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HREOC Report No. 25

Report of an inquiry into
a complaint by Mr Mohammed Badraie on behalf of his son Shayan regarding
acts or practices of the Commonwealth of Australia (the Department of
Immigration, Multicultural and Indigenous Affairs)

HREOC Report No. 25


1.
Introduction

2.
Jurisidiction

3.
Relevant legislation and guidelines

4.
The complaint and the complainant's evidence

5.
Respondent's response

6.
Documentary material provided by to the Commission

7.
My preliminary findings and DIMIA's response to my preliminary findings

8.
Section 29 notice

9.
Findings of fact

10.
Elements of the inquiry

11.
Whether there is an act or practice

12.
Human rights under the HREOC Act

13.
Shayan's experiences in Woomera

14.
Shayan's detention at Villawood

15.
Shayan's placement in foster care

16.
Recomendations

17.
Action taken by the respondent

APPENDIX
A
Functions of the Human Rights And Equal Opportunity Commission in relation
to human rights

APPENDIX
B
Documentary Material Before the Commission


1. Introduction

This report concerns
a complaint under the Human Rights and Equal Opportunity Commission
Act 1986
(Cth) (the "HREOC Act") to the Human Rights and
Equal Opportunity Commission (the "Commission") alleging acts
or practices inconsistent with or contrary to human rights. Those acts
or practices allegedly occurred in connection with the detention of the
complainant's son at Woomera Immigration Reception and Processing Centre
("Woomera") and the Villawood Immigration Detention Centre ("Villawood")
with his family.

I have found that
certain of the acts or practices complained of were inconsistent with
or contrary to a number of articles of the Convention on the Rights
of the Child
("CROC"). I set out my reasons below.

In my view, those
findings illustrate significant flaws in Australia's treatment of children
in detention centres. The child who is the subject of this complaint has
witnessed events to which I am certain no Australian would wish their
own child be exposed. The Commonwealth of Australia (by the Department
of Immigration and Multicultural and Indigenous Affairs - "DIMIA")
failed to take appropriate action to protect that child's mental and physical
health, which deteriorated by reason of the traumatic events he witnessed.

I have made a number
of recommendations to avoid further similar acts or practices.

I have also recommended
that compensation be paid by the respondent and that a written apology
be furnished, on behalf of the respondent, by the Minister for Immigration
and Multicultural and Indigenous Affairs (the "Minister"). Those
recommendations are directed at remedying or reducing the loss and damage
suffered by the child who is the subject of this complaint. They also
reflect the serious nature of the breaches involved in this matter.

Finally, I have considered
and discussed material received from the respondent which indicates that,
since the time of the acts or practices that are the subject of this complaint,
the respondent has taken (or is in the process of taking) certain steps
which partially address some of the matters upon which I have made recommendations.
While I have made some further suggestions on the basis of that material,
the respondent is to be commended for taking those steps.

I am disappointed
that the respondent has otherwise largely rejected my recommendations.
However, the respondent has sought to assure me, in the course of this
inquiry, that it takes seriously its obligations under CROC. I am therefore
hopeful that a considered view of this matter will lead to further constructive
and systemic remedial action, so as to protect this particularly vulnerable
group of people and comply with Australia's international obligations.

2.
Jurisdiction

The jurisdiction
of the Commission in relation to complaints of acts or practices inconsistent
with or contrary to human rights in the context of the detention of unauthorised
arrivals was described in detail in the Commission's report to the Attorney-General
entitled Those who've come across the seas: Detention of unauthorised
arrivals
[1]. A description of the Commission's jurisdiction
is also set out at Appendix A of this report.

3.
Relevant legislation and guidelines

In order to understand
the factual circumstances underlying this complaint, it is necessary to
set out the relevant provisions from the Migration Act 1958 (Cth) (the
"Migration Act") and from the applicable Migration Series Instruction
("MSI").

Section 5(1) of the
Migration Act provides that:

detain means:

(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably
necessary to do so.
detainee means a person detained.
…
immigration detention means:
(a) being in the company of, and restrained by:

(i) an officer;
or

(ii) in relation to a particular detainee-another person directed by
the Secretary to accompany and restrain the detainee; or

(b) being held
by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a
Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non-citizen who is prevented, under section 249,
from leaving a vessel-on that vessel; or
(v) in another place approved by the Minister in writing.

Section 14 of the
Migration Act provides that an unlawful non-citizen is a person who is
present in the "migration zone" who is not an Australian citizen
and who does not hold a visa that is in effect.

Section 15 of the
Migration Act provides (for the avoidance of doubt) that if a person is
in the migration zone and their visa is cancelled then, upon cancellation,
that person becomes an unlawful non-citizen, unless immediately after
the cancellation the former holder holds another visa that is in effect.

Section 189 of the
Migration Act provides for the detention of unlawful non-citizens in the
following manner:

If an officer knows
or reasonably suspects that a person in the migration zone is an unlawful
non-citizen, the officer must detain the person.

If an officer reasonably
suspects that a person in Australia but outside the migration zone:

(a) is seeking
to enter the migration zone; and
(b) would, if in the migration zone, be an unlawful non-citizen;

the officer must
detain the person.

Section 196 of the
Migration Act provides that, once detained, an unlawful non-citizen must
be kept in immigration detention unless removed from Australia , deported
or granted a visa.

Section 417 of the
Migration Act provides (in part):

(1) If the Minister
thinks that it is in the public interest to do so, the Minister may
substitute for a decision of the Tribunal under section 415 another
decision, being a decision that is more favourable to the applicant,
whether or not the Tribunal had the power to make that other decision.

(2) In exercising
the power under subsection (1) on or after 1 September 1994, the Minister
is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the
regulations, but is bound by all other provisions of this Act.

(3) The power under
subsection (1) may only be exercised by the Minister personally.

…..
(7) The Minister does not have a duty to consider whether to exercise
the power under subsection (1) in respect of any decision, whether he
or she is requested to do so by the applicant or by any other person,
or in any other circumstances.

"Tribunal",
for the purposes of that provision, means the Refugee Review Tribunal
(the "RRT").

The Minister has
issued guidelines regarding the possible exercise of the powers set out
in section 417 of the Migration Act. Those guidelines are contained in
MSI 225 entitled "Ministerial Guidelines for the Identification of
Unique or Exceptional Cases Where it May Be in the Public Interest to
Substitute a More Favourable Decision Under S345, 351, 391, 417, 454 of
the Migration Act 1958" ("MSI 225").

Included amongst
the factors to be considered to determine whether a case involves "unique
or exceptional circumstances" sufficient to justify the use of the
powers conferred by section 417 are circumstances that:

…..may bring
Australia's obligations as a signatory to the Convention on the Rights
of the Child (CROC) into consideration." (see paragraph 4.2.3 -
which goes on to reproduce article 3 of CROC).

MSI 225 also specifies
that:

  • Where a case
    officer receives notice of a decision of the RRT that is not the most
    favourable for the applicant, they are to assess the applicant's circumstances
    against MSI 225 and either bring the case to the attention of the Minister
    or make a file note to the effect that the case does not fall within
    the ambit of MSI 225 [3]; and
  • Where a request
    for Ministerial intervention under section 417 is made in writing, a
    case officer must assess the applicant's circumstances against MSI 225
    and either:

    1. for cases
    falling within the ambit of the MSI, bring the case to the Minister's
    attention in a submission so that the Minister may consider exercising
    her or his power; or
    2. for cases falling outside the ambit of the MSI, bring a short
    summary of the case in a schedule format to the Minister's attention
    recommending that the Minister not consider exercising his power.
    [4]

4.
The complaint and the complainant's evidence

Mr Badraie's complaint
was received by the Commission on 3 September 2001.

Mr Badraie states
that he is an Iranian national who is seeking a Protection Visa ("PV").
He and his family were detained at Woomera from 27 March 2000 until 3
March 2001, when they were transferred to Villawood.

At the time that
his complaint was lodged, Mr Badraie's wife and daughter were also detained
in Villawood. They have both been since released on Bridging Visas ("BV"s).

Mr Badraie alleges
that the rights of his son, Shayan, have been breached by the respondent.
Shayan was born 4 January 1995 (meaning that he was 5 and 6 years old
when the matters that are the subject of this complaint took place). Mr
Badraie alleges that the conditions of detention at Woomera were such
that his son developed a mental illness after witnessing matters such
as riots, detainees harming themselves and violence by detainees and officers
of Australasian Correctional Management ("ACM"). He also states
that after the family's transfer to Villawood, Shayan witnessed a further
incident of self harm. Shayan then stopped eating, taking liquids and
talking.

Shayan was sent to
The Children's Hospital at Westmead ("Westmead") on 15 May 2001.
Mr Badraie has provided evidence to show that various child psychologists
recommended that Shayan should not be sent back to a detention environment
and also that he should remain with his family: in particular, his father
with whom he had a strong bond.

From 12 July 2001
until 9 August 2001, Shayan was readmitted to Westmead Hospital for rehydration
on a number of occasions and each time was returned to Villawood.
Shayan was placed into a foster care arrangement on 23 August 2001 where
he remained until 16 January 2002. Mr Badraie states that those arrangements
were put in place without Mr Badraie's permission.

Mr Badraie made an
application for a PV for himself and for his family, which was rejected
by the RRT. His application for review of the RRT's decision was dismissed
by the Federal Court at first instance. That decision was overturned by
the Full Federal Court on 8 April 2002 and the matter was remitted back
to the RRT.

5.
Respondent's response

A response was received
from DIMIA on behalf of the respondent on 14 March 2002.

The respondent denies
that the complainant's human rights have been breached.

The respondent states
that the Australian Government takes its international obligations very
seriously and is concerned that children held in detention receive appropriate
care.

The respondent states
that all members of the family unit who are included in an application
are applicants for PVs in their own right with the opportunity to make
separate claims if they wish. The respondent states that this step in
the process is consistent with the provisions of CROC as it is intended
to ensure, among other things, full exploration of all claims including
those claims made by applications relevant to children. The respondent
states that Shayan's claim was included in his parents' PV application
of 26 June 2000.

The respondent states
that in June 2001, the Minister decided not to exercise his power under
section 417 of the Migration Act to grant PVs to the Badraie family. They
were informed of this in a letter dated 26 June 2001. The respondent states
that section 417 of the Migration Act gives the Minister the discretion
to exercise his power to substitute the RRT decision.

The respondent states
that, in mid to late 2001, recommendations that Shayan remain in the care
of his parents in a non-detention environment were considered in the context
of Australia's obligations as a signatory to international conventions
such as CROC, as well as the Department's responsibility to ensure consistent
application of Australian migration law. Following Shayan's refusal to
eat or drink while at Villawood, it was decided to place Shayan in foster
care. He left Villawood on 23 August 2001. The Assistant Secretary, Unauthorised
Arrivals and Detention Branch, weighed up all of the information available
to the Department from various professionals, including Westmead specialists,
and carefully considered the options before deciding that Shayan's best
interests were served by his removal from the detention centre environment.
The Department states that Shayan's parents consented to the foster care
arrangements. The respondent states that the foster family was chosen
by Mr and Mrs Badraie and this family was assessed by DOCS as being suitable
and consistent with established standards. The respondent states that
it arranged for Shayan to maintain regular ongoing contact with his family
in the form of three visits a week and regular telephone access. His parents
were consulted in all significant decisions regarding Shayan.

The respondent states
that it was advised on 8 January 2002 that the foster family could no
longer provide foster care. As a consequence, arrangements were made with
the Supreme Islamic Council of NSW to provide community support and Shayan's
mother and sister were released into the community.

The respondent states
that as unlawful non-citizens the members of the Badraie family are subject
to sections 189, 196 and 198 of the Migration Act. Because they failed
to lodge their applications for judicial review with the Full Federal
Court within the required timeframe, they did not at the time of the response
have before the courts an application for a judicial review of a decision
to refuse a Protection (Class XA) Visa. As a consequence, according to
the respondent, the members of the Badraie family did not meet the eligibility
requirements to apply for a BV as outlined at sub-regulation 2.20(9) of
the Migration Regulations 1994 (the "Migration Regulations").
However, the Minister exercised his powers under section 417 of the Migration
Act on 16 January 2002 to grant BVs to Shayan, Mrs Badraie and Shabnam,
Shayan's sister. Mr Badraie remains in detention at Villawood. This arrangement
will continue until such time as the family members' claims for refugee
status are determined.

6.
Documentary material provided by to the Commission

The Commission has
received documentary material from both parties. A list of the documents
before the Commission appears in appendix B.

I have summarised
or extracted below parts of those documents that are relevant to the issues
before me.

7.
My preliminary findings and DIMIA's response to my preliminary findings

On 19 April 2002,
I made preliminary findings to the effect that certain of the acts or
practices complained of were inconsistent with or contrary to Shayan's
human rights under articles 3, 9, 19 and 37 of CROC (my "Preliminary
Findings").

I have included extracts
from those Preliminary Findings in sections 9, 11, 13, 14 and 15 below.

DIMIA, on behalf
of the respondent, was given an opportunity to make oral or written submissions
in response to my Preliminary Findings. It chose to make written submissions,
which were due on 20 May 2002.

DIMIA (on behalf
of the respondent) sought and was granted two extensions:

  • on 22 May 2002,
    it was granted an extension to 3 June 2002;
  • it was subsequently
    granted a further extension until 21 June 2002 (on the basis that no
    further extensions would be given).

The respondent's
submissions were received by the Commission on 26 June 2002.

I have included extracts
from those submissions, as appropriate, in sections 9, 11, 13, 14 and
15 below.

8.
Section 29 notice

On 24 September 2002,
I issued a notice under section 29 of the HREOC Act. The findings and
recommendations made in that notice appear in sections 9, 10, 11, 12,
13, 14, 15 and 16 below.

Under section 29(2)(e)
of HREOCA, I must state in this report whether, to the knowledge of the
Commission, the respondent has taken or is taking any action as a result
of my findings and recommendations. I therefore invited DIMIA, on behalf
of the respondent, to advise the Commission of those matters. DIMIA's
response to that invitation is summarised and partially extracted in section
17 of this report.

9.
Findings of fact

9.1 Introduction

I have set out below
my findings of fact. As is appropriate at this stage of the inquiry, I
have set those findings out in a more detailed fashion than was the case
for my Preliminary Findings.

The respondent has
made a number of useful comments regarding my Preliminary Findings of
Fact. I have, where appropriate, discussed and/or incorporated the respondent's
comments.

9.2 Detention

Shayan and his family
were detained under the Migration Act on 27 March 2000 when they entered
Australia without visas. They were detained in Woomera from 27 March 2000
until 3 March 2001.

9.3 "Riots"
or "disturbances"

In late March, during
early April and in late July 2000, Shayan witnessed incidents which Mr
Badraie has described (in his complaint) as "riots" and which
the respondent has described (in its submissions in response to my Preliminary
Findings) as "disturbances".

In his complaint,
Mr Badraie alleged that, during those incidents:

  • Shayan witnessed
    violence on the part of ACM Officers and detainees;
  • this included
    batons being used by ACM officers on detainees;
  • a water cannon
    was directed at the Badraie's living quarters; and
  • Shayan (and the
    other members of the Badraie family) were exposed to tear gas.

Mr Badraie further
alleged that, as a result of those incidents, Shayan began having panic
attacks, developed a fear of ACM guards, became socially withdrawn and
lost his appetite. The respondent has not contested those allegations
and accepted (at page 12 of its submissions in response to my Preliminary
Findings) that:

"…it
is possible that Shayan witnessed disturbances and acts of violence
while in detention."

In those circumstances,
I accept Mr Badraie's evidence regarding those matters.

Mr Badraie further
alleges that, at times during this period, he had difficulties obtaining
medical attention for Shayan. Mr Badraie says that, on some occasions,
he was unable to obtain any medical assistance at all.

The respondent has
stated, in its response to my Preliminary Findings, that a full time and
a part time medical practitioner were available to detainees (and were
on call 24 hours per day for emergencies). Two psychologists were also
on call 24 hours a day seven days a week.

The respondent has
not sought to challenge Mr Badraie's specific allegations and in those
circumstances I accept them.

The respondent appears
to accept that it knew, from July 2000, that Shayan was experiencing distress
in the detention environment .

9.4 Application
for protection visas

On 26 June 2000,
Mr Badraie lodged an application for PVs for himself and for Shayan, Shabnam
(Shayan's sister) and Mrs Badraie.

That application
was refused by a delegate of the Minister on 22 September 2000.

9.5 Attempted
self harm incidents witnessed at Woomera

In his complaint,
Mr Badraie alleged that, on or around 19 December 2000, Shayan witnessed
an incident during which a detainee held a shard of glass to his chest.
He further alleged that, following that incident, Shayan became very distressed,
began to wake during the night holding his chest and wanted to sleep during
the day rather than the night by reason of his fear.

In my Preliminary
Findings, I made a finding that, while in Woomera:

Shayan witnessed
a man cut his wrists… [6]

This clearly did
not accurately state the substance of Mr Badraie's allegation. The respondent
has assisted in clarifying this matter by noting (at page 3 of its submissions
in response to my Preliminary Findings) that there are no reported incidents
of self harm attempts at Woomera between 10 December and 30 December 2000.
The respondent has also drawn my attention to the following aspects of
ACM's record keeping procedures:

Australasian Correctional
Management (ACM) is required under the Immigration Detention Standards
to report incidents that occur within an ACM managed facility. Such
reports must include any incident or occurrence which threatens or disrupts
security and good order, or the health, safety or welfare of detainees.

The timeframe in
which an incident report must be completed depends on the nature of
the incident. Major incidents are to be immediately reported orally
and in full detail in writing within four hours. Minor incidents are
to be reported in ful1 writing (sic) within 24 hours.

A major incident
is an event which:

  • Seriously effects
    the good order or security of a centre;
  • Threatens the
    success of Detention Services activities; or
  • Threatens the
    safety of detainees, staff or other personnel

Given the fact that
it does not appear to be alleged by Mr Badraie that the detainee did any
actual harm to himself, it is by no means clear to me that there would
be documentary records of that incident. The respondent does not appear
to specifically challenge Mr Badraie's allegation regarding this incident,
it simply says there is no record of it. In those circumstances, I accept
Mr Badraie's allegation.

