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