HREOC Report No. 22
Report of an inquiry into a complaint by Mr XY concerning his continuing detention despite having completed his criminal sentence
HREOC Report No. 22
This is a Report of the findings and reasons for findings made by the Human Rights and Equal Opportunity Commission ("the Commission") following an inquiry into a complaint lodged by Mr XY ("the complainant"). The complaint is against the Commonwealth of Australia (Department of Immigration, Multicultural and Indigenous Affairs) ("DIMIA"). The complaint was made pursuant to section 20(1)(b) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOCA"), which provides for a complaint to be made in writing to the Commission alleging that an act or practice is inconsistent with or contrary to any human right.
The complainant came to Australia in February 1982, and was granted permanent residency in July 1988. He was born in Germany, however he claims that he is a stateless person of no nationality. The complainant was convicted of criminal offences in Australia, and served his criminal sentence in Western Australia. He was served with a deportation order by DIMIA on 23 July 1997. However, he has not yet been deported as negotiations attempted by DIMIA have not secured a country that will accept the complainant. He completed his criminal sentence on 11 June 2000 and since that date has been detained pursuant to section 253 of the Migration Act 1958 (Cth) ("the Migration Act"), which provides that if a person is subject to a deportation order, they can be detained in immigration detention pending their deportation. Negotiations were undertaken by DIMIA with the Polish government in an attempt to deport the complainant to Poland. However, DIMIA advised in a letter dated 25 June 2002 that negotiations with Poland had ceased, as the Polish government would not issue the complainant with a certificate of Polish citizenship. In that letter, DIMIA also advised that negotiations with the German government for the complainant's possible deportation to Germany, which had commenced as early as 1997, were continuing. At the time the complaint was lodged, the complainant was being held at Albany Regional Prison ("the Prison"). He is currently being held at the Perth Immigration Detention Centre ("PIDC").
The complainant alleges that his human rights are being breached because although he has served his criminal sentence, he continues to be detained because his deportation to another country cannot be secured. The complainant is concerned about the continuing and indefinite nature of his detention and alleges that it amounts to a breach of his rights under Article 9(1) of the International Covenant on Civil and Political Rights ("ICCPR").
Article 9(1) provides as follows:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
I investigated the complaint pursuant to section 11(1)(f) of the HREOCA and conciliation was attempted. However, agreement was not able to be reached and I formed the view that these matters were not amenable to conciliation . 
I provided a preliminary report to the parties dated 27 February 2002 which outlined my preliminary findings in relation to the complaint. In summary, the preliminary findings were that DIMIA, on behalf of the Commonwealth of Australia, had breached the complainant's human rights in that violations of article 9(1) of the ICCPR had occurred. My preliminary opinion was that the complainant's continued detention was arbitrary and thus in breach of article 9(1), as there was no realistic indication that the complainant would be deported in the near future.  I issued a notice of findings to the parties on 23 September 2002.
In my preliminary findings dated 27 February 2002 I made a number of findings of fact. Taking into account all of the information provided by the parties, my findings of fact relevant to the notice I issued on 23 September 2002 are as follows:
2.1 The complainant arrived in Australia in February 1982 on a short-term visitor visa. His travel document at the time of his arrival in Australia was a Reiseauweis - a German travel document issued to stateless persons. In December 1982 he married an Australian permanent resident. He applied for a permanent residence visa, which was granted in July 1988. In 1991 the complainant was convicted of sexual assault offences that incurred a prison sentence of eleven and a half years. Mr XY was eligible for parole on 17 November 1997, but was not granted parole at any time.
2.2 The complainant was served with a deportation order by the respondent on 23 July 1997. The order was made pursuant to section 200 of the Migration Act. His permanent residence visa has not been revoked.
2.3 The complainant served his criminal sentence in the Prison. Upon completion of his sentence on 11 June 2000, he remained in the Prison in immigration detention pursuant to section 253 of the Migration Act until March 2002. He was then transferred to the PIDC, where he currently awaits deportation. Mr XY has thus been in immigration detention awaiting deportation after the expiration of his criminal sentence for approximately 28 months as at the date of this report.
2.4 The complainant claims that he is a "stateless" person who was born in Germany in 1951 of "stateless" parents. He asserts that his father was born in Poland and his mother in Germany. The complainant also claims that his mother was half Jewish. In a letter to the Commission dated 13 December 2000, Mr W J Farmer on behalf of DIMIA stated in relation to the complainant's claim of statelessness, that he "do(es) not accept this claim on face value". However, Mr Farmer refers to the possibility of Germany having obligations in relation to Mr XY "under the Convention on the Reduction of Statelessness" in a letter dated 23 April 2002, and again in a letter dated 25 June 2002. In my view, it is not necessary for me to make a finding as to the complainant's claim of statelessness in order to deal with the complaint before me.
2.5 Since some time before July 1997, the respondent has attempted to negotiate the complainant's deportation to both Poland and Germany. DIMIA has submitted that "some enquires were made with local representatives of both the Polish and German governments" about the possible return of Mr XY prior to the issue of the deportation order in July 1997. I have not been provided with details regarding the nature and extent of these enquiries and this appears to be partly due to the sensitivity of some of the negotiations.
2.6 DIMIA also undertook enquiries to establish whether it was possible for the complainant to be deported to Israel. I accept that DIMIA investigated Mr XY's claim that his mother was half Jewish, and whether there was any possibility of Mr XY being deported to Israel due to a right of nationality he may have had as a descendent of Jewish parents. Although no dates were provided to me by DIMIA relating to the investigation process, I find that these investigations were concluded sometime before December 2000, and I accept that they ceased on the basis that there was no evidence to link Mr XY or his mother to Israel.
2.7 I accept DIMIA's submission in its letter dated 12 February 2001 that enquiries with both the Polish and German governments continued in some form from 1997 until 2001, and that the intervention and assistance of the Department of Foreign Affairs and Trade was sought intermittently during this period. In a letter dated 1 March 2002, the Polish Consulate advised DIMIA that the Polish government could not recognise the complainant as a Polish citizen. DIMIA confirmed in a letter dated 25 June 2002 that the letter from the Polish Consulate led to the cessation of negotiations with the Polish government for Mr XY's deportation to Poland.
