IV substance abuse history? No abnormal symptoms
at present. Needs no active Rx [treatment]. Suggested blood test for
Hep B serology and LFT. Pt refused same. [Signed] Dr Amin

21.6.00 Was called
by officer to see Mr Ghomwari. Refused to have medication, refused blood
to be taken.

19.9.00 Blood taken
for Hep B and C VRRC and HIV.

These medical records
also contained a Pathology Report from the Macquarie Pathology Services
for Mr Ghomwari. This Report was printed on 21 September 2000 and stated
that it related to blood that was taken on 19 September 2000. The results
of the tests undertaken in respect of that blood were detailed as follows:

Hepatitis B Surface
Antigen Detected
Hepatitis B Surface Antibody < 10 (>10)
Hepatitis B Core Antibody Detected
Hepatitis B e Antigen Not detected
Hepatitis B Antibody Not detected

Suggests chronic
Hepatitis B virus (HBV) carrier. If this is the initial diagnosis please
send a further sample to confirm. If confirmed positive, suggest monitor
HBsAg, HAeAg, LFT's and alpha-fetoprotein every 6 - 12 months. Furthermore,
it would be worthwhile investigating sexual and household contacts for
HBV infection.

Hepatitis C virus
antibodies may not be detected up to 6 months after infection. Suggest
a repeat sample after an appropriate interval if clinically indicated.

(c) Issues in
dispute

An examination of
the written material provided by the parties revealed that the following
issues were in dispute:

(i) whether Mr Ghomwari
experienced symptoms relating to Hepatitis B after his return to the VIDC;

(ii) whether Mr Ghomwari
required medical treatment for Hepatitis B after his return to the VIDC.
If so, what was the nature of the treatment that he should have received?;

(iii) whether Mrs
Ghomwari made any attempt to obtain medical treatment for her husband
and, in particular:

  • did Mrs Ghomwari
    make a complaint to Ms Kay Symons of the Department about the level
    of medical treatment her husband received at the VIDC?; and
  • did Mrs Ghomwari
    approach ACM officers and request that she be permitted to bring her
    own doctor to the VIDC to treat her husband, at her own expense.

(d) Evidence at
the hearing on 15 December 2001

As I was unable to
determine the above issues on the written material provided, I considered
it necessary to hear oral evidence from relevant persons. On 15 December
2001, I convened a hearing where oral evidence was given by the following
persons:

  • Mrs Ghomwari;
  • Dr Amin;
  • Ms Kay Symons;
    and
  • Mr Peter Mitchell.

I summoned both Ms
Symons and Mr Mitchell to appear and answer questions at this hearing.

Mrs Kylie Ghomwari

At the hearing on
15 December 2001, Mrs Ghomwari indicated that her complaint was about
the level and quality of medical treatment received by her husband after
his return to the VIDC.

Mrs Ghomwari asserted
that her husband was a chronic Hepatitis B carrier and that she was aware
of this because her husband had had a blood test at the MRRC and had showed
her the results. Mrs Ghomwari was of the belief that her husband received
specialist treatment for his condition in the MRRC, although he did not
require any medication, and thought that he should also have been seen
in the VIDC by a specialist with expertise in treating Hepatitis B.

While at the VIDC,
Mrs Ghomwari gave evidence that her husband had the following symptoms:

  • blood in his
    urine;
  • general feeling
    of being unwell;
  • vomiting; and
  • wanting to sleep
    all the time.

Mrs Ghomwari stated
that her husband had these symptoms over the entire time he was in the
VIDC and that his symptoms did not really change over time. She stated
that sometimes her husband's symptoms would go away for a couple of days
but then they "would come back furious". She asserted that this
was because he was a chronic Hepatitis B sufferer. Mrs Ghomwari stated
that when she would go to visit her husband she would often have to wake
him up because he slept all day. She asserted that the Detention Officers
at the VIDC also noticed that her husband was unwell and would regularly
comment to her when she arrived at the IDC, words to the effect of: "Look
after him, Ghomwari is sick today" and "Ghomwari is not feeling
well."

Mrs Ghomwari gave
evidence that she was aware that her husband had seen a doctor on a couple
of occasions at the VIDC but:

A: [o]nce - he
felt it coming on. Like, he could feel it. He was more tired, more angry,
more everything, and so I told him to go and he asked - I don't know
how the rules work at Villawood, but I know that he asked could he go
and see the doctor and he went there. I don't know whether it was to
the nurse or to the doctor or whoever it was, and they said "No,
you can't have it," and he said, "But I need one today,"
and they said, "No, I'm sorry, you can't".

Q: Sorry, you need
a doctor today?

A: Well, he needed
to have it, so that he himself knew, because that's what they told him
at Silverwater [the MRRC]. When you felt that you've got to have it,
so then you could tell, so I don't know. A lot of times I'd say, "What
have they given you?" Panadol or something, brush him aside, I
don't know. [21]

In cross-examination
the Department put her husband's refusal to have a blood test to Mrs Ghomwari
and asked for an explanation. Mrs Ghomwari asserted that, as far as she
was aware, her husband refused this test because:

You know, when
you go and you're nice and you ask if you can have a blood test and
they're refused, it's at that time that he needed it done. So then they
come two days later, or I don't know when it was, and then he said,
"No, I don't want one now," because when you need something
- it's like you go to the doctor and say, "I want to see,"
and he goes, "No. I'm not going to see you". You don't want
to go back. You know we are not talking about somebody that's outside.
We are talking about somebody that's inside. So it's completely different…
[22]

Mrs Ghomwari contended
that she did two things to try and obtain medical treatment for her husband
in the VIDC. First, she tried to get an outside doctor to visit her husband
in the VIDC. She stated that she asked Detention Officers at the reception
of the VIDC and those assisting with security if this was possible but
they told her that it was not as, for security reasons, the only doctor
allowed into the VIDC was the IDC doctor. Mrs Ghomwari stated that neither
she nor her husband were aware of the ACM Policy No. 3.3 on external medical
treatment. Mrs Ghomwari asserted that if she had known that she could
make a request in writing for her own doctor to visit her husband she
would have done so and would have paid for all associated expenses.

Second, Ms Ghomwari
asserted that she had spoken to Ms Kay Symons. She stated that approximately
a week or two after her husband returned to the IDC:

A: I went and spoke
to Kay Symons … We sat down and I told her of Hassan's Hepatitis
B. She told me she already knew about it, and I told her that I was
worried for him because he was bleeding in his urine. He was feeling
unwell, he was vomiting he wanted to sleep all the time. She said that
she would get back to me. [23]

A: She said that
she would fix it … and I never heard anything.

Q: Did you ever
try to follow that up with her when you saw her on other occasions?

A: Yes. She was
busy once. I think I said to her, "Can I talk to you?" She
said "Look, I think" - I think she said that she was busy
and she had to go somewhere or something. [24]

Under cross-examination
by the Department, it was suggested to Mrs Ghomwari that she could have
raised this matter again with Ms Symons if she had wanted to. Mrs Ghomwari
responded that she did not feel that she should badger Ms Symons.

During her evidence,
Mrs Ghomwari tendered a pamphlet produced by the Gastroenterological Society
of Australia. This pamphlet became Exhibit A. It states that the
following medical supervision and monitoring is required by Hepatitis
B carriers:

People who are
carriers of Hepatitis B, but are thought to have very little damage
to their liver (ie. Are HBe antigen and HBV-DNA negative), have normal
physical examination and normal ALT level, should still see their doctor
annually for a check-up. There is a small chance of ongoing liver damage
in these people, more so if the Hepatitis B infection occurred at birth.

People who are
thought to have liver damage from Hepatitis B should see their doctor
regularly. Often the doctor will recommend a physical examination and
ALT level every 6 to 12 months. People who are Hepatitis B e antigen
positive are at risk of continued liver damage and should definitely
see their doctor at least annually.

People who already
have cirrhosis of the liver will generally be kept under close supervision
by their doctors. Sometimes regular ultrasound examinations and alpha
fetoprotein levels are recommended. People with very advanced liver
disease may be referred to a liver transplant unit for a discussion
about their transplantation.

Dr Amin

During his evidence
at the hearing Dr Amin had access to, and was asked questions about, Mr
Ghomwari's medical records which were produced by the Department and reproduced
at Part 3.4.1.2(b) of this Report. Under cross-examination on behalf of
the Department, Dr Amin asserted that these records were accurate, with
every consultation recorded in accordance with the normal practice.

Dr Amin gave evidence
that on 20 June 2000 he had a consultation with Mr Ghomwari. He did not
have Mr Ghomwari's file from the MRRC at the time of this consultation.
Mr Ghomwari gave a history to him of exposure to Hepatitis B on presentation
but did not have any "abnormal symptoms" such as, gastritis,
diarrhea, abdominal discomfort, yellow eyes or nausea. When asked about
the symptoms of Hepatitis B, Dr Amin agreed that some people with Hepatitis
B have symptoms and some people do not, and that those symptoms may fluctuate
over time. If a person is a chronic Hepatitis B carrier, Dr Amin asserted
that that person will have the normal Hepatitis B symptoms "but it
can have more intensity about it".

At the consultation
on 20 June 2000, Dr Amin formed the opinion that Mr Ghomwari did not require
any treatment but suggested a blood test. Dr Amin stated that:

A: I think when
somebody presents with a suspicion of Hepatitis B, the best thing to
do is to ascertain with a blood test as to whether there is a truth
to it, in way that, if the illness is there or not; and if it is there,
at what stage is it, the illness. So that you can make the decision
based on that information as to which way you want to go. [25]

And later in his
evidence:

A: … if somebody
says, "I have had Hepatitis B, " or, "I had Hepatitis
B," I would like to know at what stage is it. Even if somebody
has done a blood test, say six months or four months or five months
ahead of you, I would still would like to know for my own surety as
to how far is it and what is happening. [26]

Mr Ghomwari refused
this test. Dr Amin stated that at the time he suggested the blood test,
he "would have" counselled Mr Ghomwari about the consequences
of refusing to have the test and explored all his reasons for doing so.
It was not his normal practice to refer patients who refused blood tests
in such circumstances for counselling by a social worker or psychologist
about the consequences of this refusal. Dr Amin asserted that, after Mr
Ghomwari's refusal to submit to a blood test, it was the responsibility
of the nursing staff to ensure that he was placed on the clinical list
in a couple of weeks and offered another test.

In relation to treatment
for Hepatitis B, Dr Amin gave the following evidence:

Q: What's the normal
treatment for Hepatitis B?

A: If somebody
has Hepatitis B, there is no aggressive treatment about it in the form
of any antibodies which are known to mankind, as such, yet; but there
is a conservative treatment in the way of bed rest, fluids maintenance
and dietary restrictions, like engaging not in heavy meals and small
frequent meals is the way to go , so that abdominal pain doesn't become
a bit of a problem. Gastric symptoms, if there are any, they can be
aided by symptomatic relief, and basically you monitor the blood to
see whether - and also abstinence from offending behaviour. If there
is intravenous drug abused, that should be avoided because that can
further augment the illness. So that's the general way of handling Hepatitis
B, and that's the standard by which the community operates. [27]

Dr Amin stated that
the long term effects of Hepatitis B may be liver damage and at the worst
end of the spectrum liver cancer and cirrhosis (scarring of the liver).
For this reason, Dr Amin stated that, with Hepatitis B:

A: … the liver
is the offending organ, and one needs to do a liver function test …
You want to keep monitoring on that.

Q: Regular monitoring?

A: Frequent, like
six months to 12-month monitoring as to what the liver is doing. If
the person continues a good lifestyle, it can improve.