In his complaint,
Mr Badraie alleged that on or around 4 January 2001, Shayan "witnessed
an incident of a man at the top of a tree threatening to jump".

In my Preliminary
Findings, I mistakenly found that Shayan had witnessed "another man
jump from a tree". As the respondent observes (and as is clear from
Mr Badraie's initial complaint) the man did not actually jump from the
tree. According to the respondent, he came down after being requested
to do so by a DIMIA manager.

I find accordingly.

I also note that
the complainant has provided to the Commission a copy of a transcript
of a story which appeared on Australian Broadcasting Corporation's programme
the 7:30 Report, on 20 August 2001. In that story, Mr Wayne Lynch (who
is a qualified nurse and who was employed as a counsellor at Woomera by
ACM) made the following statements regarding that incident:

There was a man
who climbed a tree and was threatening self-harm.

I was called out
into the compound to negotiate with this man to try and do an assessment
and have him come down from the tree.

It was just after
the man at the Maribrynong detention centre had killed himself.

There was concern
that this man might be doing the same thing.

As I was negotiating
with this man, I noticed Shayan was sitting very close to the tree watching
what was happening.

I remember that
I went over to Shayan and asked him if he'd go away.

I remember speaking
to a couple of people at the time asking if they could take Shayan away
because I did not think this would be good for his mental health.

While I am wary of
making findings on the basis of such material (which might have been better
provided to the Commission in statement form), the Commission is not bound
by the rules of evidence in informing itself in the course of an inquiry
. Given that that material appears to be consistent with the other material
presented by the parties, I find that Shayan observed the incident in
the manner described by Mr Lynch.

9.6 Incident between
ACM Officers and the Badraie family

In an incident report
dated 12 January 2001, Mr Lynch referred to a discussion he had with Mr
Badraie that day. During that conversation, Mr Badraie told Mr Lynch that
he and Shayan had witnessed an officer making "masturbating gestures".
Mr Badraie felt that this was inappropriate in a context in which families
were eating and threw an apple at the officer. Mr Badraie was allegedly
told by the officer to "fuck off out of here". Mr Badraie further
stated that, following that incident, Shayan had a restless night and
a "significant increase in bed wetting".

Mr Badraie also refers
to this incident in his complaint. I note that, in that document, he alleges
that the masturbation gestures were made by both detainees and an ACM
officer.

The respondent has
not challenged this allegation and I find that the incident took place
as alleged.

9.7 Transfer of
the family to Sierra Compound

In his complaint,
Mr Badraie states that his family was transferred to "Sierra Compound"
at Woomera on or around 21 January 2001. It appears, from the documentation
provided by the parties discussed below, that the family was in fact transferred
to Sierra Compound on 20 January 2001.

In his complaint,
Mr Badraie described Seirra Compound as a "punishment area"
and alleged that, apart from a three year old girl, Shayan was the only
child in the compound.

In a memo dated 21
January 2001, Mr Lynch discussed issues raised by Mr Badraie in relation
to the transfer. Mr Badraie was said by Mr Lynch to be "very upset"
by the effect the transfer had had on Shayan. Mr Lynch then noted the
following matters:

  • On 20 January
    2001, during the transfer of the family to Sierra Compound, Shayan allegedly
    witnessed his father being restrained by ACM officers, his mother being
    told to "shut up, shut up" and other officers being called
    to assist. Mr Badraie told Mr Lynch that those incidents took place
    because the family were "slow" to move from the main compound
    until their request for a larger room in Sierra Compound was met.
  • Shayan had always
    feared Sierra Compound, by reason of the fact that he understood that
    anyone who was sent there was "bad". The relocation had resulted
    in Shayan not eating or sleeping. Mr Badraie also stated that Shayan
    had spent the previous night crying.
  • The fact that
    Shayan was "alone" in Sierra Compound "with no other
    children" was said to be a further matter contributing to his distress
    (as noted above, Mr Badraie refers in his complaint to there having
    been one other child detainee in Sierra Compound and I find that Mr
    Lynch was mistaken here).

Mr Lynch recommended
that:

  • "due consideration
    be given to the psychological impact of these events on Shayan, who
    is six years of age given this child's history at WIRPC";
  • Shayan and his
    family be immediately relocated, particularly in light of threats made
    by detainees in Sierra compound to create a disturbance in the near
    future;
  • "in future,
    Medical &/or programs be included in relocation discussions to avoid
    situations like this occuring"; and
  • those recommendations
    be communicated to DIMIA as a matter of urgency.

I note that a further
account of the events surrounding the transfer of the Badraie family to
Sierra compound appears in an incident report dated 20 January 2001, prepared
by Mr Michael Schilt (employed by ACM as Detention Manager). According
to that report, Mr Badraie became "extremely aggressive" towards
detention staff working in Sierra Compound by reason of the fact that
he wanted to move from the room that had been allocated to his family
to a larger building (which Mr Schilt alleged was already occupied by
another larger family). Mr Badraie is said to have become aggressive in
a physical manner. The report refers to actions being taken by members
of a team described as "CERT 1" to isolate Mr Badraie from other
detainees who had gathered to watch.

It appears to be
common ground that during or shortly after the transfer of the Badraie
family to Sierra compound, an incident did occur between Mr Badraie and
ACM officers, which was witnessed by Shayan. I find accordingly. I further
find that:

  • the respondent
    (or its agents) did not at that time have in place all appropriate measures
    that might have avoided such incidents, particularly the measure recomended
    by Mr Lynch being that "Medical &/or programs be included in
    relocation discussions"; and
  • Shayan was detrimentally
    affected by the transfer and the incident between his father and the
    ACM officers in the manner described in Mr Lynch's memorandum.

Neither party has
sought to explain to the Commission why the Badraie family was transferred
to Sierra Compound. I note that no allegation has been raised that the
family had engaged in conduct requiring punishment or close confinement.

9.8 Self harm
incident that took place on or about 22 February 2001

On 22 February 2001,
Mr Lynch wrote a memorandum to Ms Trish Farrow (copied to the Centre Manager,
Operations Manager and the DIMIA Manager). He referred to a conversation
with Mr Badraie regarding a self harm incident (involving a detainee identified
as LEE 068) which had had a detrimental effect on Shayan. Those effects
were said to be "bed wetting, nightmares, anorexia, insomnia and
tearfulness". Shayan had also been disturbed by news that "new
arrivals" were already being released.

9.9 Transfer to
Villawood

It appears to be
common ground that, on 3 March 2001, the family was transferred to Villawood.

9.10 RRT Decision

On 9 March 2001,
the RRT affirmed the decision of the Minister's delegate to refuse to
grant protection visas to the Badraie family. In reviewing that decision,
the RRT conducted hearings on 23 November 2000 and 3 January 2001.

At the hearing held
3 January 2001, Mr Badraie was said to have made submissions regarding
Shayan. In the Tribunal's reasons it was noted, as regards those submissions:

The Applicant raised
the matter of his son's emotional health with the Tribunal. His son
had witnessed a violent incident in the detention centre and was traumatised
by this. Medical evidence supporting this was available to the Tribunal.
[8]

Later in its reasons,
the RRT noted that:

The Tribunal was
asked to consider the plight of the Applicant husband's son who has
been diagnosed with post traumatic stress disorder after witnessing
a distressing incident while in immigration detention. The Applicants'
file contains professional assessments of the child's problem, their
source and the likelihood of the need for further professional help.
It was submitted that the child has become an inadvertent victim of
the policy of detaining children who enter Australia illegally. The
Tribunal informed the Applicants that humanitarian consideration was
a matter for the Minister, but that the situation of the child could
form part of a humanitarian request. [9]

The reference to
the "Applicants' file" appears to be a reference to the material
provided to the RRT by DIMIA. In that regard, I note that the RRT states
on its website that, when considering an application for review:

The Tribunal will
ask the Department to send us your file.

That material is
apparently provided to the RRT under section 418(3) of the Migration Act
or pursuant to a request made under section 424 of the Migration Act.

The RRT's comments
indicate that there appeared on Shayan's "file", at the date
of the second hearing, "professional assessments" stating that:

  • Shayan had been
    diagnosed with Post Traumatic Stress Disorder ("PTSD");
  • Shayan's condition
    arose after witnessing a distressing incident (which, given the date
    of the second hearing before the RRT, must have been an incident in
    Woomera).

The parties have
not provided to the Commission copies of those documents. It is nevertheless
open to me to find on the basis of the RRT's reasons that the Department
was aware, as at 3 January 2001, that Shayan had been diagnosed with PTSD
for which he required further help.

9.11 Report prepared
by Dr Timothy Hannan

A memorandum to the
Minister dated 7 June 2001 (discussed below) partially reproduces a report
prepared by Dr Timothy Hannan, Clinical Psychologist and Clinical Neurophysiologist
at Westmead on or about 28 March 2001.

Again, that report
has not been provided to the Commission. I find that that report was at
some time provided to DIMIA, although it is not entirely clear when that
took place.

In the extracts included
in the memorandum to the Minister, Dr Hannan described Shayan's behaviour
after Shayan witnessed the riots or disturbances at Woomera. Dr Hannan
stated that, after seeing detainees setting themselves on fire, Shayan
was said to have been very upset and, in the months following, experienced
frequent sleep disturbances often accompanied by bed-wetting. Upon waking
Shayan would cry and express fear that his family was about to be taken
away and harmed. Those episodes would recur up to ten times per night.
Shayan had also reportedly stated, not long before Dr Hannan's report,
that he did not want to eat because he wanted to die.

Dr Hannan's opinion
(as extracted in the memorandum to the Minister) was that Shayan:

remains at risk
of suffering a prolonged stress syndrome while he remains in the detention
centre…. It is likely that this condition would improve should
he be placed in an emotionally-supportive environment that he perceives
as safe and stable.

9.12 Self harm
incident that took place on or about 30 April 2001

In his complaint,
Mr Badraie states:

….on 7-5-01
my son witnessed a further traumatic event. A man cut his wrists and
Shayan believed him to be dead. He stopped speaking, refused to eat,
began having nightmares and had to be forced to take fluids.

In my Preliminary
Findings, I stated that:

on 7 May 2001 Shayan
witnessed an incident of self-harm by a detainee. The detainee cut his
wrists and Shayan believed him to be dead.

I have there implied
that Shayan witnessed the man cut his wrists. My finding was in part based
upon the Memorandum to the Minister 20 June 2001 (referred to above and
discussed further below), in which it was stated:

…Shayan witnessed
a detainee at Villawood cutting his wrists… [10]

The respondent has,
with its submissions in response to my Preliminary Findings, offered further
clarification regarding that incident.

The respondent states
that the incident in question took place on 30 April 2001, rather than
7 May 2001. I accept that that is so.

The respondent has
also provided a document, signed by both the Health Services Manager and
the Centre Manager at Villawood, that is said by the respondent to relate
to that incident. That document indicates that:

  • Two children
    (one of whom the respondent accepts was Shayan) saw that the detainee
    was bleeding;
  • They then reported
    the situation to nursing staff;
  • The detainee was
    found in his room with a "1-2 cm laceration to the left wrist";
  • The detainee
    lost approximately 50 to 100 millilitres of blood;
  • Nursing staff
    and a General Practitioner treated the detainee; and
  • An ambulance
    was called and the detainee was taken first to Liverpool Hospital and
    then to Banks House for psychiatric assessment.

The respondent has
also assisted by providing the following information:

….the detainee
who self harmed apparently alone on this date stated in a letter dated
18 May 2001 to the Minister that:

"I was in
my room, the doors were locked and the curtains were down everywhere.
I cut my veins with the intention to commit suicide. At about 11 am
at the time when I could hardly breath (sic) a/an [withheld] lady who
lived opposite to my room found out about my condition and informed
the nurse…" [11]

The respondent has
not provided a copy of that letter.

I find that Shayan
witnessed the unnamed detainee bleeding from a laceration to the wrist,
but did not witness the laceration being made. It is unclear to me whether
Shayan also witnessed the unnamed detainee being treated and taken to
hospital and I make no finding regarding those matters.

9.13 Shayan's
first admission to Westmead

It appears to be
accepted by both parties that, after Shayan witnessed the aftermath of
the self harm incident of 30 April 2001, his mental and physical health
deteriorated. Dr Hannan's report indicates that he was at that time already
considered at risk of developing prolonged stress syndrome and the material
before the RRT indicated that he had, at some time prior to 3 January
2001, been diagnosed with PTSD.

On 3 May 2001, Shayan
was admitted to Westmead. He was discharged and returned to Villawood
on 9 May 2001.

Dr Karen Zwi, Dr
Brenda Herzberg and Ms Mee Mee Lee prepared a report in relation to Shayan
dated 10 May 2001. Dr Zwi is a Paediatric Fellow of the Department of
Psychological Medicine at Westmead. Dr Herzberg is the Staff Specialist
in that Department. Ms Lee is a Senior Clinical Psychologist in that Department.

Amongst other things,
that report stated that:

  • Shayan was assessed,
    on admission to Westmead, as being acutely traumatised and at risk of
    dehydration due to poor fluid intake;
  • Shayan had PTSD
    which had developed in:
  • "the context
    of the physically restraining environment of the detention centres,
    in which he has now resided for close to fourteen months, during which
    time he has been exposed to aversive events such as detainees going
    on hunger strike and self harming. They [Shayan's symptoms] are also
    perpetuated by the lack of predictability regarding his future and
    the inability of his parents to reassure him due to their own uncertainty,
    and furthermore the lack of a stable peer group in that other children
    move out of the detention centre while he stays behind";

  • there was a high
    risk of acute recurrence of symptoms unless his environmental circumstances
    changed;
  • "In order
    for full recovery to occur Shayan would benefit from a more 'normal'
    living environment; and continuing to live together with his family";
  • the main contributor
    to Shayan's symptoms was his environmental stress; and
  • if he was to remain
    in Villawood, a consistent peer group would enhance his sense of stability
    and it would be helpful to send him to a school where he could access
    such a peer group.

9.14 Shayan's
second admission to Westmead

On 15 May 2001, Shayan
was readmitted to Westmead.

Also on 15 May 2001,
Dr Ramesh Nair, a psychologist at Villawood, apparently prepared a report
regarding Shayan. I say apparently because again the parties have not
provided a copy of that report to the Commission. However, like Dr Hannan's
report, it is referred to and partially reproduced in the memorandum to
the Minister dated 7 June 2001 (referred to above and discussed below).
The extract in that memorandum states:

The main reasons
for the symptoms are the fences, the barbed wire and the uniforms of
the detention officers. These are reflected quite clearly through the
drawings he did with me as part of the therapeutic techniques used….

The main concerns
are the severity of the symptoms and the young age of the boy. After
many attempts it is clear that to alleviate the symptoms within the
facility will almost not be possible as the boy has a severe difficulty
in the issue of trust.

Prolongation of
the symptoms can bring in long lasting psychological damage in the child
and the personality development can get distorted.

The other issue
is that by seeing the child's symptoms, the parents are distressed and
the whole family is getting into a severe dysfunctional state.

On 18 May 2001, Dr
David Dossetor and Dr Zwi wrote to Dr Greenwood, a medical officer at
Villawood. Dr Dossetor is the Head of the Department of Psychological
Medicine at Westmead. The letter was copied to, amongst other people,
Dr Sally Cleland, Health Services Manager at Villawood, Dr Nair and Mr
Fulvio Fabreschi, Centre Manager at Villawood.

The letter referred
to Shayan's readmission and stated:

Shayan's readmission
reinforces that his symptoms recur if he is returned to the environment
that he has found traumatic. There are limited psychological interventions
that we can provide that will over-ride the aversive stimulus. To prevent
further morbidity, we are looking for the co-operation of the Villawood
Detention Centre and the Department of Immigration to avoid returning
him, to an aversive environment and to find a means to provide a community
placement with an appropriate peer group and educational setting. From
a psychiatric point of view, it is not in the child's best interest
to discharge him back to his current residential setting.

On 28 May 2001, Dr
Nair wrote to "the Centre Manager". Dr Nair noted Shayan's readmission
and expressed his concern about Shayan's emotional state. Dr Nair stated
that:

"It was thought
that the Department of Community Services (DoCS), should be contacted
and to explore the possibility of placing the boy under their care.
At present it is obvious that even if DoCS were to assess the boy it
is not possible to separate the boy from the parents because of the
emotional dependency.

The most pertinent
aspect is that during the developmental stage of the personality in
the boy a chronic emotional disorder can have extreme consequences in
his growth process. The disorders he can develop can range from personality
disorders to chronic mental illnesses.

As such alternate
modes of detention where the boy can feel secure and emotionally safe
has (sic) to be thought of.

A long-term psychosocial
rehabilitation is required for the boy and supportive therapy for the
parents are indicated for the family to attain a healthy level of functioning.
I request the authorities to consider the options and expedite this
matter as the boy is in a precarious state of functioning.

On 31 May 2001, Dr
Dossetor and Dr Zwi wrote directly to the Minister. The letter was copied
to, inter alia, Dr Greenwood, Dr Nair and Mr Fabreschi.

The letter noted
that Shayan had been admitted to Westmead, that being his second admission
for potentially life threatening symptoms such as refusal to eat or drink.
The letter further stated:

We are concerned
about the risks of returning Shayan back to Villawood Detention Centre.
From the point of view of his psychological treatment, he should not
be re-exposed to the emotionally traumatic environment that precipitated
his acute deterioration. On the other hand, it is inappropriate for
him to remain indefinitely in a tertiary hospital setting. There is
very little else that can be done to help him in terms of psychological
treatment. We therefore need your office to help in this matter urgently.
From the perspective of his mental health management, Shayan's needs
are to be in a predicable, safe home setting away from the environment
that has traumatised him, to be in the care of his parents, and to be
able to develop stable peer relationships at school. We need the Department
of Immigration to participate in resolving this problem of discharge
placement for Shayan, because of the likely impact on his emotional
and physical well-being of returning him to his current residential
placement

On 31 May 2001, Mr
Ali Efrem of DIMIA wrote to Mr Fabreschi in a letter headed "URGENT".
Mr Efrem there stated:

This office is
in discussions with our senior staff in the matter of Shayan Badraie
and how an alternative place of detention can be arranged where he and
the family may be managed appropriately.

