responded to requests of 6 and 22 September 1999,
and 15 October 1999, for revocation of the
deportation order and/or interim release pending
final determination of his case. He refused the
request for interim release, and stated that he was
continuing to assess the request for revocation of the
deportation order. In December 2000, the Minister
declined, following further requests for intervention,
to release the author.18
being overturned in subsequent proceedings, the
AAT in fact affirmed this position. Moreover, the
author argues that the pattern of conduct shown by
Iran supports the conclusion that he will be exposed
to a violation of his Covenant rights in the event of
deportation.22
3.3 The author further claims that his prolonged
detention in Australia upon arrival breaches articles
9, paragraphs 1 and 4, of the Covenant, as he was
detained upon arrival under the mandatory (nondiscretionary) provisions of (then) s.89 Migration
Act. Those provisions do not provide for any review
of detention, either by judicial or administrative
means. The author considers his case to fall within
the principles laid down by the Committee in its
Views in A v. Australia,23 in which the Committee
held that detention, even of an illegal immigrant,
which was neither reviewed periodically nor
otherwise justified in the particular case violated
article 9, paragraph 1, and that the absence of real
judicial review including the possibility of release
violated article 9, paragraph 4. The author
emphasizes that, as in A’s case, there was no
justification for his prolonged detention, and that the
present legislation had the same effect of depriving
him of the ability to make an effective judicial
application for review of detention. For these
violations of article 9, the author seeks adequate
compensation for his detention under article 2,
paragraph 3. The author also maintains that his
current detention is in violation of article 9.24
The complaint
3.1 The author contends that he has suffered a
violation of his rights under article 7 in dual fashion.
Firstly, he was detained in such a way and for such a
prolonged period (from his arrival on 22 July 1992
until 10 August 1994) as to cause him mental illness,
from which he did not earlier suffer. The medical
evidence was unanimous in concluding that his
severe psychiatric illness was brought about by his
prolonged incarceration,19 and this had been accepted
by the AAT and the courts. The author contends that
he was initially imprisoned without any evidence of
a risk of abscondment or other danger to the
community. He could have been released into the
community with commonly utilized bail conditions
such as a bond or surety, or residential and/or
reporting requirements. The author also alleges that
his current detention is in breach of article 7.20
3.2 Secondly, the author argues a violation of
article 7 by Australia in that his proposed deportation
to Iran would expose him to a real risk of a violation
of his Covenant rights, at least of article 7 and
possibly also article 9, by Iran. He refers in this
connection to the Committee’s jurisprudence that if a
State party removes a person within its jurisdiction,
and the necessary and foreseeable consequence is a
violation of that person’s rights under the Covenant
in another jurisdiction, the State party itself may be
in violation of the Covenant.21 He considers that the
Minister’s delegate found that the author had a wellfounded fear of persecution in Iran because of his
religion and because his psychological state may
bring him to the notice of the authorities which could
lead to the deprivation of his liberty under such
conditions as to constitute persecution. Far from
State party’s admissibility and merits submission
4.1 By submissions of 1 March 2001, the State
responded on the admissibility and the merits of the
author’s claims.
22
In this connection the author supplies reports, dated
14 December 1994, 1 August 1997, and 19 November
1999, by Dr. Colin Rubinstein, Senior Lecturer in Middle
East Politics (Monash University) and member of
Victorian Ethnic Affairs Commission, detailing “real and
effective discrimination against Christians”, “effective
intimidation”, “the fiercest campaign since 1979 against
the small Christian minority”, including killings of clerics
and arrests of apostates and a “gradual eradication of
existing churches under legal pretences”. The situation for
minorities, including Christians, is “clearly degenerating”
and “deteriorating rapidly”. Accordingly, the author could
expect a “high probability of vindictive retaliation” and
“real persecution” in the event of his return.
18
It is not clear whether this was, or included, a decision
on the request for revocation of the deportation order still
pending from the Minister’s deferral of that question on
15 October 1999.
19
See footnotes 5, 6, 7, 8, 9, 10, 11, 13 and 15, supra.
23
20
This is clarified by his subsequent (final) submissions
of 21 September 2001. See paragraph 5.3 (with
footnote 57), paragraph 6.3 and paragraphs 6.5 to 6.8.
24
No. 560/1993.
This is clarified by his subsequent (final) submissions
of 21 September 2001. While the initial complaint appears
confined to the initial period of detention, the State party’s
main submissions also address the second detention from
the perspective of article 9 (see especially paragraphs
4.22-4.24 and 4.32-4.35).
21
ARJ v. Australia (No. 692/1996) and T. v. Australia
(No. 706/1996), coupled with General Comment 20 on
article 7.
145
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