9.5 The Committee observes that the author
could, in principle, have applied to the court for
review of the grounds of his detention before the
enactment of the Migration Amendment Act of 5
May 1992; after that date, the domestic courts
retained that power with a view to ordering the
release of a person if they found the detention to be
unlawful under Australian law. In effect, however,
the courts’ control and power to order the release of
an individual was limited to an assessment of
whether this individual was a “designated person”
within the meaning of the Migration Amendment
Act. If the criteria for such determination were met,
the courts had no power to review the continued
detention of an individual and to order his/her
release. In the Committee’s opinion, court review of
the lawfulness of detention under article 9, paragraph
4, which must include the possibility of ordering
release, is not limited to mere compliance of the
detention with domestic law. While domestic legal
systems may institute differing methods for ensuring
court review of administrative detention, what is
decisive for the purposes of article 9, paragraph 4, is
that such review is, in its effects, real and not merely
formal. By stipulating that the court must have the
power to order release “if the detention is not
lawful”, article 9, paragraph 4, requires that the court
be empowered to order release, if the detention is
incompatible with the requirements in article 9,
paragraph 1, or in other provisions of the Covenant.
This conclusion is supported by article 9,
paragraph 5, which obviously governs the granting
of compensation for detention that is “unlawful”
either under the terms of domestic law or within the
meaning of the Covenant. As the State party’s
submissions in the instant case show that court
review available to A. was, in fact, limited to a
formal assessment of the self-evident fact that he
was indeed a “designated person” within the
meaning of the Migration Amendment Act, the
Committee concludes that the author’s right, under
article 9, paragraph 4, to have his detention reviewed
by a court, was violated.
(a)
whether the prolonged detention of the
author, pending determination of his entitlement to
refugee status, was "arbitrary" within the meaning of
article 9, paragraph 1;
(b)
whether the alleged impossibility to
challenge the lawfulness of the author's detention
and his alleged lack of access to legal advice was in
violation of article 9, paragraph 4; and
(c)
whether the proceedings concerning his
application for refugee status fall within the scope of
application of article 14, paragraph 1 and whether, in
the affirmative, there has been a violation of
article 14, paragraph 1.
9.2 On the first question, the Committee recalls
that the notion of "arbitrariness" must not be equated
with "against the law" but be interpreted more
broadly
to
include
such
elements
as
inappropriateness and injustice. Furthermore,
remand in custody could be considered arbitrary if it
is not necessary in all the circumstances of the case,
for example to prevent flight or interference with
evidence: the element of proportionality becomes
relevant in this context. The State party however,
seeks to justify the author's detention by the fact that
he entered Australia unlawfully and by the perceived
incentive for the applicant to abscond if left in
liberty. The question for the Committee is whether
these grounds are sufficient to justify indefinite and
prolonged detention.
9.3 The Committee agrees that there is no basis
for the author's claim that it is per se arbitrary to
detain individuals requesting asylum. Nor can it find
any support for the contention that there is a rule of
customary international law which would render all
such detention arbitrary.
9.4. The Committee observes, however, that every
decision to keep a person in detention should be
open to review periodically so that the grounds
justifying the detention can be assessed. In any
event, detention should not continue beyond the
period for which the State can provide appropriate
justification. For example, the fact of illegal entry
may indicate a need for investigation and there may
be other factors particular to the individual, such as
the likelihood of absconding and lack of cooperation,
which may justify detention for a period. Without
such factors detention may be considered arbitrary,
even if entry was illegal. In the instant case, the State
party has not advanced any grounds particular to the
author’s case, which would justify his continued
detention for a period of four years, during which he
was shifted around between different detention
centres. The Committee therefore concludes that the
author's detention for a period of over four years was
arbitrary within the meaning of article 9,
paragraph 1.
9.6 As regards the author's claim that article 9,
paragraph 4, encompasses a right to legal assistance
in order to have access to the courts, the Committee
notes from the material before it that the author was
entitled to legal assistance from the day he requested
asylum and would have had access to it, had he
requested it. Indeed, the author was informed on
9 December 1989, in the attachment to the form he
signed on that day, of his right to legal assistance.
This form was read in its entirety to him in
Kampuchean, his own language, by a certified
interpreter. That the author did not avail himself of
this possibility at that point in time cannot be held
against the State party. Subsequently (as of
13 September 1990), the author sought legal advice
and received legal assistance whenever requesting it.
101
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