2.8 The Commission was provided with copies of email correspondence (sent on various dates beginning 3 August 2001 and ending 14 November 2001) between DIMIA officers in Canberra and DIMIA officers in Berlin which indicated that despite continuing enquires, DIMIA officers in Berlin were making slow, if any, progress in securing talks with the German government in relation to Mr XY's deportation. In an email provided to the Commission, dated 14 November 2001, Ms Angela Staples states that both the German Consulate and German Embassy in Australia were unwilling to act in this matter without instruction from Germany.
When a complaint is received by the Commission, it has the function, pursuant to section 11(1)(f) of the HREOC Act, of inquiring into:
- any act or practice
- that may be inconsistent with or contrary to any human right.
Section 3 of the HREOC Act defines an "act" or "practice" as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth. These words have their ordinary meaning: that is, the noun "act" denotes a thing done and the noun "practice" denotes a course of repeated conduct. 
An "act" or "practice" only invokes the human rights complaints jurisdiction of the Commission where the relevant act or practice is within the discretion of the Commonwealth, its officer or agents. When an action of DIMIA or its officers is required by the Migration Act and there is no discretion involved at all, these actions or practices are outside the scope of the Commission's human rights complaints jurisdiction. 
Bearing this in mind, it is necessary to set out the relevant provisions of the Migration Act that relate to the detention of the complainant. 
Section 200 provides that:
Section 200 Deportation of certain non-citizens
The Minister may order the deportation of a non-citizen to whom this Division applies.
Sections 201 and 206 are in the Division referred to in section 200 and provide as follows:
Section 201 Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes
(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b) when the offence was committed the person was a non-citizen who:
(i) had been in Australia as a permanent resident:
(A) for a period of less than 10 years; or
(B) for periods that, when added together, total less than 10 years; or
(ii) was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:
(A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or
(B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and
(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person
Section 206 Deportation order to be executed
(1) Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly.
(2) The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order.
In relation to the detention of potential deportees, section 253 provides as follows:
Section 253 Detention of deportee
(1) Where an order for the deportation of a person is in force, an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person.
(2) A person detained under subsection (1) or (10) may, subject to this section, be kept in immigration detention or in detention as a deportee in accordance with subsection (8).
(3) Where an officer detains a person under subsection (1) or (10), the officer shall forthwith inform the person of the reason for the detention and shall, if that person so requests, furnish to him or her, as soon as practicable, particulars of the deportation order.
(8) A deportee may be kept in immigration detention or such detention as the Minister or the Secretary directs:
(a) pending deportation, until he or she is placed on board a vessel for deportation;
(b) at any port or place in Australia at which the vessel calls after he or she has been placed on board; or
(c) on board the vessel until its departure from its last port or place of call in Australia.
(9) In spite of anything else in this section, the Minister or the Secretary may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in detention under this section.
(10) An officer may, without warrant, detain a person who:
(a) has been released from detention under subsection (9) subject to conditions; and
(b) has breached any of those conditions.
(11) Nothing contained in, or done under, this section prevents the Supreme Court of a State or Territory or the High Court from ordering the release from detention of a person held in detention under this section where the Court finds that there is no valid deportation order in force in relation to that person.
Section 253 clearly gives the Minister or Secretary a discretionary power in relation to persons in immigration detention. The decision to place Mr XY in immigration detention, and to continue to hold in him in such detention, is therefore a decision that is subject to the Commission's human rights complaints jurisdiction.
In my preliminary findings, dated 27 February 2002, I formed the preliminary view that breaches of Article 9 of the ICCPR had occurred. My stated reasons for this preliminary finding were as follows:
"5.12 There is no evidence that the respondent has considered the possibility that it may not be able to locate an appropriate country of destination and what it will do if this occurs. The respondent is averse to releasing the complainant back into the community because of the nature of his crimes and an alleged threat to harm his ex-wife and her daughter. I note that the respondent has not provided any objective evidence regarding the complainant's likelihood of recidivism or an assessment of the complainant's rehabilitation in prison. In any case, I consider that the complainant has served his custodial sentence, and like anyone else, should be released. The fact that the respondent considers that there is a possibility the complainant may re-offend, is not a legitimate basis for continuing to keep him in custody.
5.13 The Department's primary consideration has been the type of crimes committed by the complainant and the possibility of his presenting himself for deportation if released, as well as the Department's view on his suitability for detention in Immigration Detention Centres. I consider that the complainant continues to be punished for crimes for which he has completed the sentence imposed upon him by the criminal courts.
5.14 I am of the preliminary view that there is no realistic indication that the complainant will be deported soon and thereby released and that his continued detention in Albany Regional Prison is unjust and unreasonable.
5.15 I am of the preliminary view that the continued detention of the complainant in Albany Regional Prison is arbitrary and breaches his human rights pursuant to Article 9(1) of the ICCPR."
The respondent has provided me with written submissions in response to my preliminary findings, and the complainant provided me with further materials in response to my findings. The submissions and materials provided are discussed in detail below.
In a letter dated 23 April 2002, Mr W J Farmer, on behalf of DIMIA, provided the following response to the preliminary findings:
"In my letter to Professor Tay, dated 13 December 2000, I set out in detail my reasons for taking the view that the detention of the complainant is not arbitrary. I maintain that view. The detention of the complainant is pursuant to the exercise of discretionary powers under section 253 of the Migration Act and relates to specific persons against whom deportation orders have been made. Further, subsection 253 (8) (a) indicates that such a discretionary detention be implemented until the person is deported. This section also contains provision for the release of persons from detention at the order of the Minister or Secretary. These clauses give a defined end point to the detention period. Detention is limited to the time the person is removed from Australia or at the stage at which they are released.