Q: Do you think
that it's important for someone who is a chronic Hepatitis B carrier
to seek some specialist medical treatment from a liver specialist?

A: Not specialist
medical treatment initially until you do liver function test and see
what's that like, and also you do some other tumour markers on a blood
test. So monitoring is more important than seeing a specialist. [28]

Dr Amin also gave
evidence that a Hepatitis B carrier is able to infect other persons and
therefore certain precautions should be taken. Dr Amin advised that Hepatitis
B carriers should not be in food handling areas, razor shaving and the
sharing of toothbrushes is to be avoided and if a Hepatitis B carrier
has a bleeding wound s/he should not allow anybody else to come into contact
with it and should seek medical assistance to close the wound. In re-examination,
Dr Amin advised that, in his opinion, the biggest public health risk in
relation to the spread of Hepatitis B is from unchecked blood transfusions.

During his evidence,
Dr Amin was also shown Mr Ghomwari's Reception Medical Screen form, which
was filled out by a nurse on 8 May 2000, the day Mr Ghowmari returned
to the VIDC. As Mr Ghomwari had advised the VIDC on this day that he had
Hepatitis B, Dr Amin was of the view that Mr Ghomwari should have been
seen by a doctor at the VIDC clinic within a short space of time. After
consulting the medical records, he confirmed that it did not appear that
this had occurred.

Dr Amin was questioned
by Counsel Assisting the Commission about an entry in the medical records
on 17 June 2000 (a few days before Dr Amin examined Mr Ghomwari). This
entry records that on this day Mr Ghomwari "complained of abdominal
pain similar to the pain he experienced what (sic) he had had Hepatitis
and shivering and feeling unwell". Dr Amin responded to those questions
as follows:

Q. On 17 June,
when Mr Ghomrawi was complaining of abdominal pain, shivering and generally
feeling unwell, do you know who he saw on that occasion? Was it a nurse,
or a -it's the first record.

A. It must have
been a nurse. It must be some nurse who has seen him.

Q. That would be
the usual procedure, would it?

A. Yes.

Q. So even if it
was on a Saturday, it would have been a nurse you think that he would
have seen...

A. Nurse, yes.
It's definitely not any doctor's signature there.

Q. That was on
the 17th, which was a Saturday, and then you examined him on the 20th
---

A. The 20th.

Q. --- which was
a Tuesday ---

A. Right.

Q. --- a few days
afterwards.

A. Mm'hm.

Q. What was the
reason for the delay? Do you know why he wasn't seen on the Saturday?

A. Well, Saturday,
usually there is no doctor in the centre.

Q. At all.

A. No.

Q. What about in
an emergency situation?

A. They can contact
a doctor on the phone, but usually there is no doctor in the centre.

Q. So in a circumstance
like this, where someone who has Hepatitis B is complaining of those
symptoms, would you have considered that to be an urgent situation requiring
medical attention on that day?

A. I think they
can contact a doctor and get a symptomatic relief ordered for the patient,
because if it is Hepatitis B consideration, then the blood tests can
be initiated at that point in time for early information; and usually,
if there is a serious enough medical emergency, they transfer the person
to the hospital and nurses have the right to do so.

Q. So you're saying
in this situation he should have probably seen a doctor to get some
kind of symptomatic relief.

A. Not necessarily
seen a doctor. He can get a symptomatic relief on a phone order from
a doctor and then get some sort of consent to carry out a blood test
so that by Monday, more information is available.

Q. But it doesn't
appear from those records that that occurred, does it?

A. No.

Q. Given that it
was the weekend when he made the complaint, can you think of a reason
why someone wouldn't have seen him on the Monday when a doctor would
have been available?

A. I have no idea
why. Probably there was no doctor at that time on Monday.

Q. Is it the case
that on some days at Villawood there is no doctor available?

A. It can happen,
because some day - you know, if the doctor is one who has planned to
come hasn't been able to come on that day, that is one possibility.
The second possibility is that, because of the arrangement being flexible,
perhaps the doctor can't make it on that day.

Q. Are there any
doctors who work full time at the ---

A. No, there is
no full-time doctor.

Q. So doctors come
in on arrangements like your arrangements, contractual arrangements
for a few hours.

A. Yes. It is a
contractual flexible arrangement.

Q. Do you get called
in when there is a situation when someone needs to see a doctor, or
do you just turn up for set hours?

A. We turn up at
our set clinical hours, with some flexibility about it because you could
be caught up with something that's totally not related to Villawood
or any detention services and that may distract us from that. Apart
from that, they can contact a doctor on the phone if need be. [29]

During his evidence,
Counsel Assisting the Commission referred Dr Amin to the Pathology Report
for Mr Ghomwari printed on 21 September 2000. As noted above, this Report
contained the results of blood tests conducted following the taking of
blood on 19 September 2000 and recommended that a further sample of blood
be taken to confirm the result. If Mr Ghomwari was a chronic Hepatitis
B carrier, the Report recommended that HBsAg, HAeAg, LFT's and alpha-fetoprotein
be monitored every 6-12 months. After checking the medical records, Dr
Amin confirmed that a further sample was not taken from Mr Ghomwari or
sent for analysis, that there was no further monitoring of Mr Ghomwari's
situation and that Mr Ghomwari was not advised of these test results.
In re-examination, he was asked:

Q: Regarding the
Pathology Report, where it says "suggests chronic Hepatitis B",
you said that you might have expected a further test. When might have
that been appropriate? Would it be immediately afterwards?

A: When I get a
result like this, I normally tend not to asked for the entire battery
of tests to be done, but what I suggest a lab to proceed and do is liver
function test and alpha-beta proteins, which is a tumour marker for
future, or just to know the base line liver function, where they are
at and where the alpha-beta protein is not detected. Those are the two
that I would like to recommend if I see a report like this, and that's
what I usually do as a standard practice when I come across a result
like that.

Q: How long would
it normally take to organise that? On seeing this sort of test result,
would you try to arrange further tests immediately?

A: As soon as I
see it, I will organise - I'll run a request straight away. [30]

Dr Amin gave evidence
that, given the seriousness of the test results, Mr Ghomwari should
have had his results explained to him and further monitoring of his
situation should have occurred. Dr Amin also accepted that the public
health implications should have been explored.

Ms Kay Symons

At the hearing, Ms
Symons gave evidence that she had been working at the VIDC since 1993.
At the relevant time in 2000, her role was as an Immigration Liaison Officer
which involved being a conduit for information between detainees and the
Department and assisting detainees with any problems they may encounter
in the IDC. She stated that:

we also monitor
the contract, ACM's performance under the contract, and we were required
to report on them. The Department does a quarterly report … So
that in my role, if I found that ACM hadn't followed through on an issue,
I would report that to the Business Manager who did the assessments.
[31]

Ms Symons gave evidence
that she remembered Mr Ghomwari and that she was aware he was a Hepatitis
B carrier and became aware of this fact prior to his return to the VIDC.
Ms Symons asserted that she remembered having a conversation with Mrs
Ghomwari about her husband. She thought that this conversation had occurred
in early September 2000. She stated that Mrs Ghomwari had advised her
in this conversation that her husband had Hepatitis B and that he had
blood in his urine. As a result, Ms Symons spoke to the ACM's Health Services
Co-ordinator (because ACM are responsible for "guarding and caring
for detainees in detention centres") and explained that Mrs Ghomwari
had told her that her husband had blood in his urine. Ms Symons asserted
that she told this Co-ordinator that "I need him checked out".

Ms Symons stated
that she then had a conversation with Mr Ghomwari in which she told him
that she was aware of his problem and that he would be "checked out".
Ms Symons asserted that she then told him: "I want you to ask to
see me … if they don't do any checks on you and you have any more
problems with that" . [32]

Mr Ghomwari agreed
and Ms Symons thought that he seemed happy with her efforts. Ms Symons
stated that he did not approach her at any later stage about this problem,
although she thought that he seemed more comfortable talking to her.

Ms Symons did not
get back to Mrs Ghomwari about her husband as she assumed that Mr Ghomwari
would inform her of developments.

Ms Symons stated
that in the week following these discussions she attended, as the Departmental
representative, at an ACM morning management meeting in the VIDC. Ms Symons
asserted that she raised the issue of Mr Ghomwari at this meeting and
was told that he was having blood tests done. Ms Symons took no further
action in relation to this issue as, in the usual course, ACM got back
to her with the results of the tests. Her evidence on this point was as
follows:

Q: Did you follow
up on that again to find out what the results were of the tests and
what treatment …?

A: Not at that
time, no. Because what I was waiting on -in normal circumstances then,
and I hadn't supposed that was any different, was that usually they
came back to me with the results of the tests and whether or not they
were referring to a medical specialist.

Q: So they didn't
come back to you?

A: They didn't
come back, no.

Q: Would that have
indicated to you that maybe the tests weren't done?

A: No, because
the tests - Lyn [the Health Services Co-ordinator] said she was doing
the tests.

Q: But the fact
that they hadn't got back to you …

A: Yes.

Q: … that
wouldn't prompt you to then go back to the and say, "What's happening
with this? I'm concerned about this man."?

A: Yes. I don't
know. I guess in that way I had an expectation that they would get back
to me on that issue.

Q: But they didn't.

A: They didn't.
[33]

Although she later
had conversations with Mrs Ghomwari, Ms Symons asserted that Mrs Ghomwari
never raised this issue with her again.

Ms Symons denied
that the issue of obtaining private medical treatment or assistance for
her husband was ever raised with her. She was not aware of ACM Policy
No. 3.3.

Mr Peter Mitchell

At the hearing, Mr
Mitchell gave evidence that he had worked on and off at the VIDC for six
years and that between November 1999 and August 2000 he was the Departmental
Business Manager at the VIDC. Mr Bill Dospott was the Departmental Business
Manager at the VIDC between August 2000 and 31 October 2000. Mr Mitchell
was aware of Mr Ghomwari's presence in the IDC through his meeting with
case managers, although he did not believe that he had ever met him.

Mr Mitchell gave
evidence that medical services at the VIDC are provided by ACM who have
a contract with the Department. As noted by Ms Symons, the Department
monitors the performance under the contract of ACM against the Immigration
Detention Standards. Performance is monitored by way of daily meetings
with senior levels of ACM. The Department investigates all issues that
are raised by detainees, case managers or compliance teams. Mr Mitchell
confirmed that, in a situation where a health complaint had been raised
with her, it was Ms Symons role to "pursue … if she received
information, to check with ACM and to satisfy herself about whether appropriate
action and been taken". [34]

In relation to the
availability of medical services in the VIDC, Mr Mitchell gave the following
evidence in response to questions by Counsel Assisting the Commission:

Q. Just in terms
of medical treatment for detainees, do you know if there are any doctors
permanently stationed at Villawood?

A. Permanently
stationed?

Q. As in work there
every day, full-time.

A. Yes, there are
two.

Q. They're there
Monday to Friday?

A. No, I think
they work 20 hours each under contract, but I wouldn't say exactly what
day each one of them comes in. I just don't know. But they're available,
certainly, any time, but I'm just not sure what their roster requirement
to appear is.

Q. So you're saying
that, at any given time, between Monday to Friday, there is a doctor
present at Villawood

A. Yes. Well, not
for the 24 hours covering Monday to- Friday, but I think there's a doctor
there every day for some part of the day, but I just couldn't tell you
how many hours on Monday (indistinct) but I think they're allocated
20 hours under contract, each.

Q. So it's not
the case that there's someone there, say, between 9.00 and 5.00.

A. I wouldn't think
so. No, I think that depends on the numbers of patients to actually
see them, too. On a Tuesday, there might only be enough of them to be
there for two hours, for example.