Although we are
in receipt of the advice of Sally Cleland on management of Shayan, we
kindly request your views as to how the whole family could be managed
by ACM outside Villawood.

A handwritten note,
apparently written by Mr Fabreschi, appears at the foot of that document
stating:

Ali

At this stage we
have no facilities to manage this family outside the centre.

Perhaps we need
to get together to investigate the options relating to this matter further.

On 19 June 2001,
Dr Greenwood wrote to Mr Fabreschi. In that letter, Dr Greenwood stated:

[Shayan] is not
responding well to management in hospital this time and has become very
dependent on his parents. Further return to Villawood given current
management facilities for this condition will without doubt induce an
even worsened condition from which he may not recover. I have grave
concerns for his mental health if he is again subjected to this environment.

On 29 June 2001,
Dr Dossetor wrote to the Minister, repeating his concern about Shayan
being returned to Villawood. I note that both DIMIA (in its response to
my Preliminary Findings) and I (in those findings) mistakenly refer to
this letter having been sent on 29 July 2001.

Dr Dossetor there
stated:

As is known to
you from previous correspondence, Shayan has been diagnosed with Posttraumatic
(sic) Stress Disorder and in hospital has demonstrated an exacerbation
of symptoms whenever situations which remind him of the Detention Centres
arise. From a psychiatric perspective, it would be traumatic and therefore
harmful for him to be discharged back to the Detention Centre.

Since the resolution
of the immigration status of this family is taking an extended period
of time, we would urge you to consider a community placement for the
family. We consider it inappropriate for Shayan to be housed in a tertiary
hospital setting while all the administrative work is being undertaken.
His mental health needs are to be in a safe predictable environment,
able to attend school with his peers and to be with his family.

With regard to
the opinion of foster care, which has been mooted by Sally Cleland of
ACM, we would consider this highly inappropriate and potentially damaging
from a psychological point of view. Shayan still displays severe anxiety
symptoms with previous separations, and remains very sensitive to separation.
If foster care involves separation from both parents, we expect this
would be very traumatic for Shayan.

That letter was copied
to, inter alia, Ms Cleland, Dr Greenwood, Dr Nair and Mr Fabreschi. It
was also copied to Mr Frank Donatello of DIMIA's Parramatta office and
Mr Colin Lindsay, who worked as a case manager at that office.

9.15 First instance
Federal Court decision

During the period
of Shayan's second hospitalisation, the Federal Court affirmed the RRT's
decision in a judgment of Stone J handed down on 25 May 2001 . The family
did not appeal that decision within the 28 day time period provided for
such appeals.

9.16 Application
regarding section 417 of the Migration Act

During the period
of Shayan's hospitalisation, the Minister considered and decided against
exercising his powers under section 417 of the Migration Act (reproduced
above) which allows the Minister to substitute a "more favourable"
decision for a decision of the RRT.

On 24 May 2001, Migration
Agents acting on behalf of the Badraie family sent a letter to the Minister,
in which the Minister was asked to exercise his powers under section 417
of the Migration Act. That letter drew the Minister's attention to, inter
alia, Shayan's condition and treatment. It also appears to have annexed
copies of reports prepared by Drs Zwi and Dossetor. The Minister's attention
was also drawn to article 3 of CROC, which was said to be applicable to
Shayan's circumstances.
In a memorandum dated 7 June 2001, a Mr or Ms "SD Johnson" (on
behalf of John Williams, the DIMIA State Director for Western Australia)
provided information to the Minister to allow the Minister to:

commence consideration
of the exercise of your public interest powers under section 417 of
the Migration Act 1958.

The writer stated
that the Minister's intervention had been requested by the Migration Agents
acting on behalf of the Badraie family and by Drs Dossetor and Zwi. Of
course, the Minister's attention could have been drawn to the case by
DIMIA staff prior to 7 June 2002 and independently of the requests made
by the representatives of the Badraie family and Drs Dossetor and Zwi.
That procedure is provided for by paragraph 6.2 of MSI-225 and could have
occurred at any time after the RRT's decision of 9 March 2001.

As noted above, the
writer of the memorandum referred to reports prepared by Drs Hannan and
Nair, with which the Commission has not been provided. Extracts from those
reports that appear in the memorandum to the Minister have been reproduced
above. The writer also referred to and extracted the passage from the
letter prepared by Drs Dossetor and Zwi of 31 May 2001 reproduced above.

The writer went on
to note:

The option of placing
Shayan into foster care has been explored however is not appropriate
given the strong emotional bond that exists between him and his father.
Further, each treating psychologist has specified that Shayan needs
to remain in the care of his parents.

In a section headed
"Discussion", the writer drew the Minister's attention to the
fact that the case:

…may bring
Australian's (sic) obligations as a signatory to Convention on the Rights
of the Child (CROC) into consideration.

I consider article
3 of CROC in my findings below.

Under the heading
"Conclusion", the writer of the memorandum stated:

It is considered
that the case may warrant consideration of intervention in the public
interest.

The writer then discussed
the options of granting temporary or permanent PVs to all members of the
Badraie family (it was specifically noted that the Department had legal
advice to the effect that such visas could be granted to all members of
the family).

The only matter listed
under "Other Considerations - No Visa Grant" was:

ACM have advised
that they do not have a plan to manage the family outside Villawood
Detention Centre.

If that matter was
being advanced by the writer as a consideration weighing against the granting
of a visa, this part of the memorandum involved a mistake: ACM is the
respondent's detention services provider and has, to the Commission's
knowledge, no role in the "management" of persons released on
protection visas. It seems more likely that that matter was another consideration
thought by the writer to weigh in favour of granting a visa, in that it
was intended to refer to a view that there were obstacles to the option
of using alternative detention facilities. Assuming that to be so, there
were no matters identified in the memorandum of 7 June 2002 that weighed
against the Minister exercising his powers under section 417: every consideration
identified by the writer of the memorandum weighed in favour of that option.

On 20 June 2001,
the Minister decided not to exercise his discretion under section 417
of the Migration Act. The respondent has not provided to the Commission
the reasons for that decision.

The Badraie family
were informed of that decision by letter dated 26 June 2001. The parties
have not provided a copy of that letter to the Commission.

9.17 Shayan's
return to Villawood

On 12 July 2001,
Shayan was discharged from Westmead and returned to Villawood.

On 13 July 2001 Ms
Cleland wrote to Mr Efrem, stating that Shayan was again not eating or
drinking. Ms Clelland went on to state

what is the possibility
of separating the child from the parents, as they are not helping the
child?

Ms Cleland was, at
that time, aware of Dr Dossetor's view that such a course would be "highly
inappropriate and potentially damaging from a psychological point of view".

9.18 Further admissions
to Westmead

The respondent has
confirmed, in its response to my Preliminary Findings that, during each
of the following periods, Shayan was hospitalised and then returned to
Villawood:

  • 14/07/01 to 15/07/01;
  • 17/07/01 to 17/07/01;
  • 19/07/01 to 24/07/01;
  • 26/07/01 to 27/07/01;
  • 31/07/01 to 01/08/01;
    and
  • 5/08/01 to 6/08/01.

I note that there
appears to have been one further admission that commenced on 9 August
2001. It is unclear when Shayan was discharged on that occasion.

The respondent has
drawn my attention to the fact that a number of those visits were for
re-hydration purposes.

The respondent has
also provided to the Commission the following documents regarding this
period:

  • a document, dated
    26 July 2001, which appears to have been prepared by nurses at Westmead
    in relation to events that took place on 20 July 2001. On its face,
    that document appears to have been printed by Dr Zwi. It states, inter
    alia, that Mrs Badraie encouraged Shayan not to eat while in hospital.
  • a report from
    ACM Officer Khylie Brown. Ms Brown stated that, on 20 July 2001, Mrs
    Badraie was encouraging Shayan not to eat. She also stated that Mrs
    Badraie fed Shayan some ice cream.

9.19 Dr Greenwood's
letter of 7 August 2001

The respondent has
provided to the Commission a letter addressed to the Minister that appears
to bear the signature of Dr Greenwood. That letter is dated 7 August 2001.
The writer stated:

This young boy
has had multiple admissions to hospital for psychological care related
to incidents at Woomera and Villawood. The family have been heard to
coach the boy not to eat or drink while at the Centre. The Children's
Hospital staff have also made comment on the child being instructed
not to eat.

Today, his father
was throwing the child in the air.

This child is at
risk and being emotionally abused by his parents. He must be removed
from their care immediately. DOCS are aware but to date have no solution.
(original emphasis)

The incident described
in the second paragraph was described more fully in a document entitled
"Current Issues Brief" dated 16 August 2001 (discussed below).
In that document, it was stated:

On 7 August 2001
an incident occurred in which Mr Badraie was standing at the end of
the ramp leading to the supervisor's office with Shayan lying on a blanket.
Mr Badraie began to yell "my son is sick and they do nothing. He
doesn't eat or drink" or words to that effect. Mr Badraie then
lifted Shayan up over his head and whilst shaking him up and down above
his head continued to scream. ACM officers attempted to restrain Mr
Badraie or to relieve Shayan from his grip but were unable to do so
because they were concerned that this action would injure Shayan.

9.20 Dr Dossetor's
letter of 14 August 2001

On 14 August 2001,
Dr Dossetor wrote to Mr Wayne Geddes on behalf of the New South Wales
Minister for Health.

Amongst other things
Dr Dossetor noted that:

  • Upon Shayan's
    second admission to Westmead (15 May -12 July 2001):

    It took [a few
    days longer than his first admission] to get him eating and drinking
    normally. However, the only evident treatment was to avoid re-traumatising
    him and accordingly he was kept in hospital, without needing further
    specific medical treatment, until the 12th July as no alternative
    place of discharge was offered;

  • Shayan's discharge
    on 12 July 2001 arose after Shayan displayed:a few incidences of angry
    behaviour and one that required medical intervention. With his mother's
    failure to control him adequately in hospital I discharged him from
    medical care;
  • on one occasion
    during the period of frequent admissions from 14 July 2001 to about
    9 August 2001:

    Mrs Badraie reported
    (sic) influencing his intake and on one occasion nurses noted he ate
    better when no parent was present;

  • The hospital remained
    an inappropriate setting for him to stay; and
  • Mr Badraie had
    nominated an Iranian family as a suitable foster arrangement however:

Administrative difficulties
in the Department of Community Services and the Department of Immigration
seem to be impeding the ratification of this arrangement.

9.21 Current issues
brief

On or about 16 August
2001, an officer or officers of DIMIA prepared a "Current Issues
Brief" entitled "Minor Detainee Refusing to Eat or Drink at
the Villawood IDC", in relation to Shayan's health and arrangements
for foster care.

DIMIA has advised
the Commission (in its response dated 14 March 2002 to a notice issued
by me under section 21 of the HREOC Act) that that document represents
the decision record for the decision to place Shayan in a foster care
arrangement. DIMIA further advised that that decision was made by the
Assistant Secretary, Unauthorised Arrivals and Detention Branch.

I find this somewhat
perplexing as the document appears, on its face, to be a document designed
to brief the Minister (most likely for the purposes of enabling the Minister
to speak with the media).

Amongst other things,
the document states:

The Badraie family
have indicated that they are unwilling to return to Iran voluntarily
and options for their long-term detention are being considered. DIMA
staff met with Mr Badraie on 14 August and reiterated that the only
option available is for the family to apply for an Iranian passport
and agree to leave Australia. The family is not eligible for the grant
of bridging visas because of the refusal of their applications for protection
visas and their readiness for removal from Australia…..

….Because
of the ongoing health problem, DIMA and ACM have been assessing whether
Shayan can be adequately managed in a detention environment. The family
is not eligible for bridging visas. DIMA and ACM have been in consultation
with DOCS about the appropriate management of this child. In the circumstances,
placement outside the Centre, with an appropriate family to provide
foster care, was considered to be the appropriate course of action.

On Friday 20 July,
approval was sought and obtained from Shayan's parents to place him
in the care of a suitable foster family in consultation with the NSW
Department of Community Services (DOCS). His parents agreed to the placement
when advice was received from the ACM Health Services Manager at the
centre that the family was of a Muslim Persian background. However,
when DOCS contacted Mr Badraie on 23 July with regard to the placement,
they indicated that the family was of Palestinian origin. Upon hearing
this news, Mr Badraie withdrew his approval for Shayan to be placed
in DOCS care and indicated that Shayan's reluctance to be separated
from his family was also a major factor in this decision.

DOCS have refused
to override the father's decision and intervene in this case at that
stage. A letter from DOCS to Mr Colin Lindsay of DIMA Parramatta stated
that "there is (sic) not grounds for this department to intervene
further". After consultations with DIMA, Dr Nair, the clinical
psychologist at the Villawood IDC, approached Mr Badraie and requested
him to provide details of a family in the Sydney Iranian community who
he would allow to care for Shayan. Upon receipt of the details, the
Hornsby area DOCS office were requested to conduct an assessment to
determine the family's suitability for providing foster care to Shayan.
It is expected that a full assessment will take up to two weeks. DOCS
has provided a preliminary assessment of the family indicating their
suitability for the placement. DOCS has further advised that the placement
is DIMA's decision and a full assessment is not necessary. However,
it is DIMA's view that it would be preferable to obtain a full assessment
before placing the child. If suitable, Shayan can then be released from
the Centre to the family. The family's home would be declared an alternative
place of detention for this purpose. DIMA staff have met with the family
who are aware of, and understand their responsibilities if Shayan is
placed with them.

Mr Badraie has
confirmed his agreement for Shayan to be placed with the family. It
is not clear when arrangements will be finalised.

9.22 Application
to Full Federal Court for leave to appeal out of time

On 16 August 2001,
the Badraie family applied to the Full Federal Court for leave to appeal
the first instance decision out of time.

9.23 Placement
in foster care

On 23 August 2001,
Shayan was placed in foster care.

9.24 Assessments
prepared by Drs Wraith and Field during the period of Shayan's foster
care

A "Confidential
Assessment Report" regarding Shayan was completed by Dr Ruth Wraith,
Head of Department of Child Psychology, Royal Children's Hospital Melbourne,
on 4 September 2001. This was requested by Ms Phillipa Godwin of DIMIA
as an independent assessment of Shayan's psychological and physical health
and an assessment of family functioning and to develop recommendations
for Shayan's care. Dr Wraith noted that the foster family were finding
the placement more demanding and difficult than they envisaged, and that
as a result there were "multiple tensions in the family arising from
the constancy of care, Shayan's PTSD, symptoms such as sleep disturbance,
anger and clingy dependent behaviours which they find difficult to understand
and manage". She also noted that:

  • Shayan's parents
    were visiting him at the foster home for one hour visits, three days
    per week "under detention arrangements". Unrestricted telephone
    contact had also been arranged.
  • Mr and Mrs Badraie
    seemed to be accepting of these arrangements and were cooperating in
    relation to them.
  • Her observations
    supported Dr Dossetor's diagnosis of "acute PTSD on chronic PTSD".
  • Shayan had a deep
    and entrenched distrust of people and his environment in general, "with
    a longstanding specific fear - to the point of terror - of the Detention
    Centre environment, expressed through fear of fences and guards".
  • Shayan exhibited:

    "developmental
    delays in social, cognitive and expressive capacities. He is constricted
    and rigid in his personality style, is not able to communicate/express
    emotions or displace and sublimate in play as is appropriate and essential
    for a child his age. He has a paucity of knowledge of the world beyond
    his detention experience. His internal frame of reference of understanding
    of the world, interpersonal interactions and relationship problem
    solving is modelled on the detention centre experience and his relationship
    with his parents in this context."

Dr Wraith recommended
that a number of services would be needed to address recovery, including:

  • that Shayan should
    not in the immediate future (if at any time) be returned to the detention
    centre environment;
  • that any consideration
    of his return must be preceeded by a thorough assessment of his current
    status and evaluation of the impact of return;
  • a case manager
    be appointed to coordinate with the family, the foster family and DIMIA;
  • the maintenance
    of a healthy and functioning foster care environment for Shayan, his
    family and his foster family;
  • a foster care
    facilitator be appointed;
  • support be provided
    for Mr and Mrs Badraie in terms of their parenting role;
  • Shayan have continued
    contact with his family;
  • Shayan be given
    specific and urgent psychological therapy by a trained child psychoanalytic
    psychotherapist; and
  • attendance at
    school to meet Shayan's needs for education and peer relationships and
    to develop his social skills and the capacity to play.

On 12 November 2001,
Dr Wraith prepared a "Review Report" at the request of DIMIA.
Dr Wraith noted that:

  • Shayan had commenced
    primary school;
  • Mr Badraie had
    said he was pleased with Shayan's progress and his attendance at school.
    However, his major concern was that Shayan had not (as at 15 October
    2001) commenced treatment for more specific psychological issues. Mr
    Badraie was concerned about Shayan's angry outbursts and his fears connected
    with his detention experiences;
  • Shayan's foster
    family were continuing to find the foster placement stressful. Shayan's
    presence was causing serious conflicts with the nine year old son of
    the foster family. Shayan continued to need his foster parents with
    him when he went to sleep at night and woke in the morning;
  • that while Shayan
    "remains a deeply traumatised and vulnerable child, with ongoing
    developmental delays and deviations in social, cognitive and behavioural
    areas, and is continuing to meet the criteria for acute PTSD on chronic
    PTSD, he has made considerable progress over the last seven (7) weeks."

Amongst other things,
Dr Wraith recommended that:

  • Shayan's level
    of contact with his family needed to be maintained;
  • that her previous
    recommendation that Shayan receive individual psychotherapy be progressed
    as expediently as possible;
  • that support
    for Mr and Mrs Badraie in their parenting role (which had not then commenced)
    be provided.On 12 November 2001, Dr Jotsanya Field (a psychoanalyst/child
    psychotherapist) wrote to Ms Maureen Godfrey (a caseworker employed
    by DIMIA) regarding her first meeting with Shayan.

On 22 November 2001,
Dr Wraith prepared a further review report.

