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.