Q. What about if
there's an out-of-hours emergency situation?

A. They're available
24 hours.

Q. So there are
people on call who can come there 24 hours, seven days a week.

A. Yes, that's
right. That's true. [35]

Initially, in his
evidence, Mr Mitchell advised that there was no specific policy on how
to handle a situation where a detainee wanted to access private medical
treatment but he would imagine that ACM would be able to facilitate that.
He later stated that he could not say categorically whether ACM did or
did not have a policy covering external medical treatment. Mr Mitchell
was of the view that, from the Department's perspective, there was no
problem with a detainee obtaining private medical treatment. He stated
that he would be concerned and surprised if there was a flat refusal to
permit a detainee to obtain private medical treatment as it wouldn't "sit
with the broader approach that I would encourage." If there was such
a refusal, Mr Mitchell did not consider this to be a problem with training
of ACM staff, rather a lack of familiarity by those staff members with
the ACM Operating Manual.

(e) Findings of
Fact

After considering
all of the evidence before this inquiry detailed above, I make the following
findings of fact:

  • It is not disputed
    and I find that, at the time Mr Ghomwari was returned to the VIDC on
    8 May 2000, he had Hepatitis B and was a chronic Hepatitis B carrier.
    It is also not disputed and I find that, from this time until his voluntary
    departure from Australia on 21 October 2000, Mr Ghomwari experienced
    symptoms which included all of those detailed by his wife in her evidence
    including blood in his urine, vomiting, lethargy and a general feeling
    of being unwell. I accept that these symptoms would, on occasions, abate
    but then come back with a greater intensity. I accept that ACM officers
    commented to Mrs Ghomwari about her husband's poor state of health.
  • I accept that
    there is no active treatment for chronic Hepatitis B carriers, although
    symptomatic relief is available. I also accept that although many carriers
    remain in good health, in the longer term there is an increased chance
    that chronic carriers will develop liver cancer and cirrhosis. I find
    that, because of the serious potential consequences of this disease,
    it is imperative that there is regular monitoring of chronic Hepatitis
    B carriers by medical health professionals. As the Department concedes
    in their submissions of 11 January 2002, "[b]lood tests are necessary
    in the first instance … to ascertain whether there is any liver
    damage" .[36] The need for such tests was confirmed
    by both the evidence of Dr Amin, who recommended that two tests be conducted
    - a liver function test and a test for alpha-beta proteins - and the
    Pathology Report which suggested the monitoring of HBsAg, HBeAg, LFT's
    and alpha-fetoproteins. Once these tests have been conducted, the extent
    of liver damage will determine the nature and frequency of the medical
    supervision and monitoring required by a Hepatitis B carrier (see Exhibit
    A, as detailed in Part 3.4.1.2(d) of this Report).
  • I find that Mr
    Ghomwari advised the VIDC during his Reception Medical Screen on 8 May
    2000 that he had contracted "Hepatitis B while in prison"
    . [37] Despite this advice, I find that the VIDC took
    no action at that time to ascertain the extent of the medical attention
    required by him by undertaking the testing referred to above or by obtaining
    his medical file from the MRRC.
  • After consulting
    the medical records, which Dr Amin asserted were an accurate reflection
    of the medical attention received by Mr Ghomwari in the VIDC, I find
    that Mr Ghomwari received medical attention in relation to his Hepatitis
    B on four occasions after his return to the VIDC, namely, on 17, 20
    and 21 June 2000 and 19 September 2000. On Saturday, 17 June 2000, Mr
    Ghomwari "complained of abdominal pain similar to the pain he experienced
    what [sic] he had Hepatitis and shivering and feeling unwell …".
    I accept Dr Amin's evidence that it is probable that Mr Ghomwari saw
    a nurse on this occasion, as there are no doctors in the VIDC on Saturdays,
    but that although he probably required it, he was not provided with
    symptomatic relief or any other kind of treatment. I find that this
    was the occasion referred to by Mrs Ghomwari in her oral evidence, when
    her husband requested medical assistance from the VIDC but was refused.
  • I find that Mr
    Ghomwari was not permitted to see a doctor until Tuesday, 20 June 2000.
    I find this was because, at the time, there were no full-time doctors
    in the VIDC and the attendance of medical practitioners at the centre
    was based on demand. I find that this situation continues to the present
    day. To the extent that Dr Amin's evidence conflicts with that of Mr
    Mitchell, who asserted that medical care by a doctor was available twenty
    four hours a day, seven days a week, I prefer that of Dr Amin. Dr Amin
    has worked at the VIDC for eighteen months and seemed more familiar
    with the arrangements at the centre for medical practitioners than Mr
    Mitchell.
  • I find that when
    Mr Ghomwari was examined by Dr Amin on 20 June 2000, he was not given
    any treatment, as he was not suffering any symptoms at that time. I
    accept that Mr Ghomwari was offered a blood test on this day but that
    he refused such a test. As Mr Ghomwari has not given evidence to this
    inquiry, it is not clear why Mr Ghomwari refused such a test. I note
    Mrs Ghomwari's evidence that she believed her husband had refused this
    test because he had requested a test on a prior occasion and had been
    refused.
  • I find that, despite
    the potential seriousness of this refusal to have a blood test, only
    one attempt was made by a medical health professional to offer Mr Ghomwari
    a blood test at a later time. This occurred on the following day, 21
    June 2000. Otherwise, from this time onwards, no attempt was made by
    any medical health professional in the VIDC, whether it was the responsibility
    of Dr Amin or any other person, to monitor Mr Ghomwari's medical condition.
  • I accept that
    Mrs Ghomwari had a conversation with Ms Symons concerning her husband's
    health in early September 2000, and not a week or two after Mr Ghomwari
    was returned to the IDC as suggested by Mrs Ghomwari. Given that Mr
    Ghomwari was complaining to Ms Symons about her husband's medical condition
    and what she perceived to be a lack of medical attention in the IDC,
    I have formed the view that it is more likely that she made this complaint
    after he had spent a period of time in the IDC, rather than soon after
    his transfer there. This conclusion is supported by the letter sent
    by Mrs Ghomwari to the Commission which was received on 24 April 2001.
    This letter was written much closer in time to the events in question
    and, in this letter, Mrs Ghomwari refers to this conversation occurring
    "a few months before Hassan left".
  • I accept that
    as a result of this conversation, Ms Symons took the steps outlined
    by her in her evidence to bring Mr Ghomwari's medical condition to the
    notice of ACM. The medical records indicate that Mr Ghomwari had a blood
    test on 19 September 2000. Although Dr Amin gave evidence that he thought
    that this may have been a routine blood test taken for immigration purposes,
    I find that this blood test occurred as a result of Ms Symons efforts.
  • I find that the
    results of this blood test were set out in the Pathology Report printed
    on 21 September 2000. This Report confirmed that Mr Ghomwari was indeed
    a chronic Hepatitis B carrier and recommended that a further sample
    of blood be taken and, if the result was confirmed, that other testing
    take place.
  • I find that after
    the taking of Mr Ghomwari's blood, and despite the results of this Pathology
    Report, no further action was taken by anyone in the VIDC in relation
    to Mr Ghomwari's medical condition prior to his voluntary deportation.
    In particular, I find that the recommendations in the Pathology Report
    were not followed. No attempt was made at this stage to obtain Mr Ghomwari's
    file from the MRRC. Most importantly, no attempt was made to advise
    Mr Ghomwari of these results, despite the fact that he was seen by medical
    staff in the VIDC in relation to other matters on sixteen occasions
    after 21 September 2000.
  • I find that these
    failures on the part of the VIDC occurred despite the fact that Ms Symons
    had been specifically requested by Mrs Ghomwari to investigate her husband's
    medical condition with a view to providing him with the medical assistance
    he required. I find that after providing the catalyst for the taking
    of Mr Ghomwari's blood, Ms Symons did not follow this matter up with
    ACM despite it being her role, as Immigration Liaison Officer, to do
    so.
  • While it may not
    have been necessary in the circumstances for Mr Ghomwari to have seen
    a specialist about his illness, I find that, while at the VIDC, Mr Ghomwari
    did not have any option of doing so. I accept Mrs Ghomwari's evidence
    that if she had known that she could make a request in writing for her
    own doctor to visit her husband she would have done so, and that she
    was prepared to pay for any associated expenses. I accept the evidence
    of Mrs Ghomwari that she made enquiries of both Detention Officers at
    the reception area of the VIDC, and those performing security duties,
    about the possibility of bringing a private doctor into the VIDC to
    examine her husband. I also accept that Mrs Ghomwari was told by these
    Detention Officers that it was not possible for her to arrange for her
    own doctor to visit her husband. In my view, it is likely that these
    Officers were in fact unaware of ACM Policy No. 3.3. Evidence given
    at the oral hearing indicated that some of the highest ranking officers
    in the VIDC at the time, Ms Symons and the Departmental Business Manager,
    Mr Mitchell, were totally unaware of this Policy.

The fact that Mrs
Ghomwari is unable to recall the names, if she ever knew them, of the
Detention Officers she spoke to does not, in my view, diminish her evidence
on this point. Nor does the evidence of Mrs Ghomwari become less credible
because she did not make this request of Ms Symons or any other Departmental
officer. I find that it was reasonable for her to assume that the Officers
she spoke to were familiar with ACM Policy and Procedures.

(f) Was there
a breach of article 10(1) of the ICCPR?

Article 10(1) requires
that minimum standards of humane treatment be observed in the conditions
of detention. The Standard Minimum Rules for the Treatment of Prisoners
[38] (Standard Minimum Rules) and the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment
[39] (Body of Principles) are United Nations instruments
which articulate minimum international standards of treatment for persons
deprived of their liberty, including immigration detainees. Although the
Standard Minimum Rules and Body of Principles are not binding on Australia
[40] , they provide valuable guidance in interpreting
and applying article 10 of the ICCPR [41]. In Mukong
v Cameroon
[42], the UNHRC stated that:

[c]ertain minimum
standards regarding the conditions of detention must be observed regardless
of a State party's level of development. These include, in accordance
with Rules 10, 12, 17, 19 and 20 of the U.N. Standard Minimum Rules
for the Treatment of Prisoners, minimum floor space and cubic content
of air for each prisoner, adequate sanitary facilities, clothing which
shall be in no manner degrading or humiliating, provision of a separate
bed, and provision of food of nutritional value adequate for health
and strength. It should be noted that these are minimum requirements
which the Committee considers should always be observed, even if economic
or budgetary considerations may make compliance with these obligations
difficult.

The UNHRC has affirmed
in numerous cases that the obligation imposed by article 10(1) of the
ICCPR to treat individuals with respect for the inherent dignity of the
human person encompasses the provision of adequate medical care during
any period of detention [43]. The Standard Minimum Rules
and the Body of Principles provide guidance as to the medical services
that should be provided to all administrative detainees held in detention.

Rules 22, 24 and
25 of Part 1 [44] of the Standard Minimum Rules provides
that:

Medical services

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.

(3) The services
of a qualified dental officer shall be available to every prisoner.

…
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.

Rule 95 of the Standard
Minimum Rules provides that persons arrested or imprisoned without charge
shall be given the same protection as that given to arrested or remanded
prisoners under Part II, section C. Part II, section C of the Standard
Minimum Rules provides that:

91. An untried prisoner
shall be allowed to be visited and treated by his own doctor or dentist
if there is reasonable ground for his application and he is able to pay
any expenses incurred.

