pursuant to ss.253 and 254 Migration Act 1958,
since he was granted parole from his prison sentence
on 4 December 1998. Rather than being arbitrary, it
is necessary and reasonable in all of the
circumstances, and proportionate to the end sought
of ensuring he does not abscond pending his
deportation and of protecting the Australian
community. After appeals were exhausted, the State
party stayed the deportation in response to the
Committee’s rule 86 request pending finalization of
this matter. Moreover, the State party submits that it
is reasonable to suspect that the author would breach
his release conditions and abscond if released.
Iran, when in fact his father was dead and his mother
was living in Australia and had applied for refugee
status. He also stated that he had $5,000 in funds for
his visit, but arrived with no funds and lied in the
interview about this matter. He had also purchased a
return ticket for the purposes of gaining his visa, but
had cashed it in when the visa was granted. As such,
it was reasonably suspected that if allowed to enter
Australia, he would become an illegal entrant. The
detention was accordingly necessary to prevent
abscondment, it was not disproportionate to the end
sought, and it was not unpredictable, given that the
relevant detention provisions had been in force for
some time and were published.
4.33 The State party notes that its Minister for
Immigration personally considered the justification
for continued detention on several occasions, and his
11 March 1999 decision not to release the author
from detention was reviewed by the Federal Court
and found justified. The Minister’s reasons for
decision clearly indicate that it was not arbitrary. All
of the factors relevant to the case were considered in
reaching the decision not to grant release, on the
basis that there was a significantly high possibility
that the author would reoffend and that he
constituted a continuing danger to the community
and in particular to his victim, Ms. A.
4.29 The State party also considers that there were
further reasons for the continued detention, pending
the assessment of the refugee claim. It was not
expected that the processing of the claim would be
unduly prolonged so as to warrant his release from
detention. The processing and review applications
were dealt with expeditiously by both the primary
decision maker and the review body, with the author
held in detention for just over two years. The
original application was processed in less than two
months, and the first review of the decision took
approximately six weeks. The total time taken from
the filing of the first application on 23 July 1992 to
the completion of the initial processing and several
administrative reviews of the first application for
refugee status was less than one year.
4.34 As to the claim under article 9, paragraph 4,
the State party notes that this requires a person to be
able to test the lawfulness of detention. The State
party rejects the suggestion by the Committee in A v.
Australia that “lawfulness” in this provision was not
limited to compliance with domestic law and must
be consistent with article 9, paragraph 1, and other
provisions of the Covenant. It contends there is
nothing in the terms or structure of the Covenant, or
in the travaux préparatoires or the Committee’s
General Comments, that supports such an approach.
4.30 The State party argues that, once it became
clear that continued detention was not conducive to
the treatment of the author’s mental illness, he was
released into the care of his family. As such, while
detention was mandatory, it was not arbitrary, with
the policy underlying the detention provisions flexible
enough to provide for release in exceptional
circumstances. Therefore, it cannot be said that there
were no grounds upon which a person could apply to
be released from detention, either administratively, or
by a court.
4.35 The State party identifies the various
mechanisms in its law to test the legality of
detention,51 and states that it was open to the author
at all times to pursue these mechanisms. It repeats
that, in relation to the first detention, the author
never directly applied to the courts for review of his
detention, but applied to the Minister for interim
release pending the outcome of his appeal against the
denial of refugee status. The Minister’s rejection of
the application was twice upheld in court. As to the
current detention, while he has sought interim
release, at no time has he directly challenged the
lawfulness of his detention. As to the current
detention, the State party notes that the author has on
4.31 The State party, while disagreeing with the
Committee’s Views in A v. Australia, notes
significant factual differences with that case. Firstly,
the length of detention was significantly less (some 26
months rather than 4 years). Secondly, the time taken
to process the initial application was significantly less
(under 6 weeks rather than 77 weeks). Thirdly, in this
case, there is no suggestion that the period and
conditions of detention prevented the author from
gaining access to legal representation or visits from
his family. Finally, he was actually released from the
usual places of detention into the care and custody of
family members pursuant to an exercise of Executive
discretion.
51
S.75 (v) of the Constitution, and the writ of habeas
corpus. It points to the High Court’s consideration of the
rationale of detention in coming to the conclusion that
analogous mandatory detention provisions were
constitutional in Lim v. Minister for Immigration, op.cit.
4.32 As to the current detention, the author has
been lawfully held in immigration detention,
151
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