Dr Wraith noted:

  • Shayan continued
    to satisfy the criteria for PTSD, with ongoing developmental delays
    and deviations in social, cognitive and behavioural areas;
  • Shayan continued
    to attend school. He was described as looking forward to school and
    his teachers described him as "positive" at school.
  • the foster arrangment
    was under considerable stress and that Shayan's foster father had stated,
    directly to Dr Wraith that it "could not continue, it needed to
    end".
  • that the foster
    arrangement was likely to cease;
  • Shayan wet the
    bed when he dreamed of returning to the detention centre environment;
  • Shayan had asked
    his foster mother when he could go back and live with his family; and
  • the process of
    providing support for Mr and Mrs Badraie in their parenting role had
    still not commenced.

Dr Wraith recommended
that:

  • in the event
    that the foster arrangments ceased, it was not an option for Shayan
    to return to Villawood;
  • on the assumption
    that Mr and Mrs Badraie were to remain at Villawood, another foster
    family be identified;
  • Shayan's psychotherapy
    continue; and
  • Mr and Mrs Badraie
    be provided with support for their parenting roles.

Between 28 November
2001 and 5 December 2001, Dr Field met with Mr and Mrs Badraie, Shayan
and members of Shayan's foster family. Those meetings are summarised in
a document apparently sent by facsimile to DIMIA on 7 December 2001.

In reporting a meeting
with Mr and Mrs Badraie held on 28 November 2001, Dr Field stated:

Both parents were
very concerned about Shayan's distress at being separated from them,
and also about the impact on his foster family of taking care of him.
However, it is very difficult for them to appreciate the nature of his
emotional difficulties ie PTSD and the long term help he is going to
need. They also do not understand the importance of their role in helping
him. This is quite understandable given their own emotional distress.
They were anxious that I did not waste valuable time with them, rather
that I needed to get on with helping him. Even with the help of an interpreter
it was difficult to convey to them the nature of the help he needs and
the fact that there is nothing that will bring results immediately.

In reporting a meeting
with Shayan held 30 November 2001, Dr Field noted that Shayan was:

showing hopeful
signs of resilience when given the chance to be in a normalising environment
eg with the foster family and at school. It confirms the impressions
of his teachers - that he responds well to being allowed to be a child
again when away from the enormous pressures facing his family regarding
their future. This is not to underestimate the enormous emotional impact
on him of the last 18 months. It confirms the importance for him of
a stable and secure family setting which the foster family is doing
their best to provide.

In reporting meetings
held with members of Shayan's foster family on 4 and 5 December 2001,
Dr Field reported further difficulties being experienced in relation to
the foster arrangements. Shayan's foster father and sister were, however,
reported to be adamant about wanting to continue the foster arrangement.

9.25 End of foster
arrangements and grant of bridging visas to Mrs Badraie, Shayan and Shabnam

On 8 January 2002,
DIMIA was advised that foster care could no longer be provided by Shayan's
foster family.

On 16 January 2002,
the Minister exercised his powers under section 417(1) to grant BVs to
Shayan, Mrs Badraie and Shayan's sister Shabnam. DIMIA further arranged
for the Supreme Islamic Council of New South Wales to provide community
support for Shayan, Shabnam and Mrs Badraie.

9.26 Full Federal
Court decision

On 8 April 2002,
the Full Federal Court overturned Stone J's decision and remitted the
matter to the RRT. [13]

9.27 Further RRT
decision

Finally, for the
sake of completeness, it has come to my attention that, upon their matters
being remitted to the RRT, the Badraie family were granted temporary protection
visas [14]. Neither party has made submissions regarding
that issue and I do not consider it further.

10.
Elements of the inquiry

One of the functions
conferred on the Commission is to inquire into any act or practice that
may be inconsistent with or contrary to human rights (section 11(1)(f)
of the HREOC Act). In deciding whether the matters complained of fall
within the terms of section 11(1)(f) of the HREOC Act, I must consider
two main issues:

  • whether there
    is an act or practice under the HREOC Act; and if so
  • whether the act
    or practice is inconsistent with or contrary to any human right under
    the HREOC Act.

11.
Whether there is an act or practice

11.1 Introduction

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.

It is important to
note that the Commission's human rights complaints jurisdiction under
section 11(1)(f) of the HREOC Act is limited to discretionary acts and
practices of the Commonwealth. When an act or practice is truly within
the discretion of the Commonwealth and its officers, then that act or
practice is properly subject to the Commission's complaints jurisdiction.
When an action of the Commonwealth or its officers is required by the
Migration Act and involves no discretion, that action is outside the scope
of the Commission's human rights complaints jurisdiction [15]
.

The respondent has,
in its response to my Preliminary Findings, stated at more than one point,
that detention of an "unlawful non-citizen" (as defined in the
Migration Act) is mandatory until that person is removed from Australia,
deported or granted a visa [16]. This follows from the
combined operation of sections 189 and 196 of the Migration Act, which
provisions, as the respondent notes, apply equally to children and adults
[17].

However, as noted
in my Preliminary Findings, there remain significant areas of discretion
which are within the Commission's complaints jurisdiction. I have briefly
described those areas of discretion below.

11.2 Conditions
of detention

Section 273 of the
Migration Act provides that the Minister may, on behalf of the Commonwealth,
cause immigration detention centres to be established and maintained.

Section 273 further
provides that regulations may be made in relation to the "operation
and regulation" of detention centres. That power to make delegated
legislation has not been used to comprehensively provide for such matters.
As a result, the respondent retains a significant degree of discretion
in relation to the conditions of detention within detention centres and
the manner in which people are treated whilst detained.

Shayan's conditions
of detention and treatment at Woomera and Villawood thus involve discretionary
acts or practices of (or on behalf of) the respondent, that can be inquired
into by the Commission.

11.3 Section 5
of the Migration Act

As I noted in my
Preliminary Findings, whilst detention may be mandatory (until deportation,
removal or the grant of a visa), the Minister retains considerable discretion
as to the place of detention. In particular, there is no requirement
that a person be detained in a detention centre established under section
273 of the Migration Act. Rather, by section 5 (reproduced above), the
Minister may give written approval for a person to be detained:

"in another
place".

This conferred upon
the Minister the discretionary power to determine, at any time during
Shayan's detention, that Shayan and his family should be detained in a
place other than a detention centre. For example, the Minister could have
determined that Shayan and his family be detained in a dwelling in the
Australian community. As I noted in my Preliminary Findings, the respondent
has previously used the discretionary power conferred by section 5 to
provide accommodation in the Woomera township for women and children as
a pilot scheme. Indeed, that power was used here to allow Shayan to be
placed in the foster arrangement .[18]

The Commission has
jurisidiction to consider whether the respondent's failure to use the
discretion conferred by that provision more expeditiously and in respect
of Shayan's entire family involved acts or practices that were inconsistent
with or contrary to Shayan's human rights.

11.4 Section 417
of the Migration Act

A further area of
discretion arises by reason of section 417 of the Migration Act (partially
reproduced above). That provision enables the Minister to substitute a
"more favourable decision" for a decision of the RRT, if the
Minister thinks it is in the public interest to do so.

As noted above, this
means that, from the RRT decision of 9 March 2001, the Minister had the
discretion to grant BVs or PVs to Shayan and the other members of his
family. Indeed, that is what the Minister ultimately did on 16 January
2002 (almost 12 months after the time he first became empowered to do
so).

It is clear, from
the extract of MSI 225 reproduced above, that the Minister does not feel
himself bound to wait upon a request from the relevant applicant to exercise
the powers conferred by section 417. Rather, he has put in place a mechanism
whereby, upon being notified of an RRT decision that is not the most favourable
to the applicant and which falls within the ambit of the MSI 225 guidelines,
the relevant case officer is to bring that case to the Minister's attention.
As I have observed in my findings of fact, it does not appear that this
matter was brought to the Minister's attention until the memorandum of
7 June 2001 (which appears to have been prompted by the letter the Badraie
family's representative wrote to the Minister on 24 May 2001 and the subsequent
letters written by Drs Dossetor and Zwi).

The respondent has
made submissions regarding the fact that under section 417(7) of the Migration
Act, the Minister does not have a duty to consider whether to exercise
the power under section 417(1). It is unclear whether those submissions
were directed to the question of whether there is a relevant act or practice
into which the Commission may inquire. If it is suggested that there was
no such act or practice, then those submissions are at odds with Burgess'
Case
[19]. In that case, the applicant submitted,
inter alia, that a decision not to exercise a statutory discretion (which
the relevant decision maker was similarly under no duty to exercise) was
not an act or practice for the purposes of the HREOC Act. Branson J rejected
that submission. [20]

I similarly reject
any such submission advanced here.

I should, however,
refer to another aspect of her Honour's decision which, although not cited
by the parties, is relevant to this complaint.

Burgess' Case
involved an age discrimination complaint into which the Commission inquired
under section 31(b) of the HREOC Act. The complainant was a public servant
who was compulsorily retired by reason of the operation of section 76V(1)
of the Public Service Act 1922 (Cth) (the "PSA"). Like
sections 189 and 196 of the Migration Act, that provision was mandatory
in its terms and therefore did not give rise to any relevant act or practice
into which the Commission could inquire. However, section 76V(2) of the
PSA gave the relevant Departmental Secretary the power to determine (if
satisfied that it was in the interests of the Commonwealth to do so) that
section 76V(1) did not apply to a particular Commonwealth officer.

The Commission inquired
into the non-exercise of that discretion as an act or practice. The Commission
found that the threshold test for the exercise of the discretion applied
by the relevant Secretary (which was that the work of the officer was
of such an "essential" nature that the Department would have
difficulty functioning without them) imposed a "considerable burden
on employees over the age of 65 years of age, a burden which would not
apply to employees under the age of 65".

Branson J found that
the Commission had failed to properly construe section 76V(2), in that:

  • the intention
    of Parliament, as disclosed by section 76V(1), was that in the ordinary
    course officers of the Australian public service would be retired upon
    reaching the maximum retirement age; and
  • it would not be
    a lawful exercise of the discretionary powers conferred by section 76V(2)
    to use those powers for the purpose of undermining that intention.

Her Honour further
found that that failure led the Commission into error, stating (at 216):

HREOC concluded
that the test utilised by the Secretary in deciding whether or not to
make a determination that s 76V(1) would not apply to the complainants
imposed "a considerable burden on employees who are over 65 years
of age, a burden which does not apply to employees under the age of
65" and was a test "not applied to employees or prospective
employees in other age groups". So much may be accepted. However,
neither employees under the age of 65 years nor prospective employees
of any age require a determination pursuant to s 76V(2) to allow them
to continue in employment within the Australian Public Service after
they attain the maximum retiring age. In reaching a conclusion as to
whether any of the acts of the Secretary in failing in respect of each
of the complainants to make determinations under s 76V(2) of the Public
Service Act constituted a distinction or exclusion on the basis of age,
it was not open to HREOC to find such distinction or exclusion by comparing
the positions of the complainants with the positions of persons in respect
of whom s 76V(2) has no relevant operation.

It is implicit in
her Honour's judgment that the approach to the exercise of the discretion
that would have been required of a Secretary acting in accordance with
the Commission's decision (which essentially entailed equality of treatment)
would have undermined the intention of Parliament's intention in enacting
section 76V(1). Such an approach would be unlawful as it would involve
an improper purpose.

I have been mindful
of her Honour's judgment in my findings regarding section 417 (see further
below). I should say at this stage that there are some important differences
between the PSA and the provisions of the Migration Act I am considering
for the purposes of this complaint. In particular, section 417 seems intended
by Parliament to allow the Minister to avoid breaches of human rights.
Indeed, this is apparent from the Minister's own guidelines regarding
that provision, as set out in MSI 225. In contrast, section 76V(2) of
the PSA was clearly not intended by Parliament to avoid the effects of
age discrimination, which was effectively mandated by section 76V(1).

11.5 Bridging
Visa

I note that it appears
to have been assumed by the respondent and the Commission that all members
of the Badraie family may, at various relevant times, have been eligible
for BVs by reason of their being "eligible non-citizens" under
sub-regulation 2.20(9) of the Migration Regulations [21].
That provision relates to special need based on health or previous experience
of torture or trauma.

The failure to grant
such a visa is an act or practice into which I may inquire.

However, having considered
the Migration Regulations more closely, it appears to me that only Shayan
could have been granted a BV under that provision. Clause 1305 of Schedule
1 and the provisions of subclass 051 of Schedule 2 of the Migration Regulations
do not appear to provide for such visas to be granted to the family members
of a person with special health needs. I have therefore not considered
that matter further for the purposes of this report.

Although this is
not an examination of an enactment under section 11(1)(e) of the HREOC
Act, I should say that those provisions, which appear to contemplate the
separation of seriously ill detainees (including young children) from
those most likely to be able to provide support and care, give me some
cause for concern.

11.6 Acts or practices
of other persons

Finally, the respondent
has made certain comments regarding the obligations or responsibilities
of parents. The respondent has drawn my attention to article 5 of CROC,
which provides:

States Parties
shall respect the responsibilities, rights and duties of parents or,
where applicable, the members of the extended family or community as
provided for by local custom, legal guardians or other persons legally
responsible for the child, to provide, in a manner consistent with the
evolving capacities of the child, appropriate direction and guidance
in the exercise by the child of the rights recognized in the present
Convention.

That article does
not impose duties upon parents or upon the other persons there mentioned.
An international human rights treaty cannot purport to impose, directly,
any duties upon entities other than its States parties [22].
The focus of this inquiry is whether the acts or practices of the respondent
(or those acting on its behalf) breach those obligations.

12. Human
rights under the HREOC Act

As in my Preliminary
Findings, I have found it convenient to consider whether the relevant
acts or practices breached Shayan's human rights by reference to three
separate sets of factual circumstances:

  • Shayan's experiences
    in Woomera;
  • Shayan's experiences
    at Villawood and Westmead; and
  • Shayan's foster
    placement.

13. Shayan's
experiences in Woomera

13.1 Background

In my Preliminary
Findings, I found that Shayan's detention at Woomera involved breaches
of articles 19(1) and 37(c) of CROC.

13.2 Article 19(1)
of CROC

Article 19(1) provides
that:

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

Article 19(1) requires
Australia to take positive steps to protect children from, amongst other
things, physical and mental violence. "Mental violence" includes
humiliation, harassment, verbal abuse, the effects of isolation and other
practices that cause or may result in psychological harm .[23]

The phrase "while
in the care of parent(s), legal guardian(s)" indicates that the primary
focus of the article is "intra-familial" situations. However,
the phrase "any other person who has the care of the child"
appears to broaden the application of the article to cover personnel of
institutions responsible for the care or protection of children. [24]

Article 19(2) provides
some elucidation of the protective measures required by article 19(1):

Such protective
measures should, as appropriate, include effective procedures for the
establishment of social programmes to provide necessary support for
the child and for those who have the care of the child, as well as for
other forms of prevention and for identification, reporting, referral,
investigation, treatment and follow-up of instances of child maltreatment
described heretofore, and, as appropriate, for judicial involvement.

13.3 My preliminary
findings on article 19(1)

In my preliminary
findings, I found that article 19(1) was breached by reason of the following
matters:

  • Shayan witnessed
    acts of physical violence and/or was exposed to acts or practices that
    caused psychological harm so as to constitute mental violence; and
  • there was insufficient
    evidence to satisfy me that the respondent took all appropriate measures
    to prevent Shayan's exposure to that physical or mental violence [25]

I further found that
the respondent's obligations to take such measures were particularly significant
in circumstances where the respondent knew, from about July 2000, that
Shayan was distressed by reason of his experiences .[26]

13.4 The respondent's
submissions on article 19(1) and my findings

As I understand the
respondent's submissions, it seeks to advance contentions that may be
divided into three broad categories.

First, the respondent
notes that certain of my preliminary findings of fact were inaccurate.
I have discussed this above and taken the respondent's comments into account
where appropriate. While it is comforting to know that Shayan did not
witness people actually harming themselves, the threatened harm that he
did witness still falls within the wide definition of physical or mental
violence which applies to article 19(1) of CROC.

In addition, I have
found that Shayan did witness actual physical violence during the "disturbances"
or "riots" in late March, early April and late July 2000 which
led to panic attacks, withdrawn behaviour and loss of appetite.

I have also found
that he and his family were transferred to Sierra Compound, which Shayan
regarded as a place for "bad" people and where Shayan was denied
the company of other children (save for one three year old female detainee).
In my view that act, which appears to have had a detrimental psychological
effect on Shayan, comes within the broad definition of mental violence
discussed above. Moreover, Shayan witnessed a confrontation between his
father and ACM staff during the transfer of the family to the Sierra compound.

The respondent further
contends that it did in fact take the preventive measures required by
article 19(1):

The Department
has put in place appropriate legislative, administrative, social and
educational measures for the protection of children in detention as
required by this Article. The Department's contract with its detention
services provider requires the provision of food, shelter, clothing,
bedding, health including mental health services, educational services
and recreational activities for all detainees including children.

The Immigration
Detention Standards, developed in consultation with the Commonwealth
Ombudsman's office, have established standards of care and services
expected of the contractor. DIMIA monitors performance under the contract
on an ongoing basis and there are financial sanctions which are available
for non-compliance.

DIMIA also requires
that all staff working in detention centres comply with the relevant
state or territory legislation on child neglect or abuse, including
sexual abuse. DIMIA reviews the services provider's training programs
to ensure that these cover the requirements of such state legislation
particularly the reporting of suspicions or allegations of neglect or
abuse. Procedures are in place to ensure that state agencies are called
in to provide expert advice including on the psychological health and
best interests of a child where there are concerns…

The Department
and ACM staff at centres make every effort to prevent undesirable and
harmful actions occurring and to ensure that detainee children are not
exposed to them. Families and children are normally accommodated in
a separate part of the detention centre away from single adult males
and detention staff closely monitor children, particularly unaccompanied
minors. [27]

While it may be the
case that the respondent and ACM put such measures in place, I find that
those measures consistently failed to protect Shayan from the harm described
above with very unfortunate ramifications.

In part, this seems
to reflect shortcomings in the internal processes in place at Woomera.
By way of example, the decision to transfer the Badraie family to Sierra
compound, in circumstances where Shayan was known to be experiencing distress
by reason of the detention environment, was apparently taken without consulting
appropriate experts (see Mr Lynch's memorandum of 21 January 2001).