The Body of Principles
relevantly provide that:

Principle
24
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. Principle 25
A detained or imprisoned person or his counsel shall,
subject only to reasonable conditions to ensure security and good order
in the place of detention or imprisonment, have the right to request
or petition a judicial or other authority for a second medical examination
or opinion.
Principle 26
The fact that a detained or imprisoned person underwent
a medical examination, the name of the physician and the results of
such an examination shall be duly recorded. Access to such records shall
be ensured. Modalities therefore shall be in accordance with relevant
rules of domestic law.

The minimum standards
set by these international instruments in relation to the provision of
medical services to administrative detainees held in detention can be
summarised as follows:

  • a thorough medical
    examination of the detainee should be undertaken upon arrival in the
    institution, and thereafter as necessary, "with a view particularly
    to the discovery of physical … illness";
  • all necessary
    measures should be taken to combat and treat any illness detected by
    any such medical examination;
  • places of detention,
    such as the VIDC, should have medical staff available on a daily basis
    to see all persons who complain of illness; and
  • detainees, like
    Mr Ghomwari, are entitled to be examined and treated by his/her own
    doctor, provided s/he meets all associated expenses.

In its written submissions
dated 11 January 2002, the Department submitted that the treatment provided
to Mr Ghomwari within the VIDC was both adequate and appropriate having
regard to the nature of Hepatitis B and Mr Ghomwari's refusal to submit
to a blood test. It asserted that there was no violation of article 10(1)
as:

[t]he available
evidence indicates that there is no generally accepted treatment for
Hepatitis B. For chronic Hepatitis B carriers, apart from dietary and
lifestyle measures to improve the liver, all that can be done is to
monitor them at intervals of either 6 to 12 months, in the case of those
thought to have some liver damage, or 1 to 2 years in the case of those
thought to have very little or no damage to their liver.

Meaningful monitoring
of chronic Hepatitis B carriers can only begin once the person concerned
has had an appropriate blood test. In Mr Ghomrawi's case, his refusal
(on two occasions) to submit to a blood test delayed the monitoring
process and when he did allow a blood sample to be taken, it was barely
one month before his departure from Australia.

With respect to
the alleged failure to provide Mr Ghomrawi with the opportunity to access
external medical treatment, the Department believes that the evidence
is at best equivocal. But in any event, the Department does not accept
that such a failure could constitute a breach of Article 10(1) of the
ICCPR unless it could clearly be established that the Department had
failed to provide adequate medical treatment within the VIDC (necessitating
recourse to external sources).

After considering
all of the evidence and the submissions of the Department, I have formed
the view that the VIDC failed to provide Mr Ghomwari with the level and
quality of medical services required to meet minimum standards of detention
in violation of article 10(1) of the ICCPR. Using the Standard Minimum
Rules and Body of Principles as a guide, I find that this article has
been breached because of the combined effect of:

· the failure
to conduct a proper medical assessment of Mr Ghomwari's medical condition
upon his return to the VIDC and after his consultation with Dr Amin on
20 June 2000;

On the day of his
return to the VIDC, Mr Ghomwari advised that he was a Hepatitis B sufferer.
At this time, I am of the view that the VIDC was obliged to conduct a
thorough medical assessment, which should have included the taking of
blood and the testing of that blood as detailed above in my findings of
fact. Such an assessment should have occurred whether or not Mr Ghomwari
advised of any symptoms on medical examination. In addition, his medical
file should have been immediately obtained from the MRRC as this would
have contained vital information on the history of his illness and other
tests and treatment undertaken.

The fact that Mr
Ghomwari refused a blood test on 20 June 2000 did not affect this obligation
to fully assess Mr Ghomwari's medical condition. Indeed, one wonders whether
Mr Ghomwari would have refused such a test had he been provided with appropriate
medical treatment from the beginning of his time in detention at the VIDC.

Further, the obligation
to conduct a thorough medical assessment of Mr Ghomwari, including the
wide variety of liver function tests outlined above in my findings of
fact, arose again upon Mr Ghomwari's consultation with Dr Amin on 20 June
2000. Following this consultation, where Dr Amin was advised by Mr Ghomwari
that he had Hepatitis B, I find that the VIDC was obliged to take reasonable
steps to monitor Mr Ghowmari's medical condition, to counsel him about
the consequences of his failure to have a blood test and, given his failure
to submit to one, to offer him the opportunity to have a blood test at
regular intervals.

The jurisprudence
of the UNHRC is consistent with my findings on this point. For example,
in Simpson v Jamaica [45], the UNHRC held that
there had been a violation of article 10(1) of the ICCPR where the author's
medical condition remained undiagnosed and untreated and he was refused
specialist treatment.

  • the failure
    to provide Mr Ghomwari with adequate medical treatment when he required
    it on 17 June 2000;

I have found that
Mr Ghomwari sought medical assistance on 17 June 2000 because he was suffering
the symptoms of his Hepatitis B including abdominal pain and shivering.
I find it unacceptable that he was not offered any symptomatic relief
for his conditions on this occasion, when this could have been easily
obtained by a telephone order from a doctor. Instead, Mr Ghomwari had
to wait four days to be seen a doctor, by which time his symptoms had
abated.

It could not be said
that, at this time or at any time during Mr Ghomwari's detention in the
IDC, there was a medical officer at the VIDC who was able to see him and
other detainees who complained of illness on a daily basis, as contemplated
by Rule 25 of the Standard Minimum Rules. This is clear from Dr Amin's
evidence and seems to be a situation which continues to the present day.

In my view, this
case is broadly analogous to that considered by the UNHRC in Leehong
v Jamaica
[46]. In that case, the UNHRC found a
breach of article 10(1) where the author, a convicted prisoner detained
in a State prison, made requests for medical assistance which were denied.
So too in Brown v Jamaica [47], the UNHRC found
that the author's rights under article 10(1) had been violated. The author,
also a convicted prisoner detained in a State prison, had suffered numerous
asthma attacks but the prison warders were slow in responding to his requests
for assistance, refused to take him to hospital and on some occasions
denied him medication.

  • the failure
    to take reasonable steps to provide Mr Ghomwari with medical care once
    the VIDC became aware of the results of the Pathology Report dated 21
    September 2000; and

The Department, in
its submissions of 11 January 2002, seemed to suggest that the fact that
these results were received "barely one month before his departure
from Australia" was a justification for the failure by the VIDC to
follow the Pathology Report's recommendations. If this is the suggestion,
I do not accept it. First, there is no evidence that the VIDC was aware
of Mr Ghomwari's departure date at the time these results were received.
Second, and in any event, Mr Ghomwari was entitled to a certain standard
of medical care on each day he was in the VIDC. At a minimum, he was entitled
to be advised of the results of his blood test on 19 September 2000 and
asked how he wished to proceed. If he had wanted the further test recommended
to confirm the initial result, he should have been given it. As Mr Ghomwari
had been in the VIDC for approximately three months at this point, and
the VIDC had no idea of the testing and monitoring of his condition that
had occurred in the MRRC, it was imperative that some sort of testing
occur at this point with Mr Ghomwari's consent.

  • the failure
    to permit Mr Ghomwari to be treated by his own doctor while in the VIDC.

As ACM Policy No.
3.3 allowed for examination and treatment of detainees by external medical
practitioners (in accordance with Rule 91 of the Standard Minimum Rules)
and Mrs Ghomwari was prepared to arrange and pay for such a consultation
for her husband, it is unacceptable that this did not occur. This failure
is particularly serious when one considers that the medical care received
by Mr Ghomwari in the VIDC was inadequate to meet minimum standards.

(g) General comments

The failure to deliver
basic medical services to Mr Ghomwari during his time in immigration detention
has highlighted some of the inadequacies of the system in the VIDC for
providing such services. These deficiencies existed during the period
of Mr Ghomwari's detention and, after hearing the evidence of Dr Amin
and Mr Mitchell, it would appear that these deficiencies continue to the
present day. In my view, there are two main inadequacies with this system.
First, it is unacceptable that doctors are not stationed permanently at
the VIDC and, at a minimum, available to attend to the health needs of
detainees within normal office hours on Monday to Friday of each week.
This failure on the part of the Commonwealth would appear to have the
effect that a "Band-Aid" approach to medical care is adopted
whereby the medical health professionals who attend at the IDC from time
to time, such as doctors and nurses, deal only with the medical problem
which immediately presents itself, and are unable to offer any ongoing
structured medical assistance or continuity of care. It would also appear
to have the effect that medical services become essentially "rationed",
with only those persons presenting with obvious and urgent symptoms receiving
those services in a timely fashion.

Second, in this case
at least, there was a failure by the Department to monitor the performance
of ACM under, and thereby ensure ACM's compliance with, the Detention
Services Contract. Under this contract, ACM has responsibility for the
"care, supervision, control and welfare of detainees" [48]
and for providing "health services"[49] .
In his evidence to this inquiry, Mr Mitchell advised that the Department
measures the performance of ACM under this contract against the Immigration
Detention Standards (IDS). The IDS are informed by "Australia's international
obligations" and include "Dignity criterion" [50].
However, one wonders how effectively the Department is able to monitor
and ensure that detainees in general receive the level of medical care
they are entitled to, when a detainee, such as Mr Ghomwari, with a serious
medical condition, fails to receive such care even after his medical condition
and the inadequacies of the medical care provided to him are specifically
brought to the attention of the Department. In my view, there is clearly
a need within the Department to develop and implement more effective monitoring
and accountability measures for any organisation or person contracted
to provide medical services to an IDC.

The comments of the
UNHRC in relation to the effect of the United Kingdom's policy of contracting
out the detention of persons to privately-run institutions are apposite:

The Committee is
concerned that the practice of the State party in contracting out to
the private commercial sector core State activities which involve the
use of force and the detention of persons weakens the protection of
rights under the Covenant [ICCPR]. The Committee stresses that the State
party remains responsible in all circumstances for adherence to all
articles of the Covenant [ICCPR]…

The State party
should ensure that all those who are involved in the detention of prisoners
be made fully aware of the international obligations on the State party
concerning the treatment of detainees, including the United Nations
Standard Minimum Rules for the Treatment of Prisoners. [51]

3.4.2 Article
10(2)(a) of the ICCPR

Article 10(2)(a)
of the ICCPR provides that:

Accused persons
shall, save in exceptional circumstances, be segregated from convicted
persons and shall be subject to separate treatment appropriate to their
status as unconvicted persons …

Article 10(2)(a)
imposes two requirements on a State Party. The first is that, save in
exceptional circumstances, an accused person shall be segregated from
convicted persons. The second is that the accused person shall be subject
to separate treatment appropriate to their status as unconvicted persons.

This article of the
ICCPR is relevant to Mrs Ghomwari's criticism of her husband's detention
in the MRRC, and, in particular, to her complaint that he received the
same treatment as convicted prisoners in that prison.

3.4.2.1 Application
of article 10(2)(a) to persons in administrative detention

In its written submissions
of 15 March 2002, the Department raised, as a preliminary point, the applicability
of article 10(2)(a) to administrative detainees. It submitted that:

there is no direct
authority on whether Article 10(2)(a) applies to administrative detainees
held in a state correctional facility. The distinction between convicted
and unconvicted persons in Article 10 arises from the right of such
persons to the enjoyment of the presumption of innocence in criminal
proceedings (Article 14(2)). Consequently, the language of Article 10(2)(a)
is directed to 'accused' persons.