The Department has been advised that Poland will not issue the complainant with a certificate confirming his Polish citizenship. However, the Department is continuing negotiations with Germany on the complainant's return to his former country of birth and residence. The complainant clearly has greater family and other ties to Germany than Australia and legal advice from the International Law Section of the Attorney General's Department indicates that Germany may be obligated under the Convention on the Reduction of Statelessness and the European Convention on Nationality to facilitate the complainant's return. These issues are currently being examined and pursued by our office in Berlin.
You would be aware that DIMIA has had other instances where negotiations on the return of deportees have been protracted yet removal has been achieved. The Department is making all efforts to ensure this occurs in the complainant's case in as short a time as possible."
The complainant's solicitor provided an initial response to the preliminary findings in a letter dated 25 April 2002. Enclosed with the letter were two documents; a document addressed to Mr XY referred to as a "German Deportation Order" ("the German Order"), and an English translation of the German document.
The response provided in the letter is as follows:
"With reference to the preliminary finding of the Tribunal President Alice Tay and your invitation for any further submissions, Mr XY respectfully supports the findings and there are no further submissions, which he wishes to make, other than a plea that [the]Commission uses whatever power and influence that it may have to secure his release from indefinite detention and that steps be taken in this regard as soon as possible in view of the length of his detention.
Mr XY has asked me to pass on to the Commission a Deportation Order which he received from Germany in July 2000, which makes it clear that there is no possible point in the DIMIA officers continuing to negotiate with the German authorities. It is not clear from the correspondence that either your Commission, or the relevant DIMIA authorities, have this document. I now enclose a copy of the German original and of the English translation. Please note that page 4 of the German original does not appear to have been translated into English. Mr XY at my request [h]as added an informal translation of page 4."
The German Order was issued by the Town Office of the Hannover Immigration Office, and is dated 26 July 2000. It is discussed in further detail in parts 9 and 10 of this notice. In summary, the English translation of the German Order relevantly states the following:
"During the process of ordering the deportation the public interest in a deportation order and your private interest to live in Germany were to be duely [sic] considered and weighed against each other
Your behaviour demonstrates that you have a high criminal disposition. This makes us fear that you will in future again contravene the law. This risk cannot be expected to be accepted by the public. The deportation is therefore necessary for social-preventative reasons
Your deportation order is for the time being unlimited."
Further information was provided to me by the complainant in a letter dated 7 May 2002. This letter enclosed a copy of a letter to Mr XY from Julie Keenan of Unauthorised Arrivals, DIMIA, dated 2 May 2002, in response to a request made by Mr XY under the Freedom of Information Act 1982 (Cth) ("FOI Act").
Mr XY had made a request to DIMIA on 12 April 2002 for documents to be released to him under provisions of the FOI Act. His request is recorded by Julie Keenan in her letter as being for "the last final decision made in Warsaw Poland to the Australian Immigration Department", and for the "last final decision made in Berlin Germany to the Australian Immigration Department." Ms Keenan stated in her letter:
"I am pleased to advise you that I have decided to release in full a document that is the last final decision made in Warsaw Poland to the Australian Immigration Department. A copy of the document is attached to this letter.
In relation to your request for a document that is the last final decision made in Berlin Germany to the Australian Immigration Department I am refusing your request under section 24A of the Freedom of Information Act 1982 as the document sought does not exist. That is, there has been no final decision by Berlin Germany and negotiations with respect to your return are continuing."
The letter referred to by Ms Keenan as being the last final decision made in Warsaw Poland is a letter dated 1 March 2002 from Mr Dariusz M. Chmief, Polish Consul, of the Consulate General of Poland in Sydney, and was addressed to Mr David Bottrill of Unauthorised Arrivals, DIMIA. The letter states as follows:
"With reference to the above case discussed in your previous correspondence I wish to advise you that the consulate has now received a formal administrative Decision of the Voyvode (Governor) of Mazovia Province, competent in ascertaining Polish citizenship with regard to persons born outside the territory of Poland and never domiciled in Poland, in which the Voyvode refuses to issue the applicant with a Certificate confirming his Polish citizenship.
In view of the documentation produced in this case, the Voyvode finds no grounds to confirm that Mr XY has ever been entitled to Polish citizenship. Neither of his parents can prove that they held Polish citizenship on the date their son was born, and that Mr XY's father was recognised as a Polish citizen when Poland regained Independence in 1918.
In view of the above facts Mr XY cannot be recognised as a Polish citizen."
In the letter accompanying these documents, the complainant's solicitor stated:
"You will see that DIMIA appears to accept that the letter from Poland is final, but it continues to maintain that negotiations with Germany are continuing, notwithstanding the German Deportation Order dated 26 July 2000 previously sent to you."
In light of the materials provided by the complainant in response to the preliminary findings, I formed the view that it was necessary to ask both the complainant and the respondent to provide me with further submissions in relation to issues raised by those documents.
DIMIA provided the following response, dated 25 June 2002, to my invitation for further submissions:
"In relation to the document that Mr XY claims is a "deportation order" I can confirm that a copy of this document was received from Mr XY's solicitor on 25 April 2002. The document has not been authenticated and it does not appear to be accompanied by an official translation. If genuine it appears not to take account of obligations Germany may have to Mr XY on account of his birth in Germany and the German Citizenship of all members of his immediate family. It also does not canvass further obligations Germany may have that stem from the Convention on the Reduction of Statelessness and the International Covenant on Civil and Political Rights.
Mr XY is aware that he faces imprisonment on his return to Germany and may have solicited this document to support his argument that he cannot return to Germany. Despite his strong ties to Germany it is not in his interest to challenge the "deportation order". The document is of interest but has had no impact in relation to DIMIA's on-going negotiations with the German authorities.
In relation to the document from the Polish Consulate dated 1 March 2002 I can confirm that the Department received this document from the Polish Consulate. This document led to the cessation of negotiations with Poland on Mr XY's deportation to Poland."
