Communication No. 900/1999
Submitted by: Mr. C. [name withheld] (represented by Nicholas Poynder)
Alleged victim: The author
State party: Australia
Date of adoption of Views: 28 October 2002 (seventy-sixth session)
Subject matter: Complainant’s deportation
country where he risks torture
to
ticket, and was detained, as a “non-citizen” without
an entry permit, in immigration detention under
(then) s.89 Migration Act 1958 pending removal
(“the first detention”).
Procedural issues: Exhaustion of domestic remedies
- Effective and available remedy
(a) First application for refugee status and
subsequent proceedings
Substantive issues: Arbitrary detention - Inability to
challenge lawfulness of detention - Failure to
treat mental condition - Cruel, inhuman and
degrading treatment
2.2 On 23 July 1992, he made an application for
refugee status, on the basis of a well-founded fear of
religious persecution in Iran as an Assyrian
Christian. On 8 September 1992, a delegate for the
Minister of Immigration and Multicultural Affairs
refused the application. On 26 May 1993, the
Refugee Status Review Committee upheld the
refusal, and the author appealed against this refusal
to the Federal Court.4
Articles of the Covenant: 7 and 9, in conjunction
with article 2, paragraph 1
Articles of the Optional Protocol and Rules of
Procedure: 5, paragraph 2 (b), and rule 86
Finding: Violation (articles 7 and 9, paragraphs 1
and 4)
(b)
1.
The author of the communication, initially
dated 23 November 1999, is Mr. C.,1 an Iranian
national, born 15 January 1960, currently imprisoned
at Port Phillip Prison, Melbourne. He claims to be a
victim of violations by Australia of articles 7 and 9,2
in conjunction with article 2, paragraph 1, of the
Covenant. He is represented by counsel.
2.3 Meanwhile, in June 1993, the author applied to
the Minister for Immigration for interim release from
detention pending the decision of the Federal Court on
his refugee application. On 23 August 1993, the
Minister’s delegate rejected the application, observing
that there was no power under s.89 Migration Act to
release a person unless the person was removed from
Australia or granted an entry permit. On 10 November
1993, the Federal Court rejected the author’s
application for judicial review of the Minister’s
decision, confirming that no residual/discretionary
power existed in s.89 Migration Act, either expressly
or by implication, enabling release of a person
detained thereunder. On 15 June 1994, the Full Court
of the Federal Court dismissed the author’s further
appeal. It rejected inter alia an argument that article 9,
paragraph 1, of the Covenant favoured an
interpretation of s.89 which authorized only a
minimum period of detention, and implied, where
necessary, a power of release from custody pending
the determination of an application for refugee status.
1.2 Following submission of the communication
to the Human Rights Committee on 23 November
1999, a request for interim measures, pursuant to
Rule 86 of the Committee’s Rules of Procedure, was
transmitted on 2 December 1999 requesting the State
party to stay the author’s deportation whilst his case
was before the Committee.
The facts as presented
2.1 The author, who has close family ties in
Australia3 but none in Iran, was lawfully in Australia
from 2 February 1990 to 8 August 1990 and left
thereafter. On 22 July 1992, the author returned to
Australia with a Visitor’s Visa but no return air
1
Application to the Minister for interim release
and subsequent proceedings
(c)
Name withheld, at victim’s request.
Release on mental health grounds and second
application for refugee status
2.4 On 18 August 1993, the author was
psychologically assessed.5 The assessment followed
2
While the author cited article 10 on the cover page of
his communication, the subsequent substantive argument
was directed to article 9 (see paragraph 3.3 infra), and the
Committee accordingly takes the communication to
proceed on the latter basis.
4
It is unclear from the record whether the author’s
appeal to the Federal Court on the issue of the rejection of
his first application for refugee status was ever heard.
5
“Psychological Report” of Forensic Psychologist
Elizabeth Warren, dated 19 August 1993.
3
The author’s mother, along with his brother and
sister-in-law reside in Australia, while his father is
deceased. Another brother resides in Canada.
141
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