Article 10(1) of
the ICCPR refers to "all persons deprived of their liberty"
and does not restrict the application of article 10 to people deprived
of their liberty as a result of criminal charges [52].
By comparison, article 10(2)(a) specifically refers to "accused persons".
As is correctly noted by the Department, there is no UNHRC jurisprudence
on the meaning of "accused persons" in this context. However,
in my view, it is plain that the intention of article 10(2)(a) was to
draw a distinction between those persons who have been found guilty and
convicted of a criminal offence and those who have not [53].
There is no reason why an administrative detainee should not be entitled
to all of the benefits that flow, by virtue of the presumption of innocence,
to persons in custody who have not been convicted of any criminal offence.
Interpreting article 10(2)(a) consistently with this intention, I therefore
find that administrative detainees are entitled, as persons who have not
been convicted of any crime, to the protection afforded by article 10(2)(a)
of the ICCPR.

I note that in its
second periodic report to the UN Human Rights Committee in February 1987
[54], within the discussion of article 10 and under
the heading "segregation", the Australian Government made submissions
concerning the detention of illegal immigrants in police lock-ups, remand
centres and prison facilities when immigration detention centres are not
available [55]. It therefore seems that even at this
early stage, the Australian government acknowledged that its obligations
under article 10(2)(a) relate not only to accused people within the criminal
justice system, but also to administrative detainees.

3.4.2.2 Separate
treatment

(a) The reservation
to article 10(2)(a) of the ICCPR

As set out above,
article 10(2)(a) of the ICCPR obliges Australia to provide a person in
detention with separate treatment appropriate to his or her status as
an unconvicted person. At the time of ratification of the ICCPR in 1980,
Australia entered a number of reservations and declarations. One such
reservation was made in relation to article 10(2)(a). That reservation
remains in force and states as follows: [56]

In relation to
paragraph 2(a) the principle of segregation is accepted as an objective
to be achieved progressively.

However, the right
to separate treatment guaranteed by article 10(2)(a) of the ICCPR is not
affected by this reservation as the reservation is limited in its terms
to the principle of segregation. The effect of the reservation to article
10(2)(a) is provided for in article 22 of the Vienna Convention, which
provides that a reservation:

…modifies
for the reserving State in its relations with that other party the provisions
of the treaty to which the reservation relates to the extent of the
reservation (emphasis added).

As is the case in
domestic law, reservations to the ICCPR (being derogations from fundamental
human rights) are construed narrowly. [57]

(b) Did Mr Ghomwari
receive separate treatment in the MRRC?

In her undated first
letter, Mrs Ghomwari complained about the treatment of her husband in
the MRRC. Her complaint centred around the fact that her husband had been
treated in exactly the same manner as convicted prisoners during his time
in this correctional facility. Mrs Ghomwari asserted that her husband
had been required to wear the same clothes as convicted prisoners, namely
white overalls. She also complained that her husband had had the same
restrictions placed on his contact with his family as convicted prisoners
and that, in particular, phone calls were limited to six minutes. In her
oral evidence at the hearing on 15 December 2001, Mrs Ghomwari advised
that her visits at the MRRC were limited to two hours.

In my Additional
Preliminary Report, I was of the preliminary view that article 10(2)(a)
had been breached on the basis that Mr Ghomwari did not receive any separate
treatment in the MRRC.

In its written submissions
of 15 March 2002 the Department disputed that there had been a breach
of this article. It stated that:

[The Additional
Preliminary Report] appear[s] to suggest that the Department is in breach
of Article 10(2)(a) on the basis that Mr Ghomrawi's treatment did not
comply with Part II Section C of the UN Standard Minimum Rules for the
Treatment of Prisoners (Standard Minimum Rules).

The Department
submits that although the Standard Minimum Rules may be taken into account
in determining the standards for humane conditions of detention, the
Standard Minimum Rules do not form a code, nor are States Parties required
to adhere to the Standard Minimum Rules in order to comply with the
ICCPR.

Australia is not
bound under international law to comply with the Standard Minimum Rules,
a fact that you acknowledge on page 2 of your additional preliminary
report. As such, the Department submits that it is not reasonable to
find a breach of Article 10(2)(a) on the basis of perceived non-compliance
with a non-binding instrument.

Findings

You suggest that
the Department appears to concede that Mr Ghomrawi was not subject to
separate treatment while held in the MRRC.

While the Department
concedes that Mr Ghomrawi was not always segregated from unconvicted
and convicted inmates, it does not accept that this necessarily leads
to a conclusion that Mr Ghomrawi was treated in exactly the same manner
as convicted prisoners.

Mr Ghomrawi was
detained as a "deportee" for the entire time he was detained
in NSW Correctional facilities as an immigration detainee. Immigration
detainees are held as "deportees" in NSW correctional facilities,
as a sub-group of civil inmates. A civil inmate is defined as "an
inmate who is being held in custody otherwise than because of a criminal
offence".

Civil inmates have
some additional privileges to those of a convicted inmate. Civil inmates
cannot be forced to work except to keep any area they inhabit clean
and tidy. Any work they perform is at their own request.

Civil inmates are
permitted to receive daily visits, as opposed to twice weekly visits
for unconvicted inmates and weekly visits for convicted inmates.

In relation to
clothing, the Regulations in place in relation to NSW correctional facilities
prior to September 2001 provided for unconvicted or civil inmates to
wear their own clothing if permitted by the Governor of the correctional
centre. However, Governors generally did not allow this to happen for
security reasons. This provision was removed on the commencement of
the Crimes (Administration of Sentences) Regulation 2001 on 1 September
2001. There is now no difference between the clothing issued to any
category of inmate.

The Department
submits that while Mr Ghomrawi was required to wear the same coloured
overalls as unconvicted and convicted inmates, this requirement applied
to all persons in the NSW correctional system. Further, while this did
not comply with Rule 88 of the Standard Minimum Rules, the Department
submits that this is hardly grounds for a finding that his detention
breached Article 10(2)(a) of the ICCPR. As has been stated, Australia
is not bound under international law to comply with the Standard Minimum
Rules.

In relation to
telephone calls, the Regulations provide for the Commissioner to determine
the number of telephone calls for a class of inmates. Unsentenced inmates
are permitted to make up to three local or fringe area telephone calls
per week at departmental expense. Their legal telephone calls are also
made at the expense of the NSW Department of Corrective Services. Sentenced
inmates are permitted to make one local or fringe area call per week
at departmental expense.

In general, telephone
calls for humanitarian purposes such as illness, death in the family
or birth of a child are provided without delay and in addition to the
inmate's normal entitlements.

As a "civil
inmate", Mr Ghomrawi clearly had access to more frequent visits
and telephone calls than that which applied to unconvicted or convicted
inmates. On this basis, the Department submits that Mr Ghomrawi was
subject to separate treatment while detained in NSW correctional facilities
and, as such, his detention was not in breach of Article 10(2)(a) of
the ICCPR.

The Standard Minimum
Rules are United Nations standards applicable to the treatment of all
persons (whether administrative detainees, accused persons or sentenced
prisoners) held in correctional facilities. The Standard Minimum Rules
provide for different treatment of convicted prisoners and those who have
not been convicted of any criminal offence. As set out in Part 3.4.2.3(f)
of this Report, although these Rules are not binding on Australia [58]
, they provide valuable guidance as to the nature of the separate treatment
Australia is obliged to accord unconvicted persons under article 10(2)(a).

Rule 95 of the Standard
Minimum Rules provides that persons arrested or imprisoned without charge
shall be given the same protection as that given to arrested or remanded
prisoners under Part II, section C. Part II, section C of the Standard
Minimum Rules provides:

C. Prisoners
under arrest or awaiting trial

84. (1) Persons
arrested or imprisoned by reason of a criminal charge against them,
who are detained either in police custody or in prison custody (jail)
but have not yet been tried and sentenced, will be referred to as "untried
prisoners,' hereinafter in these rules.

(2) Unconvicted
prisoners are presumed to be innocent and shall be treated as such.

(3) Without prejudice
to legal rules for the protection of individual liberty or prescribing
the procedure to be observed in respect of untried prisoners, these
prisoners shall benefit by a special regime which is described in the
following rules in its essential requirements only.

85. (1) Untried
prisoners shall be kept separate from convicted prisoners.

(2) Young untried
prisoners shall be kept separate from adults and shall in principle
be detained in separate institutions.

86. Untried prisoners
shall sleep singly in separate rooms, with the reservation of different
local custom in respect of the climate.

87. Within the
limits compatible with the good order of the institution, untried prisoners
may, if they so desire, have their food procured at their own expense
from the outside, either through the administration or through their
family or friends. Otherwise, the administration shall provide their
food.

88. (1) An untried
prisoner shall be allowed to wear his own clothing if it is clean and
suitable.

(2) If he wears
prison dress, it shall be different from that supplied to convicted
prisoners.

89. An untried
prisoner shall always be offered opportunity to work, but shall not
be required to work. If he chooses to work, he shall be paid for it.

90. An untried
prisoner shall be allowed to procure at his own expense or at the expense
of a third party such books, newspapers, writing materials and other
means of occupation as are compatible with the interests of the administration
of justice and the security and good order of the institution.

91. An untried
prisoner shall be allowed to be visited and treated by his own doctor
or dentist if there is reasonable ground for his application and he
is able to pay any expenses incurred.

92. An untried
prisoner shall be allowed to inform immediately his family of his detention
and shall be given all reasonable facilities for communicating with
his family and friends, and for receiving visits from them, subject
only to restrictions and supervision as are necessary in the interests
of the administration of justice and of the security and good order
of the institution.

93. For the purposes
of his defence, an untried prisoner shall be allowed to apply for free
legal aid where such aid is available, and to receive visits from his
legal adviser with a view to his defence and to prepare and hand to
him confidential instructions. For these purposes, he shall if he so
desires be supplied with writing material. Interviews between the prisoner
and his legal adviser may be within sight but not within the hearing
of a police or institution official.

The evidence of Mrs
Ghomwari does not contradict the Department's submission that, as a "deportee",
Mr Ghomwari received separate treatment in relation to telephone calls
and visiting rights. However, Mrs Ghomwari contradicted the Department's
assertion that daily visits were permitted in the MRRC.

Mrs Ghowmari gave
the following evidence before the President on 15 December 2001:

Q: In the SMRRC,
you were able to visit him [your husband], how often?

A: Three times
a week. Villawood, I could visit him every day, but Silverwater, just
three times a week.

I accept the Department's
evidence as to the nature of the separate treatment Mr Ghomwari received
in relation to telephone calls and visits, but prefer Mrs Ghomwari's evidence
on the number of visiting days permitted per week.

I am pleased that
"deportees" in the MRRC have more liberal contact with family
and friends, by way of visits and telephone calls, than convicted prisoners.
However, while liberal contact rights with family and friends are an important
part of the separate treatment which is appropriate to the status of unconvicted
persons like Mr Ghowmari, these rights alone do not equate with the regime
of separate treatment contemplated by article 10(2)(a). A good example
of the comprehensive regime of separate treatment envisaged by article
10(2)(a) is that detailed above in Part II, section C of the Standard
Minimum Rules.

"Deportees"
in the MRRC do not have many of the entitlements set out in Part II, section
C of the Standard Minimum Rules. Most notably, deportees are treated in
exactly the same manner as convicted prisoners in respect of their living
quarters and in their prison dress. While the Department cites "security
reasons" as providing a basis for denying deportees the right to
wear their own clothes, the exact nature of these "reasons"
is not detailed. Nor is an explanation provided as to why, in these circumstances,
different prison dress as suggested by rule 88(2) of the Standard Minimum
Rules is not permitted. In addition to the issues of living quarters and
dress, deportees do not have access to their own doctor or dentist and
are not permitted to have food procured at their own expense from the
outside, either through the administration or through their family or
friends.