The following response, dated 1 July 2002, was provided by the complainant's solicitor to my invitation for further submissions:
"Mr XY had had some ongoing correspondence with the German authorities in relation to whether he was still subject to possible charges in Germany. I understand from Mr XY that there is a 10 year limitation period placed on the German authorities in pursuing criminal charges, but that that period is automatically extended during any period when the person is serving a sentence of imprisonment following conviction for a crime. In about May or early June 2000 and in response to a letter written by Mr XY, a reply was received from the German Official Prosecutor (this is not the exact title but Mr XY's best approximation) to the effect that this 10 year limitation period expired on 11 June 2000. Unfortunately, Mr XY no longer has this correspondence. I am instructed that it went missing when his personal possessions had been removed from him and were under the charge of DIMIA or the ACM after his transfer to the Perth Airport Immigration Detention Centre.. In any event, shortly after receiving the letter from the German Official Prosecutor, Mr XY received the Deportation Order (apparently emanating from a different German source). Mr XY denies in any way that he requested or suggested the Deportation Order.
The Deportation Order did not have any covering letter as such. There was an acknowledgement document handed to Mr XY by the Albany Prison authorities , which he was required to sign to say that he had received the Deportation Order and which was retained by the prison authorities (Mr XY is not aware whether the acknowledgement was for their use or for return to the German authorities).
I am not in a position to comment on the legal effect of the Deportation Order. It appears to speak for itself in that as a matter of logic the German authorities will have no interest in accepting back a non-citizen who is the subject of a deportation order. However if there is any real doubt as to its validity or effect, you will need to pursue this with the German authorities.
The Deportation Order contains a provision advising as to the right to appeal within one month of its receipt. This advice is contained in the first paragraph on the last page of the Deportation Order.
Mr XY did not seek to appeal the Deportation Order, he did not believe that any appeal could be justified, or have any prospects of success and the German authorities had previously made it very clear that quite apart from this Deportation Order they had no intention of allowing him to return to Germany."
As stated above, Mr XY alleges that his continuing detention, and the indeterminate nature of that detention whilst awaiting deportation, constitutes a breach of article 9 of the ICCPR.
The right in article 9(1) extends to all deprivations of liberty, whether in criminal cases or in matters concerning immigration.  The Human Rights Committee has on a number of occasions found detention following the expiration of a criminal sentence to amount to a breach of article 9(1). 
The reference to arbitrariness in article 9(1) imposes a separate and distinct limitation on detention to the requirement that the detention be lawful. When the article was drafted, it was clear that the meaning of "arbitrary" contained elements of injustice, unpredictability, unreasonableness, capriciousness and unproportionality, as well as the common law principle of due process of law.  In A v Australia  the Human Rights Committee stated that detention was arbitrary if it was "not necessary in all the circumstances of the case" and if it was not a proportionate means to achieving a legitimate aim. They further stated in Spakmo v Norway  that to comply with article 9, an action "must not only be lawful, but also reasonable and necessary in all the circumstances."
The Human Rights Committee in Van Alphen v The Netherlands  confirmed that there are various factors which may render an otherwise lawful detention arbitrary. It said that:
"arbitrariness is not to be equated with "against the law" but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime."
Furthermore, the jurisprudence of the Human Rights Committee has established that even if the initial detention is not arbitrary, a subsequent period of detention may become arbitrary; for example, when one has regard to the length of the detention. 
The central question to which I must determine the answer is whether the complainant is being subjected to arbitrary detention within the scope of article 9 of the ICCPR, or, as referred to in the recent case of Luu v Minister for Immigration and Multicultural Affairs  FCA 1136 ("Luu"), whether he is in indeterminate detention. The Luu case concerned an application by Mr Luu for orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of two decisions of the respondent Minister relating to Mr Luu's continuing detention pursuant to section 253(9) of the Migration Act. If a person is found to be in indeterminate detention, then as Marshall J in the Luu case stated,  "it can fairly readily be accepted that indeterminate detention would usually breach" a number of articles of the ICCPR, in particular:
"Indeterminate detention can be considered 'arbitrary' and therefore prohibited under Art 9(1): See Van Alphen v The Netherlands UNHCR 305/88 at [5.4] where it was held arbitrariness "is not to be equated with 'against the law', but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability."" 
Marshall J considered carefully the question of whether Mr Luu was in indeterminate detention at the date on which the Minister had decided not to release Mr Luu and not to revoke a deportation order issued against him. He stated as follows:
"In my opinion, the effect of the decision of the Minister at 12 March 2001 was not to place Mr Luu in indeterminate [detention] because the Minister was able to give a reasonably specific approximation of when Mr Luu was likely to be deported. Clearly, such an approximation must be supported by evidence confirming its likelihood. If the evidence showed that the Vietnamese government had refused to enter into negotiations or if negotiations appeared to have stagnated, the Minister's approximation that an MOU [Memorandum of Understanding] was likely to conclude would be unfounded and his decision may well have had the effect of keeping Mr Luu in indeterminate detention. However, in the circumstances, the evidence before the Minister suggested that negotiations between Vietnam and Australia had progressed. On this basis the Minister found it was likely that an MOU would be concluded by the end of the year. I am in no position to dispute this finding. As noted above I have not addressed whether a decision made by the Minister prior to 12 March 2001 would have been a decision that had the effect of keeping Mr Luu in indeterminate detention.
It follows that as the Minister's decision at 12 March 2001 did not have the effect of keeping Mr Luu in indeterminate detention, the decision did not contravene the ICCPR in this regard." 
Although Mr Luu's circumstances are similar to that of the complainant in the matter before me, there is one crucial differentiating factor. In the case of Mr Luu, there was a single country to which his deportation was sought, that country being Vietnam. There were firm negotiations taking place between the Australian and Vietnamese governments which involved the finalisation of a Memorandum of Understanding between the two countries which would facilitate the return of Vietnamese nationals to Vietnam. That situation is different to that of Mr XY's circumstances, as there is no evidence in the matter before me that negotiations between Australia and Poland or Germany have reached a stage where the Minister is able to give a reasonably specific approximation of when Mr XY is likely to be deported. In the case of Poland, DIMIA have stated that negotiations with the Polish government regarding Mr XY's deportation have ceased. In the case of Germany, at no stage have DIMIA been able to indicate the precise content and nature of negotiations with the German government, nor give any indication as to when these negotiations may have an end point. This difference in factual circumstances is crucial to the potential application of the decision in Luu to Mr XY's situation, as the impending conclusion of the MOU was a fundamental element in Marshall J's reasoning that Mr Luu's detention was not arbitrary and thus not a breach of article 9 of the ICCPR. 