More fundamentally,
the respondent was simply incapable of protecting Shayan from the types
of maltreatment covered by article 19(1) of CROC under the management
regime that then existed at Woomera. The respondent could, if it had chosen
to, have avoided that maltreatment via the following alternatives:

  • the approval of
    an alternative place of detention for Shayan's family; or
  • the family could
    have been expeditiously transferred to another facility, less prone
    to "disturbances".

While the respondent
deserves some credit for ultimately undertaking the second measure, it
should have been implemented considerably earlier. That is particularly
so given the respondent's knowledge (from July 2000) of Shayan's distress
arising from the conditions at Woomera and the fact that, at some point
prior to 3 January 2001, Shayan was diagnosed with PTSD.

In my view, those
were appropriate administrative measures, which the respondent was obliged
to pursue by virtue of article 19(1). Its failure to do so expeditiously,
in the circumstances of this case, necessarily involves a breach of that
article.

The respondent's
third contention is as follows:

…..the Department
is not responsible for the actions of detainees, including parents,
which children may find distressing. As the primary care givers, parents
of detainee children also have a responsibility to try and keep their
children from witnessing such behaviour by other detainees.

As I have stated
above, CROC does not impose obligations upon parents. An international
human rights treaty cannot purport to impose, directly, any duties upon
entities other than its States parties [28]. Moreover,
article 19(1) expressly provides that Australia is obliged to provide
certain protective measures in respect of "intra-familial" situations.
That is the obligation I am concerned with here, which I consider to have
been breached for the reasons outlined above. Vaguely put assertions regarding
the conduct of other persons are simply irrelevant.

13.5 Article 37(c)
of CROC

Article 37(c) requires
States Parties to ensure that:

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

This provision stresses
that children deprived of their liberty should not lose their fundamental
rights and that their treatment must take account of their age and child
development.

The United Nations
Committee on the Rights of the Child (the "CRC") [29]
has indicated that the detailed standards set out in the United Nations
Standard Minimum Rules for the Administration of Juvenile Justice
[30]
(the "Beijing Rules") and the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty
[31]
(the UN Rules") are relevant to the interpretation of article
37 [32] . Indeed, the travaux préparatoires indicate
that article 37(c) was based upon aspects of those standards. [33]

Amongst other things,
those standards stress:

  • the importance
    of considering alternatives to detention in an institution ;[34]
  • the need to ensure
    that the conditions of detention and care promote, sustain and protect
    the health of child detainees (including mental health) ;[35]
  • the need to ensure
    adequate medical care (both preventative and remedial) and to ensure
    immediate access to adequate medical facilities [36];
    and
  • the importance
    of providing appropriate educational and leisure opportunities and providing
    an environment where child detainees may associate with other children
    their age. [37]

Article 37(c) was
also based upon the terms of article 10(1) of the International Covenant
on Civil and Political Rights
(the "ICCPR"). The jurisprudence
of the United Nations Human Rights Committee ("UNHRC") [38]
regarding article 10(1) is thus also relevant to the interpretation of
article 37(c) of CROC.

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

[w]hereas article
7 primarily is directed at specific, usually violent attacks on personal
integrity, article 10 relates more to the general state of a detention
facility or some other closed institution and to the specific conditions
of detention. As a result, article 7 principally accords a claim that
State organs refrain from certain action (prohibition of mistreatment),
while article 10 also covers positive State duties to ensure certain
conduct: Regardless of economic difficulties, the State must establish
a minimum standard for humane conditions of detention (requirement of
humane treatment). In other words, it must provide detainees and prisoners
with a minimum of services to satisfy their basic needs (food, clothing,
medical care, sanitary facilities, communication, light, opportunity
to move about, privacy, etc). Finally, it is … stressed that the
requirement of humane treatment pursuant to article 10 goes beyond the
mere prohibition of inhuman treatment under article 7 with regard to
the extent of the necessary 'respect for the inherent dignity of the
human person'. [39]

Early jurisprudence
of the UNHRC indicated that detention of a person in conditions "seriously
detrimental to their health" was a breach of both articles 7 and
10(1) of the ICCPR [40]. However, it seems to be accepted
that such treatment is more appropriately regarded as a breach of article
10(1) alone .[41]

It is also clear
from UNHRC jurisprudence that the threshold for establishing a breach
of article 10(1) is lower than the threshold for establishing 'cruel,
inhuman or degrading treatment' within the meaning of article 7. [42]

Of course, article
37(1) of CROC imposes the additional requirement that child detainees
must be treated in a manner which takes into account the needs of persons
of their age. [43]

13.6 My Preliminary
Findings on article 37(c) and the Department's submissions on that issue

I made the following
Preliminary Findings regarding the manner in which Shayan's detention
at Woomera involved a breach of article 37(c):

I am of the view
that young children would generally be more affected by seeing violence
than older children and adults. I am of the preliminary view that exposing
a child of five or six to a violent situation, where guards are armed
with and use batons and the child's movements are restricted by razor
wire and wire fences, would cause distress to such a child. Article
37(c) of CROC provides that it is the right of every child deprived
of their liberty to be treated with humanity and respect for the inherent
dignity of the human person, and in a manner which takes into account
the needs of persons of their age. I am of the preliminary view that
such actions would constitute not treating the child with humanity and
respect for the inherent dignity of the child or in a manner appropriate
to his age. I am also of the preliminary view that Shayan was detained
in circumstances where he witnessed events and received treatment that
was not appropriate to his age. Further, I am also of the preliminary
view that the failure of the respondent to act promptly when it became
clear that Shayan had emotional disturbances related to his detention
would constitute a breach of article 37(c) of CROC.

DIMIA, on behalf
of the respondent, has made the following submissions on that finding:

The Department
takes its responsibility for the care of people in immigration detention,
especially children, seriously. The Department is also aware of its
responsibilities under the CROC and does its utmost to ensure that children
are treated in accordance with the provisions of the Convention. Detention
services are provided in accordance with the Immigration Detention Standards
(IDS). These standards underpin both the provision of the detention
function and the standard of care to be provided. They ensure that the
individual care needs of detainees are met

….

The Department
takes appropriate measures to ensure that children are protected from
all forms of violence, injury or abuse, neglect or maltreatment. The
Department has in place appropriate legislative, administrative, social
and educational measures for the protection of children in detention.
Staff at immigration detention facilities regularly monitor children,
particularly unaccompanied children. The Department requires that all
staff working in detention facilities comply with the relevant State
or Territory legislation on reporting of suspected child neglect or
abuse. Procedures are in place to ensure that State child welfare authorities
are called in to provide expert advice and assessments and are able
to investigate notifications made according to their legislation and
procedures.

The CROC recognises
the responsibilities, rights and duties of parents. As they do in the
Australian community, parents in detention facilities retain the primary
responsibility for ensuring the welfare of their children.

In relation to
the initial finding that the failure of the Department to act promptly
to address Shayan's mental illness constituted a breach of article 37(c)
of CROC, both Woomera IRPC and Villawood IDC provide a level of primary
health care that is broadly equivalent to the standard available to
the Australian community. This includes 24-hour access to a medical
centre and the referral to specialists where necessary.

Specifically, at
the time Shayan was detained at Woomera IRPC, one full time and one
part time Medical Practitioner (working two to three hours a day) were
available. These doctors were also on call twenty-four hours a day for
emergencies. Two psychologists were also on call 24 hours a day seven
days a week.

13.7 My findings
on article 37(c)

The respondent's
submissions do not fully address the matters raised in my Preliminary
Findings.

The respondent's
treatment of Shayan compromised his basic human needs, particularly in
terms of his mental health. It does not seem to be disputed that Shayan's
mental health was seriously detrimentally affected by his conditions of
detention. As I have noted above, early jurisprudence of the UNHRC would
support the more serious finding that such treatment constituted "torture
or other cruel, inhuman or degrading treatment" (within the meaning
of article 37(a) of CROC). However, it now appears to be accepted that
such matters are more appropriately dealt with under article 37(c).

The UN Rules, which
as noted above are relevant to the interpretation of article 37(c) of
CROC, specifically provide:

The detention of
juveniles should only take place under conditions that take full account
of their particular needs [including mental and physical health]….and
which ensure their protection from harmful influences and risk situations
(my emphasis)

While the respondent
might have made 24 hour medical care "available" to detainees,
that measure appears to have been ineffective to protect Shayan from the
risks to his mental health.

Indeed, for at least
part of the period Shayan was detained at Woomera, Mr Badraie was either
unable to take advantage of those services or only able to do so with
difficulty. Those problems apparently arose by reason of increased security
during the period of the "disturbances" or "riots".
I do not suggest that it was necessarily possible to provide those services
in those conditions. However, their unavailability supports the conclusion
that this vulnerable child should simply not have been detained where
he was. One of the two alternatives discussed above should have been implemented
at a much earlier date [44]. The respondent's failure
to remove him from that environment more expeditiously resulted in him
not being treated with humanity and respect for the dignity of the human
person and/or in a manner appropriate to his age.

Moreover, the decision
to transfer Shayan and his family to Sierra Compound (which Shayan regarded
as a punishment compound and in which there was only one other child detainee)
failed to take into account the needs of a six year old child to have
appropriate educational and/or leisure opportunities in association with
his peers. As noted above, such needs are recognised in the Beijing Rules
and UN Rules. In those circumstances, I am of the view that the act of
transferring Shayan to Sierra Compound constituted a further breach of
article 37(c) of CROC, in that it involved the treatment of Shayan in
a manner that failed to take account of the needs of a person of his age.

14.
Shayan's detention at Villawood

14.1 Background

In my Preliminary
Findings, I found that Shayan's detention at Villawood involved breaches
of articles 3(1), 37(b) and 37(c) of CROC.

14.2 Article 3(1)
of CROC

Article 3(1) of CROC
provides:

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

The obligation that
the best interests of the child be given "primary consideration"
is a fundamental principle reflected in the various provisions of CROC.
[45]

The obligation expressly
covers all actions concerning children, including "decisions by courts
of law, administrative authorities, legislative bodies and both public
and private social-welfare institutions". In Minister of State
for Immigration and Ethnic Affairs v Ah Hin Teoh
[46]
a majority in the High Court rejected the argument that the provisions
of article 3 were intended to apply only to "actions" that were
directed at children and not those that merely have consequences for children
[47]. Their Honours stated that the objects of the CROC
will best be achieved by giving the word "concerning" a wide-ranging
application.

Article 3(1) does
not require the best interests of the child to be the sole consideration
in all decision-making. In Teoh, Mason CJ and Deane J noted:

The article is
careful to avoid putting the best interests of the child as the primary
consideration; it does no more than give those interests first importance
along with other considerations as may, in the circumstances of a given
case, require equal, but not paramount, weight. [48]

Later, their Honours
stated:

A decision-maker
with an eye to the principle enshrined in the Convention would be looking
to the best interests of the children as a primary consideration, asking
whether the force of any other consideration outweighed it. [49]

This is consistent
with the view UNICEF has taken of the article [50].
UNICEF has also stated that the article requires the child's interests
to be the subject of active consideration. [51]

The "best interests"
principle can mean that in certain circumstances, such as abuse or exploitation,
the "best interests" of children requires that they be separated
from their parents. Usually, however, it means that their right to "grow
up in a family environment, in an atmosphere of happiness, love and understanding"
should [52] be respected, as is emphasised throughout
CROC.

The CRC has indicated
that article 3 has application to the development and implementation of
policies. In its Concluding Comments on the Initial Report of Nigeria,
the CRC stated:

In light of the
provisions of article 3 of the Convention, the Committee is of the view
that the Government has not yet fully developed a procedure to ensure
that the 'best interests of the child' guide the decision making process.
Considerations of the impact of various policy options on the enjoyment
of the rights of the child should form an active part of this process.
[53]

The CRC has also
paid increasing attention to the best interests principle in the area
of budgetary allocation [54]. In its Concluding Observations
on the Initial Report of Columbia, the CRC stated:

The Committee recommends
that the State Party, in light of articles 3 and 4 of the Convention,
undertake all appropriate measures to the maximum extent of the available
resources to ensure that sufficient budgetary allocation is provided
to services for children, particularly in the areas of education and
health, and that particular attention is paid to the protection of the
rights of children belonging to vulnerable groups. [55]

14.3 Article 37(b)
of CROC

Article 37(b) of
CROC provides:

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

There are a number
of elements to this article:

  • the detention
    of a child must be in conformity with law;
  • the detention
    of a child must not be arbitrary (this is a distinct requirement, in
    addition to the requirement of lawfulness);
  • the detention
    of a child must be used only as a measure of last resort; and
  • the detention
    of a child must be for the shortest appropriate time.

Again, the CRC regards
the UN and Beijing Rules as relevant to the interpretation of article
37(b), which is appropriate given that article 37(b) was based upon aspects
of those standards [56]. In that context, it is relevant
to note that the UN Rules state that detention "should be used as
a last resort" and "be limited to exceptional cases" [57]
and that the Beijing Rules reiterate that any detention should be brief
[58] and state this should only occur where the child
has committed "a serious act involving violence" .[59]

The travaux préparatoires
to CROC indicate that article 37(b) was also based upon the similarly
worded article 9(1) of the ICCPR. As such, it is relevant to consider
the jurisprudence of the UNHRC regarding that provision. In Van Alphen
v The Netherlands
[60] , the UNHRC discussed the
meaning of arbitrariness in the context of article 9(1), stating:

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

In A v Australia,
the Human Rights Committee stated that detention was arbitrary if it was
"not necessary in all the circumstances of the case" and if
it was not a proportionate means to achieving a legitimate aim .[61]

I note that the respondent
appears to accept that the element of "arbitrariness" in article
37(b) is to be construed in the manner discussed by the UNHRC in relation
to article 9(1) of the ICCPR. In its submissions in response to my Preliminary
Findings, DIMIA (on behalf of the respondent) stated:

The Department
has received legal advice from the Office of International Law, at the
Attorney General's Department, which indicates that 'arbitrary' must
be interpreted as including elements of inappropriateness, injustice,
lack of predictability and unproportionality.

14.4 Article 37(c)
of CROC

I have discussed
article 37(c) of CROC in section 13.3 above in connection with my findings
regarding Shayan's detention at Woomera.

14.5 My Preliminary
Findings on articles 3(1), 37(b) and 37(c) of CROC

In my Preliminary
Findings, I found that the circumstances of Shayan's detention at Villawood
involved breaches of articles 3(1), 37(b) and 37(c) of CROC:

I consider that
the Department and the Minister had alternatives to continuing Shayan's
detention at Villawood but did not provide them. Shayan and his family,
or Shayan alone, could have been released on BVs, or there could have
been set up an alternate place of detention for the family. I am of
the preliminary view that the failure of the Department and the Minister
to remove Shayan from detention at Villawood, despite strong medical
advice, was inconsistent with or contrary to Shayan's human rights under
articles 3(1), 37 (b) and 37(c) of CROC.

14.6 The respondent's
submissions on articles 3(1), 37(b) and 37(c) of CROC

In response to my
Preliminary Findings the respondent has made a number of submissions.

Family unity

First, the respondent
notes that it was in Shayan's best interests to remain with his family:

The Department
maintains that in all but a limited number of cases it is likely to
be in the best interests of the child to remain with their family members
in detention rather than being separated from them in alternate arrangements.
Shayan was therefore detained with his parents as at the time it was
considered that this was in keeping with his best interests. DIMIA maintains
that throughout Shayan's detention his interests have been a primary
consideration.

To similar effect
it was later said:

….the Department
maintains that in most circumstances the best interests of the child
are served by remaining with the family unit in detention rather than
being separated from them in alternate arrangements. Shayan was only
placed in foster care separation from his family with the consent of
his father when it was assessed that this approach was in his best interest.

Those submissions
appear to overlook the option of releasing all members of the Badraie
family
under section 417 or using section 5 of the Migration Act to
approve another place of detention for the whole family.

It will be recalled
that in the memorandum to the Minister of 7 June 2001, Ms or Mr Johnson
advised the Minister that there was no legal impediment to using the powers
conferred by section 417 to grant visas to all members of the Badraie
family.

Similarly, in his
facsimile to Mr Fabreschi of 31 May 2001, Mr Efrem contemplated that an
alternative place of detention would be used in respect of the "whole
family".

Factual chronology

The respondent also
appears to assert that I should reconsider the above Preliminary Findings
in light of the facts of the matter, which the respondent describes in
the following terms:

Notwithstanding
the best interest (sic) of the child to normally reside with the family
unit, the Department gave serious consideration to medical reports received
during Shayan's detention. During the five and a half months Shayan
was detained at Villawood IDC, six medical reports were presented raising
concerns in relation to the impact of the detention environment on Shayan's
condition.

On 10 May 2001
Doctor Karen Zwi, Marymead Children's Hospital diagnosed Shayan with
Post Traumatic Stress Disorder. She attributed his symptoms to environmental
stress at Villawood IDC. Her recommendations included options to manage
Shayan's condition within and outside a detention environment.

On 28 May 2001
ACM Psychologist Dr Nair stated:

"It was thought
that the Department of Community Services (DoCS), should be contacted
and to explore the possibility of placing the boy under their care.
At present it is obvious that even if DoCS were to assess the boy it
is not possible to separate the boy from the parents because of the
emotional dependency".

In June 2001, in
light of Shayan's ongoing health problems DIMIA and ACM commenced consultations
with DoCS. At the time DoCS was of the opinion Shayan was not at risk
and therefore they were not prepared to intervene. In July 2001, following
the deterioration of Shayan's health, it was agreed that under the circumstances,
Shayan's placement with a foster family was the most appropriate course
of action.

On 20 July 2001
and after three admissions to Westmead Children's Hospital, approval
was sought and obtained from Shayan's parents to have him placed in
the care of DOCS with a suitable foster family. Shayan's father withdrew
this approval when he was advised the potential family was of Palestinian
background. He also stated Shayan's reluctance to be separated from
his family was a major factor in this decision.

The Department
subsequently conducted further consultations with DoCS and Shayan's
father, who was requested to provide the details of a family he would
find acceptable to care for Shayan under foster arrangements. Mr Badraie
provided this information to DOCS who conducted a preliminary assessment
of an Iranian family. On 21 August 2001, DOCS advised that this family
would be suitable for this purpose.

