without authorization.47 It is necessary to ensure that
persons entering Australia are entitled to do so, and
to ensure that the integrity of the migration system is
upheld. The detention of unauthorized arrivals
ensures that they do not enter Australia before their
claims have been properly assessed and found to
justify entry. It also provides officials with effective
access to those persons in order to investigate and
process their claims without delay, and if those
claims are unwarranted, to remove such persons as
soon as possible. The State party argues that the
detention of unauthorized arrivals is consistent with
fundamental rights of sovereignty, including the
right of States to control the entry of persons into its
territory. As the State party has no system of identity
cards or the like for access to social services, it is
more difficult to detect, monitor and apprehend
illegal immigrants in the community, compared with
countries where such a system is in place.48
the issuance of the protection visa in March 1995,
even though as a practical matter he was
exceptionally released into his family’s care in
August 1994, for a person remains by law detained
until removed or granted permission to remain in
Australia. As to the “current detention” pending
execution of a deportation order, detention is not
mandatory and an individual can be released at the
Minister’s discretion.
4.23 Concerning the complaint under article 9,
paragraph 1, the State party argues that the
prohibition against the deprivation of liberty is not
absolute.45 While a detention must be lawful in terms
of the domestic legal order, it contends that in
determining the further element of arbitrariness in a
particular case key elements are whether the
circumstances under which a person is detained are
“reasonable” and “necessary” in all of the
circumstances or otherwise arbitrary in that the
detention is inappropriate, unjust or unpredictable. It
emphasizes that the Committee’s jurisprudence of
the Committee does not suggest that detention of
unauthorized arrivals or detention for a particular
length of time could be considered arbitrary per se,46
rather the determining factor is not the length of the
detention but whether the grounds for the detention
are reasonable, necessary, proportionate, appropriate
and justifiable in the particular case.
4.27 The State party’s experience has been that
unless detention is strictly controlled, there is a strong
likelihood that people will escape and abscond into
the community. In some cases, some unauthorized
arrivals who had been held in unfenced migrant
hostels with a reporting requirement had absconded. It
had also been difficult to gain the cooperation of the
local ethnic communities to locate such persons.49 As
such, it was reasonably suspected that if people were
not detained, but rather released in the interim into the
community, there would be a strong incentive for
them not to adhere to the conditions of release and to
disappear into the community. The State party repeats
that all applications to enter or remain are thoroughly
considered, on a case-by-case basis, and that therefore
its policy of detaining unauthorized arrivals is
reasonable,50 proportionate and necessary in all of the
circumstances. As such, the provisions under which
the author was detained, while requiring mandatory
detention, were not arbitrary, as they were justifiable
and proportionate on the grounds outlined above.
4.24 Turning to the particular case, the State party
argues that the author’s detention was and is lawful,
and reasonable and necessary in all of the
circumstances. It is, according to the State party, also
clearly distinguishable on the facts from the case of
A v. Australia.
4.25 As to the initial detention, he was detained by
law, under the s.89 Migration Act 1958. This
detention was twice judicially confirmed. As to
arbitrariness, both the provisions of the Migration
Act under which the author was detained, as well as
the individual circumstances of his case, justified his
necessary and reasonable detention.
4.26 The State party underscores that mandatory
immigration detention is an exceptional measure
primarily reserved for people who arrive in Australia
4.28 In addition, the individual factors of the
author’s detention also indicate the absence of
arbitrariness. He arrived with a visitor’s visa but no
return airline ticket, and when questioned at the
airport a number of false statements on his visa
application form were detected. These included the
assertion that his mother and father were living in
45
47
This is confirmed by the travaux préparatoires for the
drafting of article 9, paragraph 1, reveal that the drafters
explicitly contemplated detention of non-citizens for
immigration control as an exception to the general rule
that no person shall be deprived of his or her liberty.
Response of the Australian Government, at paragraph 5,
to the Views of the Committee in A v. Australia.
48
Ibid.
49
Submission by the Australian Government on Merits
of A. v. Australia.
46
In A v. Australia, op cit., the length of a period of
immigration detention was a factor in assessing the
detention as arbitrary, for “detention should not continue
beyond the period for which the State can provide
appropriate justification”.
50
The High Court has also determined that the
mandatory detentions provisions are reasonable in terms
of the domestic constitutional order: Lim v. Minister for
Immigration and Ethnic Affairs (1992) 176 CLR 1.
150
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