The circumstances of the applicant in Perez v Minister for Immigration and Multicultural Affairs  FCA 1342 are, however, analogous to that of the complainant in this matter. In that case, DIMIA was unable to secure a country to which Mr Perez could be deported. Madgwick J considered the situation in which a person is detained where there are no prospects of deportation occurring. His Honour said that delay in the execution of a deportation order does not invalidate the order itself but that the "prospect of a long delay" is not irrelevant to its validity. His Honour said that:
" the principal purpose of and justification for the making of a deportation order is to effect the proposed deportation of the person. If it were plain that there was no prospect of effecting the deportation within a reasonable period, there might be no justification for the making of the order and the conclusion might be invited that the power to make the order was being exercised for some extraneous and legally improper purpose. Further, upon its later becoming apparent, after the regular making of an order, that events revealed a practical impossibility in actually effecting the deportation, questions of the Minister having a legal duty to revoke the order might arise . Nevertheless, delay on its own may be a less alarming matter than the likelihood that a practical consequence of the making of the deportation order will be indeterminate detention, in the sense of detention for a long period or an unknown period that is not acceptably short (emphasis added)." 
His Honour continued:
"Administrative detention for a long or indefinite period, except in cases of utter urgency or necessity, is abhorrent to our legal and political traditions and to international conceptions of human rights for which Australia has signified our respect by entering into treaties." 
He further commented that "some delay in effectuating a deportation order may be unavoidable. But indeterminate administrative detention is a very different thing".  In considering whether there was a clear legislative mandate for administrative detention of an unacceptable duration, Madgwick J construed the Migration Act in the light of Australia's international obligations, including article 9 of the ICCPR.
Madgwick J gives some guidance as to what will be a "reasonable prospect of the deportation order being effectuated within a reasonable time".  This must be considered in all the circumstances and a "commonsense appreciation of practicalities" should be brought to bear. One relevant matter will be "justified expectations, based on past dealings with a proposed deportee's country of nationality, about reasonably prompt effectuation of the deportation".  Subsection (8) of section 253 requires a "real chance of a reasonably imminent deportation, as distinct from a merely theoretical or insubstantial possibility of a deportation or a deportation that can only occur at some time far into the future".  Further, subsection (9) is an "active source of the Minister's power to prevent injustice".  The likelihood of indeterminate detention is an important matter affecting the merits of a decision to make a deportation order. 
The Federal Court also considered the issue of indeterminate detention in Vo v Minister for Immigration and Multicultural Affairs  FCA 1845. Mr Vo was a Vietnamese national, who was also being held in immigration detention pending the finalisation of the MOU with Vietnam. Tamberlin J considered a challenge to decisions to continue to detain Mr Vo under section 253 of the Migration Act. His Honour took the view that the reasonableness of Minister's decision not to release Mr Vo was supported by the evidence presented to him at the hearing about the ongoing negotiations with the Vietnamese Government which "make(s) it clear that the negotiations for issue of the travel documents to enable the deportation to be implemented will probably be finalised within the next few months". His Honour thought that "the likely outcome will be the deportation of the applicant within the next few months as a result of the strenuous efforts and determined policy of the Australian Government to have the applicant deported" and that the evidence indicated that a decision is expected to be taken by the Vietnamese authorities by mid-February 2000.
On appeal to the Full Federal Court in Vo v Minister for Immigration and Multicultural Affairs  FCA 803, the Full Court considered the comments of Madgwick J in Perez and agreed that the matters raised by his Honour did go to the merits of a decision under section 253(9). However, the Court said that the length of detention cannot in itself destroy the legal validity of the detention.
In Perez v Minister for Immigration and Multicultural Affairs  FCA 450 Allsop J considered whether there is a time limit on the Minister's power to detain for the purposes of deportation under sections 200 and 253(8) of the Migration Act. Allsop J (at [104 - ) regarded himself as bound to apply the decision of the Full Federal court in Vo.
These issues were most recently raised in Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs . Mr Al Masri was detained pursuant to a different regime to that of Mr XY under the Migration Act (being Division 7 of Part 2) and in particular, was detained pursuant to section 196(1)(a), which regulates the detention of unlawful non-citizens awaiting deportation. The central issue in Al Masri was whether the applicant's lawful detention under section 196 had become unlawful because it was no longer authorised by the Act, taking into account the "purposive and temporal limitations on the power to detain in sections 196(1)(a) and 198".  Merkel stated  that these sections are to be construed as authorising detention only for so long as:
"* the Minister is taking all reasonable steps to secure the removal from Australia of a removee as soon as is reasonably practicable;
* the removal of the removee from Australia is "reasonably practicable", in the sense that there must be a real likelihood or prospect of removal in the reasonably foreseeable future.
If a court is satisfied that the Minister is not taking "all reasonable steps" or that removal is "not reasonably practicable" the implicit limitations on the detention power will not have been complied with or met and continued detention of the removee will no longer be authorised by the Act."
He further stated:
"The situation is that each of the countries to which the Minister seeks to remove the applicant: Israel, Jordan, Egypt and Syria, have refused to accede to the Department's requests for permission for the applicant's entry. Notwithstanding continuing communications between the Department and Israeli officials there is no indication that there is a real prospect or likelihood of Israel agreeing to alter its unequivocal refusal to permit the applicant to enter Israel. In all the circumstances I am prepared to more readily and confidently infer that at the present time there is no real prospect or likelihood of the Minister being able to remove the applicant from Australia in the reasonably foreseeable future. Accordingly, I have concluded that the Minister has failed to discharge the burden imposed upon him to prove that the continued detention of the applicant is lawful. Consequently, the applicant's continued detention is unlawful."