As a result Shayan
was placed in foster care on 23 August 2001. [62]

I have set out my
findings of fact in detail above and need not reiterate them here. There
are, however, a number of matters which require emphasis or clarification
in light of the respondent's submissions.

As a preliminary
matter, although this is a relatively minor point, there were in fact
eight reports or letters written regarding Shayan's conditions by various
health professionals (the respondent appears to have overlooked Dr Hannan's
report of 28 March 2001 and Dr Nair's report of 15 May 2001, both of which
were referred to and quoted in the memorandum to the Minister of 7 June
2001).

The diagnosis of
PTSD on 10 May 2001 by Dr Zwi (which was in fact a joint report which
Dr Zwi prepared in conjunction with Dr Herzberg and Ms Lee) was not the
first time the respondent was made aware that detention was having adverse
effects on Shayan's mental health.

I have found that
the respondent was aware since July 2000 that Shayan was experiencing
distress in the detention environment. I have further found that Shayan
had already been diagnosed as having PTSD some time prior to the RRT hearing
of 3 January 2001.

Moreover, in his
report of 28 March 2001, Dr Hannan suggested that Shayan was at risk of
developing a prolonged stress syndrome while he remained in a detention
centre. After Dr Hannan prepared his report, Shayan witnessed the aftermath
of the self harm incident of 30 April 2001 and his mental health further
deteriorated.

The significance
of the respondent's references to the reports of Drs Nair and Zwi was
made more explicit in its submissions on the findings of fact in my Preliminary
Findings, where the respondent stated:

Not all of the
reports state Shayan should be removed from the detention environment.

In the report dated
10 May 2001 from Westmead Hospital the recommendations from the doctor
state Shayan should remain with his family and that he would benefit
from a more "normal" living environment and continuing to
live together with his family.

It is further stated
in the report by ACM Psychologist Dr Nair at Villawood IDC on 28 May
2001 that:

"Also the
boy has extreme emotional dependency needs with his parents especially
his father...At present it is obvious that even if DOCS (Department
of Community Services) were to assess the boy it is not possible to
separate the boy from the parents because of the emotional dependency"

The report of Drs
Zwi and Herzberg and Ms Lee was based upon their observations and treatment
of Shayan during his first admission to Westmead from 3 May to 9 May 2001.
As the respondent notes, their report included recommendations which appeared
to envisage that Shayan's PTSD might be managed either within or outside
the detention centre environment. However, it should have been apparent
to the respondent, from the following parts of those recommendations,
that the preferred option advanced by Drs Zwi and Herzberg and Ms Lee
was for Shayan to be managed outside the detention centre:

[Shayan] retains
his chronic symptoms and he is at high risk of an acute recurrence in
his symptoms unless the environmental circumstances change. In order
for full recovery to occur Shayan would benefit from a more 'normal'
living environment; and continuing to live together with his family…..

If he is to remain
in the detention centre, a consistent peer group may enhance his sense
of stability and a school where he has access to a stable peer group
may be helpful. He should be protected as far as possible from the witnessing
of further traumatic events. (my emphasis)

If the respondent
had any doubts regarding that matter, they would have (or should have)
dissipated approximately one week later when Dr Zwi joined with Dr Dossetor
in writing to Dr Greenwood (who, it will be recalled, was a medical officer
at Villawood) on 18 May 2001 after Shayan's readmission to Westmead on
15 May 2001. That letter quite clearly recommended that Shayan not be
returned to Villawood.

As to Dr Nair's letter
of 28 May 2001, it will be apparent from my findings of fact above that,
having discounted the possibility of intervention by DOCS, Dr Nair went
on to state:

The most pertinent
aspect is that during the developmental stage of the personality in
the boy a chronic emotional disorder can have extreme consequences in
his growth process. The disorders he can develop can range from personality
disorders to chronic mental illnesses.

As such alternate
modes of detention where the boy can feel secure and emotionally safe
has (sic) to be thought of.
(my emphasis)

The respondent also
appears to have overlooked Dr Nair's earlier report of 15 May 2001, in
which Dr Nair stated:

the main reasons
for the symptoms are the fences, the barbed wire and the uniforms of
the detention officers. These are reflected quite clearly through the
drawings he did with me as part of the therapeutic techniques used….

The main concerns
are the severity of the symptoms and the young age of the boy. After
many attempts it is clear that to alleviate the symptoms within the
facility will almost not be possible
as the boy has a severe difficulty
in the issue of trust. (my emphasis)

In summary, Drs Zwi,
Dossetor, Herzberg, Nair and Greenwood and Ms Lee all prepared reports
expressly or impliedly recomending alternatives to (or alternative forms
of) detention. Such a recommendation is also implicit in the extract of
the report of Dr Hannan.

The respondent did
not entirely ignore the recommendations of those seven health care professionals.
As noted in my findings of fact, on 31 May 2001 Mr Efram of DIMIA wrote
to Mr Fabreschi of ACM on an urgent basis asking for Mr Fabreschi's views
as to "how the whole family could be managed by ACM outside the VIDC".
Mr Efram appears to have had in mind the use of an alternative place of
detention, approved under section 5 of the Migration Act.

The respondent has
not sought to explain Mr Fabreschi's response to the effect that ACM had
"no facilities to manage this family outside the centre". In
particular, the respondent has not explained why such facilities were
not at that time in place or why they were not then immediately put in
place.

The respondent has
similarly not sought to explain why it was apparently content for Shayan
to remain in hospital for approximately two months (from 15 May 2001 until
12 July 2001) in the circumstances described by Drs Zwi and Dossetor in
their letter to the Minister of 31 May 2001 and again by Dr Dossetor in
his letter to the New South Wales Minister of Health of 14 August 2001.
It was there made clear that Shayan was not being kept in Westmead during
that period for medical treatment, but simply as a means of avoiding re-traumatising
him at Villawood. In other words, the hospital was used as a substitute
detention centre. As Drs Zwi and Dossetor made clear to the Minister,
it is inappropriate for a child of Shayan's age to remain indefinitely
in a tertiary hospital setting.

The respondent has
not suggested that the use of an alternative place of detention or the
exercise of the discretion conferred by section 417 would have been subject
to the same delays or difficulties experienced in attempting to secure
a foster placement for Shayan. Indeed, when the Minister did ultimately
exercise his powers under section 417 in January 2002, he did so in just
over one week and (according the respondent) secured the assistance of
the Supreme Islamic Council of New South Wales to provide support to the
family.

Section 417

The respondent further
appears to contend that a failure on the part of the Minister to exercise
his powers under section 417 of the Migration Act cannot give rise to
any breach of human rights. That submission is put as follows:

Under section 417
of the Act the Minister has the power but not the duty to consider whether
to exercise that power or to actually exercise the power, to substitute
a more favourable decision for a decision of the RRT if the Minister
thinks it is in the public interest to do so.

As stated in the
Act:

"The Minister
does not have a duty to consider whether to exercise this power under
subsection (1) in respect of any decision, whether he or she is requested
to do so by an applicant or by any other person, or in any other circumstances".

The non-consideration
by the Minister of the exercise of the power available to him under
section 417 of the Act does not of itself make continued detention arbitrary.

To argue the contrary
is to misconstrue the power available to the Minister. There is no case
law in Australia to suggest that the non-consideration by the Minister
of use of the non-compellable power is an event which in any way could
make continued detention arbitrary. In fact relevant Australian authority
(Bedlington & Anor v Chong (1988)) in the consideration of
other non-compellable powers available to the Minister in the Act underlines
the fact that the Minister is under no legal obligation to consider
the exercise of the power or to actually exercise the power.

The basis for that
submission is not entirely clear. If it is suggested that there is no
relevant act or practice in the case of a failure to exercise a non-compellable
discretion, then that submission must be rejected for the reasons outlined
in section 11.7 above.

Alternatively, it
may be that the respondent seeks to suggest that if there is no avenue
for legal redress available to the detainee, detention is not arbitrary
within the meaning of article 37(b) of CROC. If so, the respondent has
mistakenly equated "lawfulness" with absence of arbitrariness.
As noted above (and as the respondent appears to accept) arbitrariness
requires a broader consideration of elements of inappropriateness and
injustice (which I consider further below).

The interpretation
of article 37(b)

Finally, I note that
the respondent has made some the following submissions regarding the interpretation
of article 37(b):

The Department
has received legal advice from the Office of International Law, at the
Attorney General's Department, which indicates that 'arbitrary' must
be interpreted as including elements of inappropriateness, injustice,
lack of predictability and unproportionality. International law authorities
are not settled on the issue of what degree of unpredictability or unproportionality
is required for detention to be considered arbitrary. The authorities
do suggest, however, that in order for detention to be so manifestly
unpredictable as to be arbitrary, the period of detention must be undetermined.
An indefinite period of detention refers to something more than that
the exact period of detention is not prescribed by law. Detention will
be indefinite where there is no legal basis for the detention, or where
the power to release is not triggered by a specified decision or event.

In so far as a
power to detain an unlawful non-citizen is limited to "what is
reasonably necessary to effect removal or to enable an application for
entry to be made and determined, the power will not be considered punitive"
- Chu Kheng Lim v Minister of Immigration, Local Government and Ethnic
Affairs
(1992) 176 CLR 1. In the Lim case the High Court characterised
the detention of unlawful non-citizens as administrative detention as
opposed to punitive detention and therefore within the power of the
Executive as long as it was for the purpose of deportation or determining
an application for legal entry.

It is unclear to
me how those submissions relate to this inquiry.

Lim relates to
the constitutional limits on the power to detain an alien. In other
words it relates to lawfulness of detention. I did not suggest in my
Preliminary Findings that Shayan's detention was unlawful so as to be
in breach of article 37(b).

14.7 My findings
on articles 3(1), 37(b) and 37(c) of CROC

Article 3(1)

On the basis of the
material provided to the Commission by the respondent, I find that the
respondent did not give active consideration to Shayan's best interests
as a primary consideration as required by article 3 of CROC.

The respondent was
aware, even prior to Shayan's first hospitalisation of 3 May 2001, that
Shayan was a vulnerable child whose mental health had been harmed by being
in detention and that he had been diagnosed as having PTSD. Yet, it does
not appear that the relevant Departmental case officer attempted to draw
Shayan's case to the Minister's attention (in the manner provided for
by paragraph 6.2 of MSI 225) prior to the memorandum of 7 June 2001. At
the very least, I would have expected the case to be drawn to the attention
of the Minister under those provisions of the MSI very shortly after Shayan's
first admission to Westmead. The respondent has not sought to explain
the delay to the Commission. In the circumstances, there was a period
where very little, if any, consideration was given to whether it was in
Shayan's best interests to remain in detention. That omission necessarily
involves a finding of a breach of article 3.

This seems to me
to reflect the fact that the respondent's policies or procedures have
not been appropriately considered in light of the best interests principle.
In particular, MSI 225 might have been more clearly worded to require
that the Minister's attention be drawn to an unfavourable RRT decision
affecting vulnerable children as soon as practicable after that decision.
I have made recommendations as to the amendment of MSI 225 below.

On the evidence before
me, it appears that the question of whether it was in Shayan's best interests
to remain in Villawood was not considered by the respondent at all until
31 May 2001 (being the date of Mr Efrem's facsimile to Mr Fabreschi).
The exchange between Messrs Efram and Fabreschi does not satisfy me that,
in considering the possible use of section 5 of the Migration Act, the
respondent's decision makers identified (as required by Mason CJ and Deane
J in Teoh) Shayan's best interests as a primary consideration and
then asked whether the force of any other consideration outweighed it.

At that time, the
respondent had before it the opinions of seven health care professionals
indicating that Shayan should not be returned to Villawood. In other words,
the respondent had before it material indicating that it would be in Shayan's
best interests that the respondent use such means as were available to
it, including section 5 of the Migration Act, to remove Shayan from detention.
Instead of adopting the approach discussed in Teoh, the relevant decision
makers treated the option of alternative detention as foreclosed by reason
of their understanding that ACM did not have in place relevant facilities
to manage the family outside the centre. There were some obvious questions
that remained to be considered: including whether it was feasible to put
those facilities in place and if so, how long that would take. In order
to comply with its obligations under article 3, the respondent should
have weighed any such considerations against the use of alternative detention
facilities against the recommendations of the health care professionals.
There is simply no evidence that that balancing process required by article
3 took place.

More fundamentally,
Mr Fabreshchi's comments appear to reflect underlying policies and budgetary
allocations that have failed to ensure (as required by the CRC under articles
3 and 4 of CROC) that the respondent had in place:

all appropriate
measures to the maximum extent of the available resources to ensure
that sufficient budgetary allocation is provided to services for children.

I have made recommendations
for the provision of such facilities below.

The memorandum sent
to the Minister dated 7 June 2001, regarding the possible exercise of
the Minister's discretion under section 417, did mention article 3 of
CROC. Despite this, the material provided to the Commission does not indicate
that the Minister made his decision in accordance with that provision.

As I have discussed
in my preliminary findings, all of the considerations discussed in the
memorandum of 7 June 2001 appeared to weigh in favour of an exercise of
the Minister's discretion. Indeed, the only factor referred to under "Other
Considerations - No Visa Grant" was the view that ACM had no plans
to "manage the family" outside Villawood. As I have explained,
this seems to me to be intended to convey a further consideration in favour
of granting a visa (in that there were considered to be obstacles to the
option of using alternative detention facilities). In those circumstances,
and in the absence of any explanation from the respondent, I cannot be
satisfied that the Minister undertook the requisite balancing process
discussed by the High Court in Teoh.

Article 37(b)
of CROC

I have decided to
reverse one aspect of my Preliminary Findings on article 37(b) of CROC
on the basis of my further consideration of Branson J's decision in Burgess.
In paragraph 15 of my Preliminary Findings, I found a breach of article
37(b) of CROC on the basis that, amongst other things, the Minister's
failure to exercise his powers under section 417 meant that Shayan's detention
was not used as a measure of last resort. Under the current regime put
in place by the Migration Act, detention is the "first resort"
for every child in Shayan's position. What my finding effectively suggested
was that the Minister should, in the case of every unfavourable decision
of the RRT, use his powers under section 417 to release families with
children. While there may be room for argument on that issue, I consider
that, if section 417 was construed so as to allow the Minister to proceed
in that fashion, it may well undermine Parliament's intention in enacting
sections 189 and 196 of the Migration Act.

Those considerations
do not apply to my other findings of breaches of article 37(b), which
dealt with two elements:

  • first, I considered
    that Shayan had not been held in detention for the shortest appropriate
    period of time;
  • second, I considered
    that Shayan's detention was "arbitrary", in the sense that
    it was inappropriate, unjust, unreasonable and disproportionate.

Neither of those
findings raise problems in terms of Burgess. Shayan's detention
ceased to be "appropriate" and became "unjust, unreasonable
and disproportionate" by reason of the particular circumstances that
arose in his case: that is, that the respondent continued the detention
of a young child who developed PTSD by reason of his conditions of detention.
Moreover, the symptoms of that serious condition were, to the respondent's
knowledge, exacerbated each time Shayan returned to the detention environment.

If the Minister were
to respond to exercise his powers in all cases involving such circumstances,
it could not be said that she or he was acting with an improper purpose.
Rather, she or he would be using the powers conferred by section 417 for
precisely the purpose Parliament intended.

Article 37(c)
of CROC

The facts surrounding
Shayan's detention at Villawood involve an even clearer breach of article
37(c) of CROC than those discussed above in relation to Woomera. Those
facts may be summarised shortly as follows:

  • The respondent
    was aware, even prior to Shayan's first hospitalisation of 3 May 2001,
    that Shayan was a vulnerable child whose mental health had been harmed
    by being in detention and that he had been diagnosed as having PTSD;
  • At all material
    times the respondent had two options which could have been put in place
    in a short period of time to avoid further exacerbating Shayan's mental
    illness: the exercise of the section 417 discretion or the use of alternative
    detention facilities approved under section 5 of the Migration Act;
  • Those options
    were urged upon the respondent by or consistent with the opinions of
    at least seven health care professionals;
  • For reasons that
    have not been adequately explained, the respondent instead chose to
    pursue a foster placement, which was complicated and delayed by negotiations
    with DOCS and with Shayan's parents (who were, entirely understandably,
    concerned as to the environment in which Shayan was to be fostered).
  • As a result,
    Shayan was transferred between Westmead and Villawood for a period of
    close to four months after his first admission to Westmead (during which
    time Westmead was effectively used by the respondent as an alternative
    place of detention for a continuous period of close to two months).
  • The respondent
    permitted that state of affairs to continue despite having been advised
    by Shayan's treating doctors that the symptoms of Shayan's PTSD recurred
    when Shayan was returned to Villawood and that Westmead was an inappropriate
    place for Shayan to stay.
  • The seriousness
    of Shayan's condition can be gauged by the fact that he continued to
    exhibit the symptoms of PTSD at least until Dr Wraith's report of 21
    November 2001. Like the other medical professionals treating Shayan,
    Dr Wraith advised the respondent that Shayan should not be returned
    to Villawood. It is regrettable that the similar advice given to the
    respondent earlier was not heeded at the time it was received.
  • A further indicator
    of the seriousness of Shayan's condition can be seen in Dr Field's notes
    of her meeting of 28 November 2001, in which she refers to Shayan requiring
    "long term help".

In those circumstances,
I find that the respondent failed to treat Shayan with humanity and respect
for the dignity of the human person and/or in a manner appropriate to
his age.

15. Shayan's
placement in foster care

15.1 Background

In my Preliminary
Findings, I found that Shayan's placement in foster care involved a breach
of article 9(1) of CROC.

15.2 Article 9(1)
of CROC

Article 9(1) provides:

States parties
shall ensure that a child shall not be separated from his or her parents
against their will, except when competent authorities subject to judicial
review determine, in accordance with applicable law and procedures that
such separation is necessary for the best interests of the child. Such
determination may be necessary in a particular case such as one involving
abuse or neglect of the child by the parents, or one where the parents
are living separately and a decision must be made as to the child's
place of residence.