As the treatment
accorded to Mr Ghomwari in the MRRC was substantially the same as that
received by convicted prisoners, I have formed the view that article 10(2)(a)
of the ICCPR has been breached. I confirm that it is the failure of the
Commonwealth to provide Mr Ghomwari with separate treatment appropriate
to his status as an unconvicted person that has lead to this breach and
not its failure to comply with many aspects of the Standard Minimum Rules.

4. Summary
of findings

For the reasons set
out above, I find that:

(a) the level and
quality of the medical services provided by the Commonwealth to Mr Ghomwari
after his return to the VIDC on 8 May 2000 did not meet minimum international
standards and was inconsistent and contrary to his human rights recognised
in article 10(1) of the ICCPR; and

(b) the failure
by the Commonwealth to provide Mr Ghomwari with a regime of separate
treatment while he was held in immigration detention in the MRRC was
inconsistent with and contrary to his human rights recognised in article
10(2)(a) of the ICCPR.

5. Recommendations

5.1 Introduction

Section 29(2)(d)
of the HREOC Act provides that I must include in any Report relating to
the results of an inquiry particulars of any recommendations that I have
made pursuant to s 29(2)(b) or (c) of the HREOC Act. Section 29(2)(b)
of the HREOC Act provides that, where I conclude that an act or practice
is inconsistent with or contrary to any human right, I may make recommendations
for preventing a repetition of the act or a continuation of the practice.
Section 29(2)(c) of the HREOC Act provides that those recommendations
may be for either or both of the following:

(a) the payment of
compensation to, or in respect of, a person who has suffered loss or damage
as a result of the act or practice; and

(b) the taking of
other action to remedy or reduce loss or damage suffered by a person as
a result of the act or practice.

In the process of
finalising this inquiry, it came to my attention that the parties had
not made submissions concerning the recommendations I should make in the
event that I found, as I have done, that the acts of the Commonwealth
in question were contrary to or inconsistent with human rights and, to
the extent that any such recommendations included a recommendation for
the payment of compensation, how such compensation should be quantified.

On 4 June 2002, the
Commission wrote to the parties seeking submissions on this issue, and
enclosed a copy of the findings of human rights violations and my reasons
for those findings. On 11 July 2002, written submissions were provided
on behalf of Mrs Ghomwari.

The Department's
submissions were originally due on 24 July 2002. On 30 July 2002, the
Department asked for and was granted an extension until 9 August 2002.
On 13 August 2002, the Department asked for and was granted a further
extension until 30 August 2002. The submissions were not received on or
by 30 August 2002. On 10 September 2002, the Department was advised by
letter that the Commission intended to finalise this inquiry, regardless
of whether those submissions were provided. On 18 September 2002, the
Commission received some written submissions from the Department.

In my Notice provided
to the parties on 23 September 2002 in accordance with s 29(2) of the
HREOC Act, I made a number of recommendations. Those recommendations appear
below.

5.2 Recommendations
for the payment of compensation

5.2.1 Submissions
concerning the payment of compensation

In the written submissions
provided on behalf of Mrs Ghomwari, compensation was sought in the sum
of $450,000 for the loss and damage suffered by her husband as follows:

(a) $150,000 in
respect of the acts of the Commonwealth which were inconsistent with
and contrary to article 10(1) of the ICCPR. It was asserted that Mr
Ghomrawi suffered injury as a result of:

i. the contraction
by Mr Ghomrawi of Hepatitis B, for which there is no known cure and
which is a lifelong disabling disease characterized by frequent bouts
of abdominal pain, fever and extreme lethargy;

ii. the failure
to provide symptomatic relief for Mr Ghomrawi's Hepatitis B;

iii. the failure
to provide counselling and/or further blood test opportunities which
could have resulted in more pro-active treatment of Hepatitis B; and

iv. the effect
of Hepatitis B on the employment prospects and the future earning capacity
of Mr Ghomrawi.

This injury was
particularised as an "untreated Major Depressive Episode"
and "diminished life expectancy". A medical report by Dr Julian
Parmegiani dated 18 August 1999 was provided to support these assertions.

(b) $300,000 in
respect of the acts of the Commonwealth which were inconsistent with
and contrary to article 10(2)(a) of the ICCPR. $150,000 for the denial
of visiting rights on four days every week for the period that Mr Ghomwari
was detained in the MRRC, and $150,000 for the breach of the requirement
to provide a regime of separate treatment from convicted prisoners which
resulted in the requirement to wear prison dress, the inability to have
his own food brought in from the outside and the refusal to allow Mr
Ghomrawi to access his own medical treatment providers.

In addition, Mrs
Ghomwari sought compensation for herself and her son, Noah, in such amount
as the "Commission or Minister deems just and equitable".

In the only part
of the Department's written submissions relevant to the issue of the recommendations
for the payment of compensation I should make (in light of my findings
that acts of the Commonwealth were contrary to and inconsistent with human
rights), the Department asserted that:

… [it] has
taken into account the submission [on behalf of Mrs Ghomwari], dated
11 July 2002. I note that [this submission] calls for compensation on
matters where the Commission has not found the Department to be in breach
of relevant international obligations. The Department cannot be liable
for matters where it has been accepted that no breach has occurred.

5.2.2 Relevant
legal principles

So far as it is possible,
the object of recommendations for the payment of compensation under the
HREOC Act should be to place the injured party in the same position as
if the wrong had not occurred . Compensation for human rights violations
will usually be assessed in the same way as damages for torts, although
this approach may not be appropriate in all cases [60].
A torts based approach involves comparing the position in which the complainant
might have been expected to be if the human rights violation had not occurred
with the situation in which he or she was placed by reason of the conduct
of the respondent. [61]

5.2.3 Quantum

5.2.3.1 Breach
of article 10(1) of the ICCPR

The submissions made
on behalf of Mrs Ghomwari assert that her husband suffered an untreated
major depressive illness as a result of the Commonwealth's breach of this
article and also a diminished life expectancy. The only evidence provided
to support this submission was the medical report of Dr Parmegiani dated
18 August 1999. I note that Dr Parmegiani assessed Mr Ghomwari on 16 August
1999 for the purpose of preparing a report concerning his psychological
state in the MRRC, and not for the purpose of this inquiry. As such, the
report does not assist me in assessing the loss or damage suffered by
Mr Ghomwari as a result of the breach by the Commonwealth of article 10(1)
of the ICCPR after his return to the VIDC. Dr Parmegiani does not make
any assessment of Mr Ghomwari's life expectancy.

However, some evidence
was provided to this inquiry concerning the past loss and damage suffered
by Mr Ghomwari as a result of the Commonwealth's breach of article 10(1).
I am satisfied that the oral evidence given at the hearing on 15 December
2001, as set out in Part 3.4.1.2(d) of this Report, established that Mr
Ghomwari experienced symptoms associated with his Hepatitis B, from the
time of his return to the VIDC until the time of his departure from Australia,
and that treatment was available for those symptoms. In her evidence at
this hearing, Mrs Ghomwari asserted, and I have accepted, that, after
his return to the VIDC, her husband suffered from blood in his urine,
vomiting, lethargy and a general feeling of being unwell. These symptoms
were present over the entire time he was in the VIDC and did not change
over time. As Mrs Ghomwari stated in her evidence, her husband's symptoms
would go away for a couple of days but then they "would come back
furious". Although not a medical expert, the evidence given by Mrs
Ghomwari on this issue was consistent with that given by Dr Amin. In his
oral evidence at the hearing, Dr Amin affirmed that the symptoms described
by Mrs Ghomwari were indeed consistent with those experienced by Hepatitis
B carriers, and that those symptoms may fluctuate over time. He stated
that a chronic Hepatitis B carrier will experience all of the normal symptoms
of Hepatitis B but that those symptoms can have "more intensity"
about them. Dr Amin asserted that while there was no antidote yet available
for Hepatitis B, treatment was available for all of the symptoms.

In her initial letter
of complaint, Mrs Ghomwari set out some of the effects on her family of
the situation Mr Ghomwari found himself in. She stated that "we all
suffered emotional stress" [62] and that "we
have all gone through a lot of heartache and pain" and "suffering"
[63]. In her second letter of complaint, Mrs Ghomwari
articulated her husband's feelings about this lack of medical treatment:
"All he wanted was to feel like a human being, just to be seen and
looked after as he was sick" .

Mr Ghomwari's past
pain and suffering and attendant loss of enjoyment (or amenities) of life
would, in tort law, be characterised as heads of "non-economic loss".
Although, of their nature, such heads have no obvious monetary equivalent
and courts therefore strive to achieve fair rather than full or perfect
compensation in respect of such losses [65]. Courts
also tend to assess such damages as a global sum, rather than separately
.[66]

On the material before
me, I find that the acts or practices of the Commonwealth that were contrary
to or inconsistent with Mr Ghomwari's human rights under article 10(1)
of the ICCPR did cause past loss in the nature of non-economic loss to
Mr Ghomwari. I accept that, from the time of his return to the VIDC on
8 May 2000 to the time of his voluntary departure on 21 October 2000,
Mr Ghomwari experienced pain and suffering and a loss of enjoyment of
life as a result of not receiving treatment, which was available, for
his Hepatitis B symptoms. I also accept that Mr Ghomwari experienced distress
and anxiety at the failure of the VIDC to properly assess and monitor
his condition and, in these circumstances, its refusal to permit him to
access his own doctor. I assess that loss in the amount of $15,000.

In the written submissions
provided on behalf of Mrs Ghomwari, it was also suggested that I make
a recommendation for compensation for:

  • the contraction
    by Mr Ghomwari of Hepatitis B while in the MRRC; and
  • the effect of
    the contraction of this illness on his employment prospects and future
    earning capacity.

However, I accept
the submission of the Department that, as this Report does not make any
findings in relation to responsibility for the contraction of Hepatitis
B by Mr Ghomwari, I am unable to make any recommendations for compensation
on that basis.

5.2.3.2 Breach
of article 10(2)(a) of the ICCPR

In the submissions
provided on behalf of Mrs Ghomwari, compensation was sought for her husband's
pain and suffering and for his loss of enjoyment of life during the period
of his detention in the MRRC as a result of the Commonwealth's failure
to provide a regime of separate treatment for him in that prison. In particular,
compensation was sought for:

  • the denial of
    visiting rights on four days every week. At Part 3.4.2.2(b) of this
    Report, I found that although the Department advised that civil inmates
    were permitted to have daily visits, Mr Ghomwari was in fact only permitted
    visitors on three days per week. I accept that Mrs Ghomwari visited
    her husband her husband every day at the VIDC and would have visited
    her husband on each day of the week at the MRRC, had she been permitted
    to do so;
  • the requirement
    that he wear prison dress;
  • the inability
    to have his own food brought from the outside; and
  • the denial of
    access to his own medical treatment providers.

A range of material
has been provided to this inquiry concerning the impact on Mr Ghomwari's
mental state of this failure by the Commonwealth to provide a regime of
separate treatment for him in the MRRC. In her initial letters of complaint,
Mrs Ghomwari made numerous references to the affect on her husband of
being "treated like a criminal" .[67] In the
submissions on compensation, I was referred to the "continuing indignity
and humiliation" caused to Mr Ghomwari by this breach of article
10(2)(a). I was also referred to Dr Parmegiani's report concerning Mr
Ghomwari's mental state after fourteen months of incarceration in the
MRRC. In that report, Dr Parmegiani described Mr Ghomwari's mental state
after three months in the MRRC:

Began to feel hopeless,
depressed and pessimistic. His appetite deteriorated and he lost a significant
amount of weight. He slept poorly, between 5 am and 12 midday. He had
frequent nightmares… Mr Ghomwari lacked energy, motivation and
concentration. He was tearful, crying everyday. He avoided social contact
and did not play sport. He frequently lost his temper, with minimal
provocation. … Mr Ghomwari longed to be with his wife and son ...