Merkel J ordered the release of Mr Al Masri on the basis that his continued detention was unlawful. 
In considering Mr XY's complaint that his detention breaches article 9 of the ICCPR, I must first determine whether his detention can be viewed as arbitrary or, as Marshall J in Luu referred to it, whether his detention can be viewed as "indeterminate". To make such a determination, according to Marshall J's reasoning in Luu, I must consider the following questions:
- can DIMIA give a "reasonably specific approximation" of when Mr XY is likely to be deported?
- if such an approximation can be given, is it supported by evidence confirming its likelihood?
- does the evidence show that negotiations for Mr XY's deportation "appear to have stagnated", or that the relevant governments have "refused to enter into" negotiations"?
The evidence before me indicates that some time during 2001, the focus of DIMIA's attempts to negotiate Mr XY's deportation were on Germany rather than Poland, and I came to the preliminary view that DIMIA appeared to have abandoned its efforts to have the complainant removed to Poland. This view has since been confirmed in a letter from DIMIA to the Commission dated 25 June 2002 in which it was stated that negotiations with the Polish government to secure Mr XY's deportation to Poland had ceased. It is therefore necessary for me to consider the negotiations for the deportation of Mr XY to Germany.
In doing so, I note that in DIMIA's initial response to the complaint, dated 13 December 2000, DIMIA indicated that the "(r)emoval of Mr XY is now dependant on the actions of the Polish authorities in issuing a travel document or evidence of authority to enter and reside in Poland." DIMIA also stated that "(g)iven the advanced state of dealings with Poland on this matter it is not intended to release (sic) Mr XY before his removal from Australia". DIMIA continue "(i)n respect of the complainant, we believe that it is probable that the Government of Poland will recognise its obligations." From the evidence before me, it appears that most of DIMIA's negotiations to secure Mr XY's deportation were, at the time of issue of Mr XY's deportation order in 1997 and until at least June 2001, concentrated on securing his deportation to Poland. The correspondence of 21 February 2002 revealed that at some stage between 12 February 2001, and November 2001, DIMIA had shifted the focus of its negotiations regarding Mr XY's deportation to the German government.
A "reasonably specific approximation" of when Mr XY is likely to be deported?
Letters from DIMIA to the Commission dated 23 April 2002 and 25 June 2002 refer to "on-going" negotiations with the German government. However, the Commission has not been provided with any form of approximation as to when Mr XY's deportation to Germany may occur.
Is there any evidence confirming the likelihood of deportation?
In DIMIA's initial response to Mr XY's complaint dated 13 December 2000 the following was stated:
"Advice from the German Embassy on 2 June 2000 was that there was "no legal entitlement to issue any travel document for Mr XY" as he had "lost his status as a "homeless alien"."
The only evidence I have been provided with regarding negotiations for Mr XY's possible deportation to Germany are the emails between DIMIA officers in Berlin and Canberra referred to above in 2.8. Those emails do not provide me with any evidence that the German government had at any stage entered into negotiations with DIMIA. Rather, they detail attempts by DIMIA officers to contact German authorities to commence negotiations. Letters from DIMIA to the Commission dated 23 April 2002 and 25 June 2002 refer to "on-going" negotiations with the German government, and do not make any submissions on the likelihood of Mr XY's deportation to Germany.
Mention was also made in those letters of possible obligations Germany may have under the Convention on the Reduction of Statelessness and the ICCPR. However, DIMIA has not referred me to any particular articles of the Convention or the ICCPR and there is no evidence that these contentions have been made to German authorities. In my view, there is no evidence to confirm the likelihood of Mr XY's deportation to Germany.
Mention should also be made of the "Deportation Order" received by Mr XY from German authorities. DIMIA appears to have some reservations about the authenticity of the document, and have stated that it has no impact on their negotiations with the German authorities. As there is a dispute about the effect that the document has, I have not placed any reliance on the document in my findings. However, I note that if the document is genuine, it could be regarded as further evidence that there is little likelihood of the complainant being deported to Germany.
Do negotiations "appear to have stagnated", or do the relevant governments appear to have "refused to enter into" negotiations?
Butterworths Australian Legal Dictionary defines "negotiation" as "generally, mutual discussion and arrangement of the terms of a transaction or agreement." There is a mutual element to the term, and thus efforts made by DIMIA to secure the complainant's deportation must go beyond mere enquiries and into mutual discussion of the terms of an agreement to be classified as negotiations. I have not been provided with any evidence to indicate that this stage has been reached. The emails referred to above show an attempt by DIMIA officials in Berlin to contact German authorities in order to commence negotiations. I accept that DIMIA have made attempts in good faith (and it is likely they have made numerous attempts) to engage the German authorities in negotiations. However I have not been provided with any evidence to show that those attempts and enquiries have led to a result that allows me to make a finding that negotiations have ensued from such enquiries.
However, even if I were to be satisfied that negotiations have taken place, the evidence before me suggests that, at best, negotiations between DIMIA and the German government have stagnated. There is no evidence at all before me to suggest that negotiations have progressed since enquiries were initiated approximately five years ago. In a letter to the Commission dated 23 April 2002, DIMIA stated that, "the Department is continuing negotiations with Germany". No details of these negotiations or their status was given, however DIMIA referred to possible obligations Germany may have under the Convention on the Reduction of Statelessness and the European Convention on Nationality which were being "examined and perused" by their Berlin office. In a letter dated 25 June 2002, DIMIA again stated that they had "on-going" negotiations with the German authorities. However, I have no evidence before me to suggest that the German government has ever given any indication that they will enter into any negotiations to consider Mr XY's deportation to Germany.
I thus find that negotiations with Germany, if ever entered into by the German government, have stagnated, and there is no evidence to confirm the likelihood of Mr XY's deportation to that country. I am therefore of the view that Mr XY's detention has been indeterminate since some time in 2001, and most certainly was indeterminate by March 2002, when the Polish government confirmed that it would not accept Mr XY.
