(b)
Access to lawyers during
administrative stage of the refugee process;
The State party's admissibility observations and
counsel’s comments
the
(c)
Access to lawyers during the judicial
review stage of the refugee process; in this context, it
is noted that the frequent transfers of the author to
detention facilities far away from major urban
centres vastly compounded the difficulties in
providing legal advice to him. Thus, Port Hedland,
where A. was held for over two years, is expensive
to reach by air, and the nearest major town, Perth, is
over 2,000 km away. Because of the costs and
logistical problems involved, it was difficult to find
competent Refugee Council of Australia lawyers to
take up the case.
4.1 In its submission under rule 91, the State
party supplements the facts as presented by the
author, and provides a chronology of the litigation in
which the author has been, and continues to be,
involved. It notes that, after the final decision to
reject the author's application for refugee status was
taken in December 1992, the author continued to
take legal proceedings challenging the validity of
that decision. Detention after December 1992 is said
to have been exclusively the result of legal
challenges by the author. In this context, the State
party recalls that, by a letter of 2 November 1993,
the Minister for Immigration offered the author the
opportunity, in the event of his voluntary return to
Cambodia, of applying for (re)entry to Australia
after 12 months, on a permanent visa under the
Special Assistance Category. The State party further
adds that the author's wife's application for refugee
status has been approved and that, as a result, the
author
was
released
from
custody
on
21 January 1994 and will be allowed to remain in
Australia.
3.7 Counsel contends that the serious delays on
the part of the State party in determining the author's
application for refugee status constitute a breach of
article 14, paragraph 3 (c), particularly given the fact
that he remained in detention for much of the
process.
3.8 It is contended that, as A. was detained
arbitrarily, he qualifies for compensation under article
9, paragraph 5, of the Covenant. Counsel submits that
"compensation" in this provision must be understood
to mean "just and adequate" compensation, but adds
that the State party has removed any right to
compensation for illegal detention by a legislative
amendment to the Migration Act. He notes that as a
result of the judgement of the High Court of Australia
in A's case, further proceedings were filed in the High
Court on behalf of the Pender Bay detainees including the author - seeking damages for unlawful
detention. On 24 December 1992, Parliament added
Section 54RA(1)-(4) to division 4B of the Migration
Act according to counsel in direct response to the
High Court's findings in A.'s case and the imminence
of the filing of possible claims for compensation for
illegal detention. In paragraph 3, the new provision
restricts compensation for unlawful detention to the
symbolic sum of one dollar per day. It is submitted
that the author is entitled to just and adequate
compensation for (a) pecuniary losses, namely, the
loss of the boat in which he arrived in Australia;
(b) non-pecuniary losses, including injury to liberty,
reputation, and mental suffering; and (c) aggravated
and exemplary damages based, in particular, on the
length of the detention and its conditions. The
symbolic sum the author might be entitled to under
Section 54RA (3) of division 4B would not meet the
criteria for compensation under article 9, paragraph 5.
4.2 The State party concedes the admissibility of
the communication in so far as it alleges that the
author's detention was "arbitrary" within the
meaning of article 9, paragraph 1. It adds, however,
that it strongly contests on the merits that the
author's detention was "arbitrary", and that it
contained elements of "inappropriateness, injustice
and lack of predictability".
4.3 The State party challenges the admissibility of
other elements of the complaint relating to article 9,
paragraph 1. In this context, it notes that the
communication is inadmissible ratione materiae, to
the extent that it seeks to rely on customary
international law or provisions of other international
instruments such as the 1951 Convention Relating to
the Status of Refugees. The State party argues that
the Committee is competent only to determine
whether there have been breaches of any of the
rights set forth in the Covenant; it is not permissible
to rely on customary international law or other
international instruments as the basis of a claim.
4.4 Similarly, the State party claims that counsel's
general claim that Australian policy of detaining
boat people is contrary to article 9, paragraph 1, is
inadmissible, as the Committee is not competent to
review in abstracto particular government policies or
to rely on the application of such policies to find
breaches of the Covenant. Therefore, the
communication is considered inadmissible to the
extent that it invites the Committee to determine
generally whether the policy of detaining boat
people is contrary to article 9, paragraph 1.
3.9 Finally, counsel argues that the automatic
detention of boat people of primarily Asian origin,
on the sole basis that they meet all the criteria of
division 4B of the Migration Act 1958, constitutes
discrimination on the basis of "other status" under
article 2, paragraph 1, of the Covenant, "other status"
being the status of boat people.
92
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