Dr Parmegiani' summary
and conclusion was that:

Mr Hassan Ghomwari
is a 26 year old man who has become severely depressed over the past
14 months. His symptoms fulfill criteria for the diagnosis of Major
Depressive Illness.

I note that Dr Parmegiani's
report was tendered in evidence in Ghomwari v Minister for Immigration
and Multicultural Affairs
[68]. After hearing cross-examination
of Dr Parmegiani on this report and expert testimony from a Dr Gordon
Davies in that case, Emmett J was not satisfied that Mr Ghomwari was suffering,
at that time, from a Major Depressive Illness [69].
He did, however, acknowledge that Mr Ghomwari was "severely depressed
by his circumstances". [70]

On the material before
me, I find that the acts or practices of the Commonwealth that were contrary
to or inconsistent with Mr Ghomwari's human rights under article 10(2)(a)
of the ICCPR did cause past loss in the nature of non-economic loss. I
accept that after a few months in the MRRC, Mr Ghomwari did become "severely
depressed by his circumstances" as found by Emmett J. This depression
was caused, in part, by the Department's failure to provide him with a
separate regime of treatment appropriate to his status as an unconvicted
person. This was acknowledged by Dr Parmegiani who stated in his report
that:

[Mr Ghomwari] resented
being treated like a criminal, and being detained with inmates whose
moral values he did not share. He feared mixing with drug addicts, and
contracting diseases. He missed his wife and son, longing to be reunited
with them.

On this basis, I
assess that loss in the amount of $7,500. In arriving at that figure,
I have had regard to the fact that Mr Ghomwari's depression was also caused,
in a large part, by his detention as an unlawful non-citizen and his detention
in a prison and not an IDC. These factors have not been found to constitute
a breach of his human rights and my recommendation for compensation has
therefore been reduced by 80% to take account of the contribution made
by these factors to Mr Ghomwari's mental state.

5.2.4 Recommendations
concerning compensation for Mrs Ghomwari and Noah Ghomwari

In the written submissions
provided on behalf of Mrs Ghomwari, compensation was sought for herself
and her son, Noah, who was between a few months and two years old during
the period of his father's detention in the MRRC. Section 29(2)(c) of
the HREOC Act provides that I may make a recommendation for the payment
of compensation "to, or in respect of, a person who has suffered
loss or damage as a result of the act or practice". Therefore, if
I find that Mrs Ghomwari and/or Noah suffered loss or damage as a result
of the acts of the Commonwealth which breached of articles 10(1) or 10(2a)
of the ICCPR, I may make a recommendation for the payment of compensation
to her and/or her child.

In all of her letters
of complaint, Mrs Ghomwari detailed the pain and suffering and loss of
enjoyment of life experienced by her and her son as a result of her husband's
detention in the MRRC. For example, in her initial letter of complaint,
she explained that:

I don't know how
many sleepless nights I have had crying myself to sleep but I have lost
count. During the two years in maximum security it was very hard not
knowing wether one morning someone is going to ring me and tell me something
had happened to him. Not knowing whether his cell mate would be accused
of murder, break and enter or what knowing the only reason for being
there is that he does not have a visa. This disgusts me. Hassan had
to wear white overalls. Noah it was like he knew because he was distint
(sic). … I have gone through a lot of heartache and pain and crying
and feeling like life is not worth it not worth living … [71]

In her second letter
of complaint, Mrs Ghomwari noted:

Our son has suffered
tremendesly (sic) as he is growing up and is learning new things everyday.
He knows that his father is not with us because he always says, "Go
to see Daddy". [72]

I accept that Mrs
Ghomwari experienced pain and suffering and a loss of enjoyment of life
as a result of the failure by the Commonwealth to provide her husband
with a separate regime of treatment appropriate to his status as an unconvicted
person. Mrs Ghomwari witnessed her husband being treated in the same manner,
particularly in relation to prison dress, as convicted prisoners in the
MRRC, including those convicted of serious offences. She was also denied
visits to her husband on four days of each week during the 20 month period
of his detention.

I also accept that
Mrs Ghomwari experienced pain and suffering and a loss of enjoyment of
life on account of the Commonwealth's failure to provide her husband with
medical treatment for his Hepatitis B after his return to the VIDC. That
was evident during Mrs Ghomwari's oral evidence to this inquiry and was,
after all, her reason for bringing her complaint to the Commission. Mrs
Ghomwari visited her husband each day in the VIDC and witnessed this pain
and suffering. She was also told about his suffering from Detention Officers.
In addition, I accept that Mrs Ghomwari experienced distress and anxiety
at being unable to obtain medical treatment for her husband both within
and outside of the IDC.

On this basis, I
assess Mrs Ghomwari's loss in the amount of $4,000. In arriving at this
figure, I have had regard to the fact that the pain and suffering and
loss of enjoyment of life which Mrs Ghomwari experienced was also in large
part due to her husband's detention as an unlawful non-citizen and his
detention in a prison and not an IDC. These factors have not been found
to constitute a breach of his human rights and my recommendation for compensation
has therefore been reduced by 80% to take account of the contribution
these factors made to Mrs Ghomwari's loss and damage.

I do not propose
make any recommendations for compensation in respect of Noah. In my view,
he was too young to have suffered any but nominal loss and damage as a
result of the breach by the Commonwealth of his father's human rights.

5.3 Recommendations

I recommend that:

(a) The Commonwealth
pay compensation in the amount of $22,500 for the loss and damage Mr Ghomwari
suffered as a result of the human rights violations to which he was subjected.
This compensation is to be paid to Mrs Ghomwari on her husband's behalf.

(b) The Commonwealth
pay compensation in the amount of $4,000 for the loss and damage Mrs Ghomwari
suffered as a result of the violations of her husband's human rights.

(c) The Commonwealth
take immediate steps to comply with its obligations under article 10(1)
of the ICCPR in respect of the medical services provided to persons in
immigration detention in all IDCs in Australia. In particular, the Commonwealth:

(i) to the extent
that this is not already the position, ensure that there are medical
practitioners available on-site at each IDC in Australia to provide
medical assistance to all persons detained in those IDCs who complain
of illness between office hours on Monday to Friday of each week (the
number of hours those practitioners need be present at an IDC on those
days will be governed by the population of the particular IDC and the
medical health needs of that population);

(ii) ensure that
there are medical practitioners at each IDC in Australia available to
attend at an IDC in a timely fashion to provide medical assistance to
persons who complain of illness at any other time;

(iii) ensure that
a thorough medical examination of all persons commencing a period of
detention in an IDC is undertaken by a medical practitioner upon the
arrival of those persons at the IDC;

(iv) ensure that
there is one medical health professional within each IDC with responsibility
for overseeing and co-ordinating the medical care received by persons
who complain of illness in the IDC. It is the role of this person to
ensure that each person who complains of illness has a structured medical
treatment plan and is able to receive continuity of care;

(v) if a person
is transferred from a prison to an IDC, or from one IDC to another,
ensure that that person's medical file is obtained from the prison or
other IDC in a timely fashion, or within 14 days, whichever is the latest;
and

(vi) in training
of Departmental and ACM officers, ensure that all officers are aware
of the existence and operation of ACM Policy 3.3 "Obtaining Health
Services Outside of the Centre".

(d) the Commonwealth
take immediate steps to comply with its obligations under article 10(2)(a)
of the ICCPR in respect of immigration detainees in correctional facilities
in New South Wales. The Department should ensure that immigration detainees
held in State prisons are subject to separate treatment appropriate to
their status as unconvicted persons. At a minimum the detainee should
be entitled, in accordance with Part II, Section C of the UN Standard
Minimum Rules, to:

(i) sleep singly
in separate sleeping quarters;

(ii) within the
limits compatible with the good order of the State prison and if the
detainee wishes, have his/her food procured at his/her own expense from
the outside, either through the administration or through their family
or friends;

(iii) wear his/her
own clothing if it is clean and suitable;

(iv) if the detainee
wears prison dress, it shall be different from that supplied to convicted
prisoners;

(v) work, but shall
not be required to work. If the detainee chooses to work, s/he shall
be paid for it;

(vi) procure at
his/her own expense or at the expense of a third party such books, newspapers,
writing materials and other means of occupation as are compatible with
the interests of the administration of justice and the security and
good order of the institution;

(vii) be visited
and treated by his/her own doctor or dentist if there is reasonable
ground for his application and s/he is able to pay any expenses incurred;

(viii) all reasonable
facilities for communicating with his/her family and friends, and for
receiving visits from them, subject only to restrictions and supervision
as are necessary in the interests of the administration of justice and
of the security and good order of the institution; and

(ix) receive visits
from his/her legal adviser with a view to his/her defence and to prepare
and hand to him/her confidential instructions. For these purposes, s/he
shall if s/he so desires be supplied with writing material. Interviews
between the prisoner and his/her legal adviser may be within sight but
not within the hearing of a police or institution official.

Mrs Ghomwari also
sought a recommendation to the effect that the Commonwealth waive or extinguish
any debts or charges owed by Mr Ghomwari for the costs of his detention.
While such recommendations may fall within the category of "other
action to remedy or reduce loss or damage suffered by a person as a result
of the act or practice", I do not consider that it is appropriate
to make recommendations of that nature in this case.

6. Actions
taken by the Commonwealth as a result of the findings and recommendations

Under section 29(2)(e)
of the HREOC Act the Commission is required to state in its report to
the Attorney-General whether, to the knowledge of the Commission, the
Commonwealth has taken or is taking any action as a result of its findings
and recommendations.

On 23 September 2002,
the Commission wrote to the Commonwealth to seek its advice as to what
action it had taken or proposed to take as a result of the findings and
recommendations. In a letter to the Commission dated 8 October 2002, Mr
E V Killesteyn, on behalf of the Commonwealth, provided the Commonwealth's
comments in relation to those findings and recommendations. I have extracted
those parts of Mr Killesteyn's letter that state what action the Commonwealth
has taken, or proposes to take:

Recommendation
C - The Commonwealth take immediate steps to comply with its obligations
under article 10(1) of the ICCPR in respect of the medical services
provided to persons in immigration detention in all lDCs in Australia
.

Article 10(1) of
the ICCPR provides that 'All persons deprived of their liberty shall
be treated with humanity and with respect for the inherent dignity of
the human person'.

The Department
submits that it already complies with its obligations under Article
10(1) of the ICCPR in respect of the medical services provided to persons
in detention. All immigration detention facilities have a medical centre,
providing 24 hours access, seven days a week, to triage, nursing and
first aid. Detainees who cannot be treated within the detention facility
are referred off-site to specialists, hospitals or other institutions
for ongoing care. There are doctors at each facility. The numbers of
doctor and their hours of attendance fluctuate depending on detainees
numbers at each centre. Currently at Villawood IDC there are 3 general
practitioners attending the centre for 76 hours per week in total. Outside
these times a general practitioner is on call. There are also 2 nurses
in attendance, 7 days a week for 8 hours per day.

The level of primary
health care provided to immigration detainees is broadly equivalent
to the standard available to the Australian community, while also taking
into account the special needs of the detainee population. The delivery
of health services by the Detention Services Provider is guided by its
operational guidelines, consistent with Immigration Detention Standards.

Each detainee who
enters a detention facility undergoes an initial health assessment,
including triage as necessary. Interpreters are used as required. The
health assessment consists of a full set of observations: pulse, blood
pressure, height and weight and an interview with a doctor or nurse
to obtain a full medical history. The history includes any past health
problems, treatment, surgery, hospitalisation, and mental health issues
as well as any current problems. This early assessment and detection
of medical conditions enable health services staff to ensure conditions
are treated before they develop further.