As I have found that Mr XY's detention is indeterminate, I must now determine whether it can be viewed as "arbitrary", and thus in breach of article 9 of the ICCPR. As discussed in 9.2, Marshall J noted in Luu that
"indeterminate detention can be considered 'arbitrary' and therefore prohibited under Art 9(1): See Van Alphen v The Netherlands UNHCR 305/88 at [5.4] where it was held arbitrariness "is not to be equated with 'against the law', but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability." 
It is my view that Mr XY's continuing detention is inappropriate, unjust, and in particular, lacking predictability. I therefore find that Mr XY's continued detention is arbitrary, and is in breach of article 9 of the ICCPR.
Because of the findings that I have made about the arbitrary nature of Mr XY's detention, it is not necessary for me, in the circumstances of this particular case, to consider the impact of the Al-Masri decision (which dealt with different provisions of the Migration Act) to this matter.
Section 29(2)(b) of the HREOC Act requires that, where I conclude that an act or practice is inconsistent with or contrary to any human right, I should make findings to that effect and recommendations for preventing a repetition of the act or a continuation of the practice. Section 29(2)(c) of the HREOC Act states that I may also include recommendations for either or both of the following:
(i) the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice;
(ii) the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice
In the process of finalising this inquiry, it came to my attention that the parties had not made submissions on the issues of:
- what recommendations (if any) I should make in the event I affirmed some or all of my preliminary findings; and
- to the extent that any such recommendations included a recommendation for the payment of compensation, how such compensation should be quantified.
Therefore I wrote to the parties, on 29 July 2002, seeking submissions on the above issues. The complainant's submissions were provided to me in accordance with the timetable.
The respondent's submissions were originally due on 26 August 2002. The respondent sought and was granted an extension for those submissions such that they were due on 6 September 2002. The submissions were not received by 6 September 2002. On 10 September 2002, the Department was advised by letter that the Commission intended to finalise this inquiry, regardless of whether those submissions were provided. On 18 September 2002, I received a letter from the Department stating that as they are of the view that there has been no breach of article 9 in this matter, submissions on possible recommendations were not necessary.
In a letter dated 12 August 2002, the following submissions were made on behalf Mr XY in relation to a possible recommendation for his release:
"In relation to the Commissioner's recommendation, I submit that the Minister clearly has the power under s253 (9) of the Migration Act, which section concerns the detention of deportees:
"In spite of anything else in this section, the Minister or the Secretary may at any time order the release (either unconditionally or subject to specified conditions) of a person who is detention under this section."
Clearly therefore Mr XY having completed his prison sentence and there being a continuing breach of the Human Rights and Equal Opportunities Act 1986, the continuing breach can be easily remedied simply by releasing Mr XY on reasonable reporting conditions. This does not in anyway prejudice the DlMA position that if deportation becomes a practical reality at some time in the future, the Deportation Order can be enforced at that time. The first recommendation should therefore be that the Mr XY be released immediately."
In the letter dated 12 August 2002, submissions were also made on behalf of Mr XY in relation to a possible recommendation for financial compensation:
"He (Mr XY) has continued in immigration detention for a full 2 years simply because and only by reason of the deportation order. He should be compensated for this deprivation of liberty for at least this 2 year period. Loss of liberty is a grievous penalty to anyone, especially when it can not be justified. This is not a case where it is the foreign country which has been difficult or caused the delays, the documents show the delays are all on the Department's part. There are no repeated requests for a response which go unanswered. The Department could easily have made its enquiries in 1996 and early 1997 (sic) discovered that Mr XY could not be deported and not issued a deportation order. Even then between 1997 and 2000 no reasonable concerted attempt was made to obtain a definite decision from any country which might possibly accept Mr XY and in reality there were only 2 possible countries namely Germany and Poland. I therefore submit that it is appropriate to recommend compensation. The Commissioner may well consider that this is a case that if a civil claim could have been brought (it cannot because of the provisions of the Migration Act), aggravated damages might properly be awarded because of the deliberate acts of the Department."
The submissions then went on to cite a number of cases where damages had been awarded for false imprisonment,  wrongful arrest  and incorrect calculation of sentence.  The damages awarded in these cases include compensatory, exemplary and aggravated damages. It was further submitted:
"Mr XY has been held for at least 2 years totally unnecessarily. In those circumstances, in my submission, the compensation for 2 years loss of liberty should be in excess of $100,000. The recommended compensation should be significantly higher if the Commissioner accepts that the Department has behaved in a matter which, in a civil jurisdiction, would have justified an award of aggravated or exemplary damages."
As I have found that Mr XY's continued detention is arbitrary, I recommend that the Minster exercise his discretion under s253(9) of the Migration Act and release Mr XY from immigration until his deportation is secured.
So far as is possible by a recommendation for compensation, the object should be to place the injured party in the same position as if the wrong or wrongs had not occurred.  Compensation for human rights violations will usually be assessed in the same way as damages for torts, although this approach may not be appropriate in all cases.  In my view, the tort of false imprisonment is the most analagous to this matter, and that any recommendation for compensation should be informed by the principles employed by the courts in cases involving that tort. 
The tort of false imprisonment is actionable per se, that is, without proof of damage  as the right to liberty is "the most elementary and important of all common law rights".  Damages are awarded in the first instance not as compensation for loss but as a non-compensatory means of signifying the infringement of a right.  The principal heads of damage for a tort of this nature are injury to liberty (the loss of time considered primarily from a non-pecuniary standpoint) and injury to feelings (the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status).  Damages may also be aggravated by the circumstances of a particular case,  for example, where a lack of bona fides or improper or unjustifiable conduct on the part of a respondent is established. 
On the basis of the material before me, I am of the view that an appropriate amount of compensation for Mr XY for the violation of his rights under article 9(1) of the ICCPR is $45,000. In arriving at that figure, I have had regard to the following:
- the length of time that the complainant has been detained without a real prospect or likelihood of deportation to Poland or Germany (as stated above, since some time in 2001 and certainly, in relation to Poland, by March 2002)
- that part of this time was spent in a maximum security prison 
- the mental suffering caused by the length of detention awaiting deportation
I am not of the view that the circumstances of this case warrant an award of aggravated damages as suggested by the complainant.