The words "against
their will" refers either to the parents' will or to the parents'
and child's will together; the grammar makes clear that it does not mean
the child's will alone. [63]

The article gives
two examples of situations where it may be necessary to separate a child
from her or his parents.

The "necessity"
of separating children from imprisoned parents is less clear. UNICEF has
stated:

The imprisonment
of parents, particularly of mothers of dependent young children is deeply
problematic, because the child is being punished along with the parent.
While it is argued that the punishment of offenders always has repercussions
on innocent relatives, where young children are concerned the effects
can be particularly catastrophic to the children and costly to the State
(both immediately, in terms of providing for the children's care, and
long term, in terms of the social problems arising from early separation).
One solution is to accommodate young infants together with their mothers
in prison; the other is to find more constructive sanctions. Where
possible, the latter course should be adopted
….Although mothers
have been singled out here as being particularly crucial to the development
of young children, States should recognise that the imprisonment of
fathers can also be very detrimental, depriving children of important
role models and often causing the family to become impoverished. [64]
(my emphasis).

Of course, Shayan's
parents are (or, in the case of Ms Badraie, were) not being detained in
respect of any criminal conviction.

15.3 My Preliminary
Findings

In my Preliminary
Findings, I stated:

The issue for me
now to consider is whether the placing of Shayan in foster care was
inconsistent with or contrary to his rights under article 9(1) of CROC.Having
considered all of the evidence provided, there is no doubt that it was
better for Shayan to be in foster care than the detention environment.
The reports by Dr Wraith show that Shayan's condition did improve in
foster care and he began to recover.

However, the foster
care situation did lead to a separation of Shayan from his family, and
this was not in accordance with the advice given by the medical practitioners
who treated Shayan. Dr Dossetor stated "with regard to the opinion
of foster care…we would consider this highly inappropriate and
potentially damaging from a psychological point of view. Shayan still
displays severe anxiety symptoms with previous separations, and remains
very sensitive to separation. If foster care involves separation from
both parents, we expect this would be very traumatic for Shayan".

I have considered
the fact that Shayan was six years old when placed in foster care, a
very young age to be separated from his family with whom he had a close
bond. I have also considered the fact that DIMIA did have a discretion
to release the family on a BV under sub-regulation 2.20(9) of the Migration
Regulations from 16 August 2001 and that the Minister had a discretion
to release them from 15 May 2001 under section 417 of the Migration
Act 1958. The fact that Mrs Badraie has now been provided with a BV
to care for Shayan in a non-detention environment does seem to indicate
that there were alternatives that could have been explored earlier.
Further, as I discussed in relation to Shayan being kept in detention
at the VIDC, the Department and the Minister briefly considered whether
there were alternative places of detention where Shayan and his family
could have been accommodated, but did not act upon this. The evidence
also shows that the Minister and the Department did not act upon the
advice given by Dr Dossetor that Shayan should not be placed in foster
care. I am therefore of the preliminary view that action of the Department
and the Minister in placing Shayan in foster care is most likely inconsistent
with or contrary to his human rights under article 9(1) of CROC.

It will be clear
from my comments above that I do not now consider that the entire family
could have been released pursuant to sub-regulation 2.20(9). However,
the other two options (involving the use of the section 417 discretion
or an alternative place of detention) certainly remained available to
the respondent.

15.4 Respondent's
submissions

The respondent has
made the following submissions on this aspect of my Preliminary Findings:

Despite Dr Dossetor's
opinion of 29 June 2001 that Shayan should not be placed in foster care,
during the month of July Shayan's condition deteriorated, and he was
hospitalised several times. The Department consulted with ACM medical
personnel, DoCS and Shayan's parents on the issue of foster care, and
the decision was made to place Shayan in foster care in July 2001.

A family suitable
to DIMIA, DoCS and Shayan's parents was found, and Shayan was subsequently
placed under the care of this family with the full consent of Shayan's
parents. The Department emphasises that separation was only agreed to
after careful consideration of Shayan's interests, and full consultation
and approval for foster care by his family to the extent that it was
Shayan's father who provided details of a family he would allow to care
for Shayan. Although Shayan's foster arrangements separated him from
his parents, such actions were in accordance with applicable law and
procedures.

During the period
of foster care Shayan's parents were kept in regular and ongoing contact
with Shayan, and were involved in all substantial decision affecting
him. While under foster care doctors observed Shayan's physical and
psychological condition improve.

15.5 My findings

As I understand the
respondent's submissions, they reduce to two contentions:

  • The separation
    was not against the will of Shayan's parents; and
  • The separation
    was necessary in the circumstances.

The fact that Shayan's
father supplied the name of a foster family he would allow to care for
Shayan seems less relevant than the fact that the respondent had offered
no other option for removing Shayan from the damaging detention centre
environment. In the Current Issues Brief dated 16 August 2001, it was
stated:

DIMA staff met
with Mr Badraie on 14 August and reiterated that the only option
available
is for the family to apply for an Iranian passport and
agree to leave Australia. The family is not eligible for the grant of
bridging visas because of the refusal of their applications for protection
visas and their readiness for removal from Australia…..

….Because
of the ongoing health problem, DIMA and ACM have been assessing whether
Shayan can be adequately managed in a detention environment. The family
is not eligible for bridging visas. DIMA and ACM have been in consultation
with DOCS about the appropriate management of this child. In the circumstances,
placement outside the Centre, with an appropriate family to provide
foster care, was considered to be the appropriate course of action.
(my emphasis).

Like other human
rights instruments, the provisions of CROC are to be given a beneficial
reading. Construed in that fashion, it is my view that the term "against
their will" applies to a situation where parents are forced to choose
separation ahead of having their child remain in an environment which
is damaging to that child's physical and mental health.

As to the question
of whether separation was necessary in the best interests of the child,
I note that there was material available to the respondent which indicated
that there may have been concerns about whether his parents (particularly
Mrs Badraie) were influencing his intake of food and fluids. The respondent
has not specifically drawn my attention to Dr Greenwood's report of 7
August 2001, but I note that Dr Greenwood there indicated that he considered
that Shayan should be taken into care (this was not a view that he expressed
in his earlier report of 19 June 2001).

On the other hand,
Dr Dossetor had expressed a contrary opinion. That opinion was, moreover,
not held by Dr Dossetor alone. As was stated in the memorandum to the
Minister of 7 June 2001:

The option of placing
Shayan into foster care has been explored however is not appropriate
given the strong emotional bond that exists between him and his father.
Further, each treating psychologist has specified that Shayan needs
to remain in the care of his parents
. (my emphasis)

The respondent has
not provided details of Dr Greenwood's area(s) of speciality. She or he
appears to be a general practitioner. Dr Dossetor, is as noted above,
the Head of Psychological Medicine at Westmead (an institution which appears
to cater exclusively for children). I would have therefore expected the
respondent to have accorded greater weight to Dr Dossetor's views.

I need not consider
this issue further as the respondent has, by its actions in granting BVs
to Mrs Badraie, Shayan and Shabnam indicated that it has little or no
concerns regarding Mrs Badraie's care of Shayan. In those circumstances,
I do not consider that Shayan's removal from his parents was necessary
within the meaning of article 9(1) of CROC. That is particularly so when
the respondent, at all material times, could have declared an alternative
place of detention or granted visas to the family under section 417.

The consequences
of that breach should not be ignored. I make no criticism of Shayan's
foster family. They should be commended for looking after this vulnerable
child, whose care (as noted in the reports of Drs Wraith and Field) placed
serious stresses on the members of the foster family. However, one can
only wonder what further damage the breakdown of the foster arrangements
caused to Shayan (who, despite showing some improvement, continued to
exhibit symptoms of PTSD throughout the period of the foster arrangement).

16. Recomendations

16.1 Introduction

Section 29(2)(b)
of the HREOC Act requires that, where I conclude that an act or practice
is inconsistent with or contrary to any human right, I should make findings
to that effect and may make recommendations for preventing a repetition
of the act or a continuation of the practice. Section 29(2)(c) of the
HREOC Act states that I may also include recommendations for either or
both of the following:

(i) 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;
(ii) the taking of other action to remedy or reduce loss or damage suffered
by a person as a result of the act or practice…

Section 29(2)(d)
of the HREOC Act requires that I must include in any report to the Minister
particulars of any such recommendations. Accordingly, as noted above,
the recommendations made in my notice of 24 September 2002 appear in this
section (see 16.3 and 16.4).

In the process of
finalising this inquiry, it came to my attention that the parties had
not made submissions on the issues of:

  • what recommendations
    (if any) I should make in the event I affirmed some or all of my preliminary
    findings; and
  • to the extent
    that any such recommendations included a recommendation for the payment
    of compensation, how such compensation should be quantified.

The Commission therefore
wrote to the parties, on 29 July 2002, seeking submissions on the above
issues. The Complainant's representative provided the complainant's submissions
in accordance with the timetable.

The respondent's
submissions were originally due on 26 August 2002. The respondent sought
and was granted an extension for those submissions such that they were
due on 6 September 2002. Those submissions were not received until 18
September 2002.

16.2 Submissions
made on a possible recommendation on financial compensation

The respondent's
submissions regarding compensation were, in essence, that the question
of compensation did not arise by reason of the fact that the respondent
did not accept my Preliminary Findings. I have, however, found herein
that certain of the acts or practices complained of were inconsistent
with or contrary to Shayan's human rights.

Mr Badraie's representatives
submitted that it was not, in the absence of expert evidence, possible
to quantify accurately the loss suffered by Shayan. It was therefore submitted
that the appropriate course was for the respondent to pay for a medical
expert to determine "the degree of the incapacity if any and the
extent of the diminishment of the future enjoyment of life, if any".

I do not consider
that it is appropriate to further prolong this inquiry by recommending
such a process. I accept that there are uncertainties in the assessment
of Shayan's loss. However, having regard to the duty of the Commission
to perform its functions efficiently [65], I have sought
to deal with the issue of a possible financial compensation recommendation
as best I can on the material before me.

It was submitted
by Mr Badraie's representatives, in the alternative, that $500,000 would
be an appropriate sum to recommend by way of compensation. That figure
was said to comprise:

  • compensation
    for future medical and psychological treatment;
  • compensation for
    the diminishment of Shayan's future quality of life; and
  • pain and suffering.

In relation to the
first two components, the Mr Badraie's representatives relied upon the
evidence of opinions expressed by Dr Greenwood (in his letter to Mr Fabreschi
of 19 June 2001 - see section 9.14 above) and Dr Nair (in his letter to
the Centre Manager of 28 May 2001 - see section 9.14 above) which was
said to demonstrate the "need for on-going medical treatment and
diminishment of future enjoyment of life".

16.3 My findings
on a recommendation for financial compensation

There is very little
jurisprudence dealing with the assessment of recommendations for financial
compensation for breaches of human rights under the HREOC Act. However,
in considering the assessment of a recommendation for compensation under
section 35 of the HREOC Act (relating to discrimination matters under
Part II, Division 4 of the HREOC Act), the Federal Court has indicated
that tort principles for the assessment of damages should be applied [66].
As such, so far as is possible by a recommendation for compensation, the
object should be to place the injured party in the same position as if
the wrong or wrongs had not occurred. [67]

The compensation
claimed in respect of pain and suffering and loss of enjoyment (or amenities)
of life would, in tort law, be characterised as heads of "non-economic
loss". Of their nature, they have no obvious monetary equivalent
and courts therefore strive to achieve fair rather than full or perfect
compensation in respect of such losses [68]. Courts
also tend to assess such damages as a global sum, rather than separately
.[69]

On the basis of the
material before me, I find that the acts or practices of the respondent
that were contrary to or inconsistent with Shayan's human rights did cause
loss in the nature of the non-economic loss alleged. I assess that loss
in the amount of $70,000. In arriving at that figure, I have had regard
to:

  • Shayan's relatively
    young age, which means that his loss is likely to be experienced over
    a longer period than that of an older person ;[70]
  • the opinions
    expressed by Dr Hannan (in his report of 28 March 2001), Dr Nair (in
    his report of 15 May 2001 and in his letter to the Centre Manager of
    28 May 2001), Dr Wraith (in her reports of 4 September 2001, 12 November
    2001 and 22 November 2001) and Dr Field (in her summary of meetings
    with Shayan and his parents and foster family in the facsimile to DIMIA
    of 7 December 2001). Those opinions (which are extracted above) included
    statements to the effect that Shayan's disorder was (or was likely to
    be) long term in nature, would require ongoing treatment and that Shayan
    exhibited developmental delays and deviations in social, cognitive and
    behavioural areas; and
  • previous recommendations
    made by the Commission in reports to the Minister for the payment of
    compensation under 29(2)(c)(i) of the HREOC Act .[71]

I therefore recommend
that the respondent pay to Mr Badraie (for the benefit of Shayan) the
amount of $70,000.

The position regarding
Shayan's future medical and psychological counselling expenses is somewhat
different. In a common law personal injury matter, those losses would
be characterised as future economic losses and a court would attempt to
quantify them with some degree of precision. Of course, there is bound
to be some degree of uncertainty in that process, by reason of the fact
that it involves consideration of future possibilities . However, the
problem I face is primarily evidentiary, in that the uncertainty derives
from the fact that the parties have not provided to the Commission evidence
addressing the following matters:

  • the nature and
    expected duration of the treatment required by Shayan;
  • the cost of any
    such treatment; and
  • whether any such
    costs will be borne entirely by Shayan's family or whether they will
    be entitled to some form of assistance.

At common law, where
the loss for which the plaintiff claims damages is one in respect of which
particular evidence would normally be brought and such evidence is available,
the court will expect to have it. Plaintiffs who fail to lead such evidence
cannot afterwards complain if they obtain smaller damages than they would
have done if the evidence been led.

Nevertheless, my
recommendatory powers are broad and flexible (as is appropriate in the
context of breaches of human rights), extending to 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 question. It therefore seems to me appropriate
and sensible to recommend that the respondent pay Shayan's medical and
psychological counselling expenses for the treatment of his PTSD and any
other associated problems.

16.4 Other Recommendations

I further recommend
that:

(a) The respondent
apologise to Shayan and his family. Apologies are important remedies
for breaches of human rights . They, at least to some extent, alleviate
the suffering of those who have been wronged. Given the nature of the
breaches I have found in this case, I recommend that that apology be
made in writing and by the Minister on behalf of the respondent.

(b) The respondent
should immediately ensure that all required infrastructure is put in
place to allow families with children who are at risk of developing
a physical or mental illness by reason of their conditions of detention
to be detained outside Immigration Detention Centres or Immigration
Reception and Processing Centres in conditions that ameliorate any such
risk.

(c) The respondent
put in place guidelines for the utilisation of alternative detention
facilities. Amongst other things, those guidelines should stipulate
that, where a child at risk of physical or mental harm by reason of
their detention, alternative detention with the child's parents is to
be preferred over foster arrangements (except in cases of abuse or neglect
of a child by a parent).

(d) The Minister
consider amending MSI 225 so as to ensure that future similar cases
are brought to his attention as soon as practicable.

(e) The respondent
put in place (to the extent that they do not already exist) procedures
requiring families with young children to be immediately removed from
Immigration Detention Centres or Immigration Reception and Processing
Centres when riots or other incidents that could mentally or physically
harm young children occur in such places.

(f) In his memorandum
of 21 January 2001, Mr Lynch noted that appropriate health care and
other professionals had not been consulted prior to the transfer of
the Badraie family to Sierra compound. To the extent that this is not
already a required procedure, the respondent should ensure that that
procedure is mandated for such transfers. The respondent should also
consider whether its other policies and procedures have been developed
so as to ensure that the best interests of the child principle guides
all decisions affecting children detained under the Migration Act.

Mr Badraie's representatives
also sought recommendations to the effect that the Commonwealth seek no
costs for incarceration or, alternatively, that the Badraie family be
granted a permanent protection visa. 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.

17. Action
taken by the respondent

As noted above, I
am required, under section 29(2)(e) of the HREOC Act to state in this
report whether, to the knowledge of the Commission, the respondent has
taken or is taking any action as a result of the findings and recommendations
of the Commission and, if so, the nature of that action.

Accordingly, I invited
DIMIA, on behalf of the respondent, to advise the Commission of those
matters.

In a letter dated
9 October 2002, DIMIA stated that, as it did not accept the findings made
in my notice of 24 September 2002, the "issue of financial compensation
and apology does not arise". DIMIA went on to reiterate submissions
made earlier in the course of the inquiry. I have considered those submissions
above.

As regards my other
recommendations (ie those that appear in paragraphs (b) to (f) in section
16.4 above) DIMIA provided the following additional information:

Recommendation
B - Infrastructure is put in place to allow families with children who
are at risk of developing a physical or mental illness by reason of
their conditions of detention to be detained outside detention centres
in conditions that ameliorate any such risk

The Department
has a number of mechanisms, not all of which are dependent on infrastructure,
to address the needs of children at risk for a variety of reasons. The
Department will continue to use the flexibility that this range of mechanisms
provides for dealing with such issues on a case by base (sic) basis
to ensure that the needs of the individuals at risk are met. These include
arrangements with the South Australian Government for alternative places
of detention, including foster homes, for unaccompanied minors in detention.

The available arrangements
also include the consideration of a Bridging Visa that, for those who
are eligible, would lead to their release from detention. For those
who entered unlawfully, and have not been granted a substantive visa,
they maybe eligible for a bridging visa if they:

  • are under 18
    years old (including unaccompanied minors) and it is considered to
    be in their best interest; or
  • are over 75
    years old; or
  • have a medical
    condition which cannot be adequately treated in detention; or
  • are the spouse
    of an Australian citizen, permanent resident or eligible New Zealand
    citizen.

As far as infrastructure
is concerned, the Department in August 2001 established the Woomera
Residential Housing Project which enabled 25 women and children to live
in a cluster of houses in the Woomera township under alternative detention
arrangements. Following an evaluation of the trial the Minister has
announced that the Project will be expanded and extended. The Department
is exploring the use of additional houses adjacent to the current Project
in Woomera. The Minister has also extended the criteria for participants
in the Project to include:

  • women and children
    whose cases are being considered by the Refugee Review Tribunal or
    Courts; and
  • the ability
    for an assessment to be made on a case by case basis which would include
    special needs cases and those who are vulnerable or at risk and who
    could otherwise not be accommodated appropriately in the detention
    facility.