For unauthorised
arrivals, additional care is taken in the health screening process.
On arrival at a facility, the Detention Services Provider medical centre
staff undertake an initial health assessment of all unauthorised arrivals.
Requirements for health assessments are set out in an interim protocol
for public health management in immigration detention. The interim protocol
was developed in close consultation between the Department, the Commonwealth
Department of Health and Aged Care, and relevant State health representatives
and peak bodies. The interim protocol is endorsed by the Chief Commonwealth
Medical Officer. Within the first two weeks of unauthorised arrivals
entering detention, a further medical assessment for visa assessment
processes is conducted by Health Services Australia (HSA) which comprises
a physical examination and a questionnaire. This assessment also takes
into consideration any relevant tests already undertaken by the Detention
Services Provider.

In relation to
the transfer of detainees medical files from a correctional to a detention
facility, the privacy requirement in some States mean that the full
medical file may only be transferred if the detainee provides informed
consent. In the absence of such consent however recent practice for
example in New South Wales has been for a medical summary or alert to
be provided to the detention facility usually at the time of transfer.
The timely transfer of medical files or summaries is being addressed
in the negotiations on Memoranda of Understanding with state correctional
facilities and in the review of Migration Series Instruction 244 Immigration
Detainees transferred to and held in Correctional Facilities.

In relation to
the transfer of medical files with detainees between detention centres
the Immigration Detention Standards (IDS) have been revised and enhanced
in the context of the tender for the new contract for the provision
of detention services. Under the revised IDS there is a more detailed
requirement on the Service Provider to ensure that when a detainee is
transferred between centres the detainees medical records are transferred
with the detainee.

A comprehensive
training program for Departmental and Detention Services Provider ensures
that officers are made aware that detainees can access health services
outside the detention facility as detailed in the Detention Services
Provider Health Policy & Procedures Manual.

As the Commonwealth
does not accept the findings made in my Notice provided to the parties
on 23 September 2002, Mr Killesteyn did not state what action the Commonwealth
has taken, or proposes to take, in relation to any of the other recommendations.

APPENDIX
A

Functions of the Human Rights
and Equal Opportunity Commission in relation to human rights

The Commission has
specific legislative functions and responsibilities for the protection
and promotion of human rights under the HREOC Act. Part II Divisions 2
and 3 of the HREOC Act confer functions on the Commission in relation
to human rights. In particular, s.11(1)(f) of the HREOC 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 HREOC Act.

Section 11(1)(f)
of the HREOC 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
HREOC 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 s.11(1)(f) of the HREOC Act upon the Attorney-General's
request, when a complaint is made in writing or when the Commission regards
it desirable to do so (s.20(1) of the HREOC Act).

In addition, the
Commission is obliged to perform all of its functions in accordance with
the principles set out in s.l0A of the HREOC 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 HREOC 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 must give the respondent to the
complaint an opportunity to make written and/or oral submissions in relation
to the complaint (s.27 of the HREOC 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 (s.29(2)(a) of the HREOC Act). The Commission may make
recommendations for preventing a repetition of the act or a continuation
of the practice, the payment of compensation or any other action to remedy
or reduce the loss or damage suffered as a result of the breach of a person's
human rights (s. 29(2)(b) and (c) of the HREOC Act).

If the Commission
finds a breach of human rights and it furnishes a report on the matter
to the Attorney-General, the Commission is to include in the report particulars
of any recommendations made in the notice (s.29(2)(d) of the HREOC Act)
and details of whether, to the knowledge of the Commission, that person
has or is taking any actions as a result of the findings and recommendations
of the Commission (s.29(2)(d) and (e) of the HREOC Act). The Attorney-General
must table the report in both Houses of Federal Parliament within 15 sitting
days in accordance with s.46 of the HREOC Act.

It should be noted
that the Commission has a discretion to cease inquiry into an act or practice
in certain circumstances (s.20(2) of the HREOC Act), including where the
subject matter of the complaint has already been adequately dealt with
by the Commission (s.20(2)(c)(v) of the HREOC Act).


1.
The Commission's functions in relation to the investigation and conciliation
of complaints of human rights breaches against the Commonwealth of Australia
and its functions in relation to reporting on complaints with substance
that have not been resolved through the process of conciliation are outlined
in Appendix A.

2.
After an assessment by the classification committee determined that Mr
Ghomwari was suitable to be housed at a lower classified security facility,
Mr Ghomwari was transferred on 14 September 1999 to the Parramatta Correctional
Centre (PCC). Mr Ghomwari remained at the PCC until 17 September 1999
when he was returned to the MRRC following his involvement in the assault
of an inmate at the PCC. He was again transferred to the PCC on 21 October
1999 and remained there until 12 November 1999, when he was returned to
the MRRC following the lighting of a fire in his cell.

3.
Secretary, Department of Defence v HREOC, Burgess & Ors (1997) 78
FCR 208.

4.
Ibid

5.
Section 14 of the Migration Act defines an "unlawful non-citizen"
as "a non-citizen in the migration zone who is not a lawful non-citizen."
A "lawful non-citizen" is a non-citizen who is in the migration
zone and holds a valid visa: section 13 of the Migration Act.

6.
"Immigration detention" is defined in section 5 of the Migration
Act.

7.
Sections 189 and 196 of the Migration Act.

8.
Human Rights and Equal Opportunity Commission, Those who've come across
the seas: Detention of unauthorised arrivals, JS McMillan Pty Ltd, Sydney,
1998.

9.
Ibid, at Part 2.

10. Ibid, at pages
56 - 57.

11.
See http://www.immi.gov.au/illegals/acs.htm.

12.
Sections 5 and 189 of the Migration Act.

13.
Article 2(1) of the ICCPR.

14.
United Nations Human Rights Committee, General Comment No. 8, (1982),
UN/HRI/GEN/Rev.4, at paragraph 2.

15.
HRC Report No 10, Report of an Inquiry into a Complaint of Acts or Practices
Inconsistent With or Contrary to Human Rights in an Immigration Detention
Centre (available at www.humanrights.gov.au/human_rights/index.html)

16.
Nowak M, UN Covenant on Civil and Political Rights CCPR Commentary, MP
Engel, Germany, 1993, at page 186.

17.
Ibid, at page 188.

18.
This review was sought under section 39B of the Judiciary Act 1903 (Cth).

19.
Ghomwari v Minister for Immigration and Multicultural Affairs [1999] FCA
1454 (22 October 1999).

20.
Ghomwari v Minister for Immigration and Multicultural Affairs [2000] FCA
724.

21.
Transcript of hearing before President Tay on 15 December 2001, at pages
7.46 - 8.7.

22.
Ibid, at page 11.15.

23.
Ibid, at page 2.35.

24.
Ibid, at page 9.20.

25.
Ibid, at page 20.9.

26.
Ibid, at page 22.2.

27.
Ibid, at pages 15.48 - 16.7.

28.
Ibid, at page 22.29.

29.
Ibid, at pages 17.33 - 19.11.

30.
Ibid, at pages 28.33 - 29.5.

31.
Ibid, at page 34.6.

32.
Ibid, at page 32.32.

33.
Ibid, at page 34.27.

34.
Ibid, at page 43.19.

35.
Ibid, at page 41.24.

36.
Letter to the Commission from Christine Sykes, Acting First Assistant
Secretary of the Unauthorised Arrivals and Detention Division of the Department,
dated 11 January 2002, at page 2.

37.
Villawood Immigration Detention Centre, Reception Medical Screen, 8 May
2000.

38.
The Standard Minimum Rules were approved by the UN Economic and Social
Council in 1957. They were subsequently adopted by the UN General Assembly
in resolutions 2858 of 1971 and 3144 of 1983: UN Doc.A/COMF/611, Annex
1.

39.
The Body of Principles were adopted by the UN General Assembly in 1988:
GA Res 43/173. Annex: UN Doc/A/43/49 (1988).

40.
Collins v State of South Australia [1999] SASC 257 (25 June 1999).

41.
United Nations Human Rights Committee, General Comment 21 (1992), UN/HRI/GEN/Rev.4,
paragraph 5; Report of the 3rd Committee of the General Assembly (1958),
A/4045; Potter v New Zealand, Communication No. 632/1995, CCPR/C/60/D/632/1995;
Mukong v Cameroon, Communication No. 458/1991, CCPR/C/51/D/458/91. See
also, for example, the Concluding Comments on the United States of America
(1995) UN Doc. CCPR/C/79/Add. 50, at paragraph 34.

42.
Mukong v Cameroon, above n 41, at paragraph 9.3.

43.
Luyeye Magana ex-Philibert, Communication No. 90/1981, CCPR/C/19/D/90/1981;
Kelly v Jamaica, Communication No. 253/1987, CCPR/C/41/D/253/1987; Leehong
v Jamaica, Communication No. 613/1995, CCPR/C/66/D/613/1995; Smith and
Stewart v Jamaica, Communication No. 688/1995, CCPR/C/65/D/668/1995; Brown
v Jamaica, Communication No. 775/1997, CCPR/C/65/D/775/1997; Simpson v
Jamaica, Communication No. 695/1996, CCPR/C/73/D/695/1996.

44.
Part 1 covers the general management of institutions, and is applicable
to all categories of prisoner, criminal or civil, untried or convicted:
Rule 4 of the Standard Minimum Rules.

45.
Simpson, above n 43.

46.
Leehong, above n 43.

47.
Brown, above n 43.

48.
Paragraph 3.2.1 of the Detention Services Contract dated 27 February 1998.

49.
Paragraph 3.1.1 of the Detention Services Contract dated 27 February 1998.

50.
Immigration Detention Standards, Principles Underlying Care and Security,
at http://www.immi.gov.au/illegals/det_standards.htm.

51.
Quoted in Joseph, S and Others, The International Covenant on Civil and
Political Rights: Cases, Materials and Commentary, Oxford University Press,
London, 2000 at page 185.

52.
Nowak above n 16, at page 190.

53.
See also the comment by Nowak (above n 16, at page 190) that, in his view,
it is possible to apply the protective provision of article 10(2) to persons
in custody, not just to accused persons in pre-trial detention.

54.
For the second periodic report submitted by the Government of Australia
see UN document CCPR/C/42/Add.2. For its consideration by the Committee
see CCPR/C/SR.806-809 and Official Records of the General Assembly, Forty-third
Session, Supplement No.40 (A/43/40), paragraphs 413-460.

55.
Ibid, at para 297.

56.
Nowak, above n 16, at pages 748 and 749.

57.
Maleki v Italy, Communication No. 699/1996, CCPR/C/66/D/699/1996.

58.
See above n 41.

59.
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217, per Lockhart J at
239; Commonwealth of Australia v Human Rights and Equal Opportunity Commission
[2000] FCA 1150 (17 August 2000), per Wilcox J at [55].

60.
Sheiban, above n 59, per Lockhart J at 239.

61.
Ibid.

62.
Undated initial letter of complaint, received by the Commission on 24
July 2000.

63.
Ibid.

64.
Undated letter of complaint, received by the Commission on 24 April 2001.

65.
Sharman v Evans (1977) 138 CLR 563 at 589.

66.
Ibid, at 584-5.

67.
Undated initial letter of complaint, received by the Commission on 24
July 2000.

68.
Ghomwari, above n 19.

69.
Ibid, at [88].

70.
Ibid, at [89].

71.
Undated initial letter of complaint, received by the Commission on 24
July 2000.

72.
Ibid.

73.
Louis and Ors v The Commonwealth and Qantas Airways [1987]

 

Last
updated 12 December 2002.