The Minister has
also sought the assistance of the South Australian Government in identifying
appropriate clusters of houses in Port Augusta and/or Whyalla to enable
similar projects to be established in the vicinity of the Baxter facility.

The Minister continues
to consider and approve other alternative detention arrangements as
required for the particular circumstances facing individuals or families.

Recommendation
C - Guidelines for the utilisation of alternative detention facilities

The Department
is currently developing guidelines for the use of alternative places
of detention for children and others including revised guidelines for
the care of unaccompanied minors. These guidelines continue to leave
the determination of the appropriate place of detention to be made on
a case-by-case basis taking into account the best interests of the child
and the facilities and arrangements available to the Department at the
time.

Recommendation
D - The Minister consider amending MSI 225 so as to ensure that future
similar cases are brought to his attention as soon as practicable

The Department
submits that Migration Series Instruction (MSI) 225, 'Ministerial guidelines
for the identification of unique or exceptional circumstances where
it may be in the public interest to substitute a more favourable decision
under s345, 351, 391, 417, 454 of the Migration Act 1958', provides
sufficient detail for procedures to be applied for the effective administration
of the Minister's s.417 powers.

Under section 417
of the Act the Minister has the power but not the duty to consider whether
to exercise that power or to actually exercise the power, to substitute
a more favourable decision for a decision of the RRT if the Minister
thinks it is in the public interest to do so.

As stated in the
Act "The Minister does not have a duty to consider whether to exercise
this power under subsection (1) in respect of any decision, whether
he or she is requested to do so by an applicant or by any other person,
or in any other circumstances".

These public interest
powers allow the Minister to substitute a more favourable decision than
that made by a review tribunal in the applicant's case. That is, where
the Tribunal has affirmed a decision to refuse to grant the person a
visa, the Minister may in the public interest, substitute that decision
and grant the applicant a visa. The purpose of this power is to allow
a person, who would otherwise have been liable to be removed from Australia
because they did not have a visa, to remain in Australia. For example,
the Minister may decide to exercise this power to grant a visa where
removal may breach Australia's non-refoulement obligations, or where
removal may separate a family.

Therefore, the
purpose of MSI 225 is to identify cases where it would be appropriate
in the public interest for a person to remain in Australia - it operates
in the removal context. Where there is no such reason for the persons
to remain in Australia and the persons are liable for removal, then
it would be inappropriate for the Minister to grant those persons visas
using these powers. Bridging visas are available for eligible persons
to be released from detention pending certain events. Persons who are
eligible can apply for these visas; there is no need for the Minister
to exercise his public interest powers to grant Bridging Visas as the
persons would have to satisfy the same eligibility requirements whether
the persons had applied or the Minister was exercising his public interest
powers.

Recommendation
E - Procedures requiring families with young children to be immediately
removed from centres when riots or other incidents that could mentally
or physically harm young children occur in such paces (sic)

In many circumstances
it would not be operationally practical or necessary to move children
at risk from a detention facility at times of disturbances or major
incidents. A number of practical considerations, including an appropriate
place to relocate detainees and staffing issues, would arise. Further
movement of members of families out of the centre could exacerbate the
disturbance, particularly if one or other of the parents or other detainees
are opposed to the move. In situations where the disturbances involves
demonstrations around the centre perimeter, movement of children and
families to another location could put children, families and staff
at risk and jeopardise the officers (sic) ability to maintain detention
of those being moved as required by law.

Moreover, in many
detention centres the separation of compounds means that it might not
be necessary to move families and children to protect them from any
risk of harm. For example, the new facility at Baxter has been designed
to ensure that residents in one compound are protected from the actions
and behaviour of detainees in other compounds.

Nevertheless the
Department has taken this step in certain circumstances, for example
in moving unaccompanied minors to alternative places of detention under
arrangements with the South Australian child welfare agency in January
and February of this year at the time of hunger strikes and self harm
at Woomera IRPC.

The Department
and Services Provider make every effort to prevent undesirable or harmful
actions occurring in immigration detention facilities, and to ensure
that children are not exposed to them. Parents of detainee children
also have a responsibility to keep their children from witnessing distressing
behavior by detainees.

The Department
and Detention Services Provider makes every effort to move children
away from areas in detention centres where there are disturbances and
self harm. The Department and Services Provider have in place a comprehensive
range of policies and practices, which aim to ensure the safety and
protection of all children in detention. These policies and practices
operate within a legislative framework that includes both the Migration
Act and State child welfare legislation. This meets the obligation to
ensure the protection of children under Article 19 of CROC.

Recommendation
F - Procedure is mandated for transfers (between compounds) and other
policies and procedures have been developed so as to ensure that the
best interest of the child principle guides all decisions affecting
children detained under the Migration Act.

The procedure for
movement of detainees within a centre is detailed in the Detention Services
Provider's Operational Orders. Where the movement of a detainee may
impact on the detainee's health the Detention Services Provider consults
relevant health providers.

The matters set out
in response to recommendations (b), (c) and (e) indicate that some positive
changes may have been implemented since the acts or practices which are
the subject of this inquiry took place. The respondent is to be commended
for its efforts in those respects. In particular, the respondent is to
be commended for implementing, expanding and extending the Woomera Residential
Housing Project and for exploring other alternative detention arrangements.

However, it is not
clear, from the respondent's advice, whether the criteria governing those
alternative detention arrangements permits, or will permit, whole families
(including males over the age of 12) to make use of those facilities.
It is my understanding, based upon material considered by the Commission
in the course of granting to DIMIA a temporary exemption under the Sex
Discrimination Act 1984
(Cth) in respect of the Woomera Residential
Housing Project,[75] that males above the age of 12
are currently only permitted to make use of those alternative detention
facilities if the Minister exercises a discretion to permit them to do
so. In light of the respondent's emphasis upon "keeping families
together", I strongly urge that serious consideration is given to
making those facilities more accessible to whole families, regardless
of the sex and age of individual family members, including through the
provision of dedicated family accommodation.

I am also concerned
that the respondent has not sought to provide to the Commission any specific
advice in relation to alternative detention arrangements which might be
utilised by persons detained at Villawood. As I have noted above, it appears
that no such facilities were available for Shayan and his family at the
time Mr Fabreschi communicated with Mr Efram on or about 31 May 2001.

The balance of the
advice provided by DIMIA (on behalf of the respondent) appears to be to
the effect that there are currently in place measures which sufficiently
address the recommendations I have made. Although not entirely clear,
those measures largely appear to have been in place at the time of the
acts or practices which were the subject of this inquiry. I need therefore
only say that those measures failed to protect the vulnerable child on
whose behalf this complaint was made. I would hope that the respondent
will reconsider my findings and recommendations with a view to avoiding
a repetition of the acts or practices which were inconsistent with Shayan's
human rights and which caused him loss and damage.


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 shall not furnish a report to
the Attorney-General until it has given the respondent to the complaint
an opportunity to make written 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 any actions that the person is taking as a result of the
findings and recommendations of the Commission (s.29(2)(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).


APPENDIX B
Documentary Material Before the Commission

1. Letter of complaint
dated 29 August 2001 from the complainant, including the following attachments:

  • Admission document
    from Westmead in relation to Shayan
  • Report from Dr
    Karen Zwi dated 10 May 2001
  • Letter from Dr
    David Dossetor and Dr Zwi to Dr Greenwood dated 18 May 2001 concerning
    Shayan's medical condition
  • Letter from Dr
    Dossetor and Dr Zwi to the Minister
  • Letter from Dr
    Dossetor to the Minister dated 29 June 2001
  • Letter from Dr
    Dossetor to NSW Department of Health
  • Memorandum from
    Mr Wayne Lynch to Mr Alan Crace referring to an incident on 11 January
    2001 involving Shayan
  • Memorandum from
    Mr Wayne Lynch to Mr Alan Crace referring to an incident on 20 and 21
    January 2001involving Shayan
  • Memorandum from
    Mr Wayne Lynch to Ms Trish Farrow referring to an incident involving
    Shayan on 22 February 2001
  • Memorandum from
    Mr Wayne Lynch, Counsellor at Woomera to Mr Alan Crace referring to
    the depressed atmosphere at Woomera IDC dated 11 January 2001
  • Transcript of
    7.30 Report dated 20 August 2001
  • Transcript of
    The World Today dated 20 August 2001
  • Drawings by Shayan
  • Photos of the
    Badraie family

2 Letter from Mr
W J Farmer of DIMIA dated 14 March 2002 in response to the complaint,
including the following attachments:

  • Protection Visa
    decision record dated 22 September 2000s
  • Refugee Review
    Tribunal Record dated 9 March 2001
  • Letter to Minister
    from Australian Migration Program and Investments (AMPI) dated 29 May
    2001
  • Ministerial submission
    dated 20 June 2001
  • Letter to Minister
    from AMPI dated 17 July 2001
  • Letter to VIDC
    from Dr Zwi dated 10 May 2001
  • Letter to Dr Greenwood
    from Drs Dossetor and Zwi dated 18 May 2001
  • Letter from Mr
    Ali Erem of DIMIA to Mr Fulvio Fabreschi of ACM VIDC dated 31 May 2001
  • Letter from Dr
    Greenwood to Mr Fabreschi dated 19 June 2001
  • Letter from Dr
    Dossetor to the Minister dated 29 June 2001
  • Memorandum from
    Ms Sally Cleland dated 13 July 2001
  • Report by Westmead
    Hospital dated 20 July 2001
  • ACM Officer Khylie
    Brown report dated 20 July 2001
  • Anonymous ACM
    Officer report dated 7 August 2001
  • Current Issues
    Brief: Minor Detainee Refusing to Eat or Drink at the Villawood IDC
    dated 16 August 2001
  • Letter from Dr
    Maurice Gett to DIMIA dated 20 August 2001
  • Assessment Report
    of Shayan by Dr Ruth Wraith dated 4 September 2001
  • Review of Shayan
    by Dr Wraith dated 12 November 2001
  • Letter from Ms
    Jyotsna Field regarding Shayan's treatment dated 12 November 2001
  • Review of Shayan
    by Dr Wraith dated 22 November 2001
  • Notes from Ms
    Jyotsna Field regarding Shayan's treatment dated 28 November 2001
  • Note from Dr
    Gett dated 18 December 2001.

3. Letter from Mr
W J Farmer dated 26 June 2002, including the following attachments:

  • An Incident report
    dated 20 January 2001;
  • An ACM document
    dated 1 May 2001; and
  • A copy of Section
    417 of the Migration Act.

1.
Human Rights and Equal Opportunity Commission, "Those who've come
across the seas: Detention of unauthorised arrivals", HRC Report,
11 May 1998.
2. Pursuant to section 198 or 199 of the Migration Act.
3. See paragraph 6.2.
4. See paragraph 6.4.
5. See page 8 of the respondent's submissions on my Preliminary
Findings dated 26 June 2002.
6. See paragraph 5(1)(ii) of my Preliminary Findings.
7. See section 14(1) of the HREOC Act.
8. See page 13 of the RRT's reasons.
9. See page 28 of the RRT's reasons.
10. See section 6 of that memorandum.
11. See page 3 of the respondent's submissions in response
to my Preliminary Findings.
12. Badraie v Minister for Immigration and Multicultural
Affairs [2001] FCA 616.
13. N1202/01A v Minister for Immigration & Multicultural
Affairs [2002] FCAFC 94.
14. Transcript of 7.30 Report dated 19 August 2002.
15. Secretary, Department of Defence v HREOC, Burgess
& Ors (1997) 78 FCR 208
("Burgess' Case").
16. See, by way of example, at pages 5, 10 and 13 of
the response to my Preliminary Findings of
26 June 2002.
17. I note recommendations made in the Commission's report
entitled Those who've come across the seas: detention of unauthorised
arrivals (tabled in Federal Parliament in 1998) that sections 189 and
196 of the Migration Act be repealed and replaced with a system requiring
that all unauthorised arrivals be assessed to gauge their suitability
for release on a BV. Those recommendations have not been implemented.
18. See the Current Issues Brief of 16 August 2001, discussed
above.
19. Cited above.
20. See at 216.
21. See Attachment A to DIMIA's letter to the Commission
of 14 March 2002 and my
Preliminary Findings.
22. S Detrick, "A commentary on the United Nations
Convention on the Rights of the Child" Martinus Nijhoff Publishers
(1999), page 119.
23. United Nations Children's Fund ("UNICEF")
"Implementation Handbook for the Convention on the Rights of the
Child" (1998) page 240. Article 45 of CROC recognises the special
competence of UNICEF and other United Nations organs "to provide
expert advice on the implementation of the Convention in areas falling
within the scope of their respective mandates".
24. S Detrick, op cit, page 321.
25. See paragraph 6.
26. Ibid.
27. See pages 8 and 9 of the respondent's submissions
on my Preliminary Findings dated
26 June 2002.
28. S Detrick, op cit, page 119.
29. Which is the treaty body created by article 44 of
CROC. The Committee consists of ten experts of "high moral standards
and recognised competence in the field". Australian Courts take account
of the "communications" or "views" of such entities
in interpreting international human rights obligations under treaties
to which Australia is a party.
30. Adopted by General Assembly resolution 40/33 of 29
November 1985.
31. Adopted by General Assembly resolution 45/113 of
14 December 1990.
32. See eg Paraguay Preliminary Observations Add 27,
paragraph 13. Indeed, the Committee has confirmed that it regards those
standards as more generally relevant to the implementation of rights conferred
by CROC in the area of juvenile justice, stating "the Convention
called for the implementation of the most conducive provisions for the
realization of the rights of the child, and had therefore to be considered
in conjunction with other relevant international instruments, namely the
Beijing Rules, the Riyadh Guidelines and the Rules for the Protection
of Juveniles Deprived of their Liberty. Those instruments complemented
and provided guidance for the implementation of the rights recognized
by the Convention and confirmed that there was no possible conflict between
human rights and juvenile justice" (See Report on General Discussion
on administration of juvenile justice, Report on the Tenth Session, October-November
1995, CRC/C/46, para 214).
33. S Detrick, op cit, page 633.
34. See eg Beijing Rules paragraphs 13.2, 28.1, 28.2
and 29.1.
35. See eg UN Rules paragraphs 12 and 28 and the Beijing
Rules paragraph 26.2.
36. See eg UN Rules paragraphs 49 and 51.
37. See eg UN Rules paragraphs 18 and 32 and Parts (IV)E
and (IV) F and the Beijing Rules paragraphs 24.1, 26.1, 26.2 and 26.6.
38. The UNHRC is the treaty body established under article
28 of the ICCPR.
39. Ibid, at page 188.
40. Massera v Uruguay (5/1977)
41. S Joseph "The International Covenent on Civil
and Political Rights", OUP 2001.
42. Nowak M, UN Covenant on Civil and Political Rights
CCPR Commentary MP Engel, Germany, 1993, at page 186.
43. Which is similar to the "separate treatment"
obligation that appears in article 10(2)(a) of the ICCPR.
44. That is, approving an alternative place of detention
for the family under section 5 of the Migration Act or transferring the
family to another facillity, less prone to "disturbances". In
relation to the first alternative, the Beijing Rules stress the importance
of considering alternatives to detention in
an institution.
45. UNICEF, op cit, page 37. As UNICEF notes, the concept
of "best interests" of children has been the subject of more
academic analysis than any other provision of the Convention; op cit,
page 39.
46. (1995) 183 CLR 273.
47. In particular, see the decisions of Mason CJ and
Deane J at page 289. But note the dissent of McHugh J at page 319.
48. At 289.
49. At 292.
50. UNICEF, op cit p40.
51. Ibid.
52. See the Preamble to CROC.
53. Add 30 para 16.
54. Committee on the Rights of the Child, Guidelines
for Periodic Reports, para 35.
55. Add 30, para 16.
56. S Detrick, page 630.
57. Rules 1 and 2.
58. Rule 17(b) provides: "Restrictions on the personal
liberty of the juvenile shall be imposed only after careful consideration
and shall be limited to the possible minimum".
59. Rule 17(c) provides that "Deprivation of personal
liberty shall not be imposed unless the juvenile is adjudicated of a serious
act involving violence against another person or of persistence in committing
other serious offences and unless there is no other appropriate response".
60. 305/1988, 29/7/1990.
61. Communication No 560/1993, 30 April 1997.
62. In a similar but more compressed form, the respondent
later stated: "Shayan was diagnosed with Post Traumatic Stress Syndrome
on 10 May 2001 by specialists at Westmead Children's Hospital. As stated
above Shayan has received extensive ongoing medical attention prior to
and since this date to assist with his condition. Negotiations to remove
Shayan into foster care were initiated in June 2001 with all relevant
parties. These negotiations proceeded on an ongoing basis until Shayan
was removed from Villawood IDC into foster care on 23 August 2001."
63. UNICEF, op cit, page 121
64. Ibid page 122.
65. See section 10A(1) of the HREOC Act.
66. Peacock v The Commonwealth (2000) 104 FCR 464 per
Wilcox J at 483.
67. Ibid. See also Hall v A & A Sheiban Pty Limited
(1989) 20 FCR 217 per Lockhart J at 239.
68. Sharman v Evans (1977) 138 CLR 563 at 589.
69. Ibid at 584-5.
70. See eg Clark v Kramer [1986] WAR 54.
71. To date, the publicly available reports to the Minister
regarding acts or practices that are inconsistent with or contrary to
human rights have included recommendations for compensation for amounts
of $20,000, $15,000 and $2,000 for various breaches of the ICCPR (see
HRC Reports 12 and 15 available at http://www.humanrights.gov.au). In
the matters in which those recommendations were made, there was no evidence
before the Commission to the effect that physical or mental harm akin
to Shayan's PTSD had been caused by the relevant acts or practices. The
relatively higher quantum of compensation recommended in this matter reflects
that difference.
72. See Malec v JC Hutton Pty Limited (1990) 169 CLR
638.
73. Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd
(1938) 61 CLR 286.
74. D Shelton "Remedies in International Human Rights
Law" OUP 2000 page 151.
75. That temporary exemption was granted on 14 October
2002.

Last
updated 12 December 2002.