I therefore recommend that the respondent pay to Mr XY the amount of $45,000 by way of compensation.
Under section 29(2)(e)
of the HREOC Act the Commission is required to state in its report to
the Attorney-General whether, to the knowledge of the Commission, the
respondent has taken or is taking any action as a result of its findings
On 23 September 2002, the Commission wrote to the Department to seek its advice as to what action it had taken or proposed to take as a result of the findings and recommendations. In a letter to the Commission dated 8 October 2002, Mr E V Killesteyn, on behalf of the Department, provided the Department's comments in relation to those findings and recommendations. Mr Killesteyn stated that as the Department did not accept the findings made in my notice of 23 September 2002, the Department did not propose to take any action on the basis of my findings or recommendations.
Functions of the Human Rights and Equal Opportunity Commission
The Commission has specific legislative functions and responsibilities for the protection and promotion of human rights under the HREOC Act. Part II Divisions 2 and 3 of the HREOC Act confer functions on the Commission in relation to human rights. In particular, section 11(1)(f) of the HREOC Act empowers the Commission to inquire into acts or practices of the Commonwealth that may be inconsistent with or contrary to the rights set out in the human rights instruments scheduled to or declared under the HREOC Act.
Section 11(1)(f) of the HREOC Act states:
(1) The functions of the Commission are:
(f) to inquire into any act or practice that may be inconsistent with or contrary to any human right, and:
(i) where the Commission considers it appropriate to do so to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and
(ii) where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement to report to the Minister in relation to the inquiry.
Section 3 of the HREOC Act defines an "act" or "practice" as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth.
The Commission performs the functions referred to in section 11(1)(f) of the HREOC Act upon the Attorney-General's request, when a complaint is made in writing or when the Commission regards it desirable to do so (section 20(1) of the HREOC Act).
In addition, the Commission is obliged to perform all of its functions in accordance with the principles set out in section 10A of the HREOC Act, namely with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights.
The Commission attempts to resolve complaints under the provisions of the HREOC Act through the process of conciliation. Where conciliation is not successful or not appropriate and the Commission is of the opinion that an act or practice constitutes a breach of human rights, the Commission shall not furnish a report to the Attorney-General until it has given the respondent to the complaint an opportunity to make written and/or oral submissions in relation to the complaint (section 27 of the HREOC Act).
If, after the inquiry, the Commission finds a breach of human rights, it must serve a notice on the person doing the act or engaging in the practice setting out the findings and the reasons for those findings (section 29(2)(a) of the HREOC Act). The Commission may make recommendations for preventing a repetition of the act or practice, the payment of compensation or any other action or remedy to reduce the loss or damage suffered as a result of the breach of a person's human rights (sections 29(2)(b) and (c) of the HREOC Act).
If the Commission finds a breach of human rights and it furnishes a report on the matter to the Attorney-General, the Commission is to include in the report particulars of any recommendations made in the notice and details of any actions that the person is taking as a result of the findings and recommendations of the Commission (sections 29(2)(d) and (e) of the HREOC Act). The Attorney-General must table the report in both Houses of Federal Parliament within 15 sitting days in accordance with section 46 of the HREOC Act.
It should be noted that the Commission has a discretion to cease inquiry into an act or practice in certain circumstances (section 20(2) of the HREOC Act), including where the subject matter of the complaint has already been adequately dealt with by the Commission (section 20(2)(c)(v) of the HREOC Act).
1. The Commission's functions in relation to the investigation and conciliation of complaints of human rights breaches against the Commonwealth of Australia and its functions in relation to reporting on complaints with substance that have not been resolved through the process of conciliation are outlined in Appendix 1.
2. The Commission recently examined the issue of indeterminate detention and the scope of article 9 in HRC Report No.13, Report of an inquiry into a complaint of acts or practices inconsistent with or contrary to human rights (also available at www.humanrights.gov.au/human_rights/index.html), tabled in the House of Representatives on 26 June 2001.
6. Human Rights Committee, CCPR General Comment 8, 30/7/1982, para 1. See also discussion in Human Rights and Equal Opportunity Commission Those who've come across the seas: detention of unauthorised arrivals, 1998 at 46.
16. It should be noted that the decision of Marshall J was appealed by Mr Luu. The Full Court of the Federal Court heard the appeal on 12 November 2001, and their decision is still reserved as at the date of this report.
24. The position of Mr Perez was further considered by Allsop J in Perez v Minister for Immigration and Multicultural Affairs  FCA 450 (12 April 2002). This matter involved an application by Mr Perez under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of a decision made by the Department not to release Mr Perez. Allsop J remitted the matter to the Department for reconsideration, as the Department did not, inter alia, "consider the matter from the position that no one could say when he might be able to be returned to Cuba". In his view, the fact that the time of Mr Perez's return was, at best, at some indefinite point in the future, should have been a crucial consideration in the Department's considerations as to whether Mr Perez's deportation order should be revoked, or he should be released.
33. Hall v A & A Sheiban Pty Limited (1989) 20 FCR 217 per Lockhart J at 239; Commonwealth of Australia v Human Rights and Equal Opportunity Commission  FCA 1150 (17 August 2000), per Wilcox J at .
35. See Walter Vignoli v Sydney Harbour Casino  NSWSC 1113; Spautz v Butterworth & Anor (93040240) 12 December 1996; Sadler & State of Victoria v Madigan  VSCA 53; Cowell v Corrective Services Commission (1988) 13 NSWLR 714.
37. Trobridge v Hardy (1955) 94 CLR 147, per Fullagar J at 152; Murray v Ministry of Defence  1 WLR 692 at 701 - 702; Re Bolton; Ex parte Beane (1987) 162 CLR 514, per Brennan J at 523; and Sadler & State of Victoria v Madigan  VSCA 53 (1 October 1998) at .
39. Cassell & Co Ltd v Broome (1972) AC 1027 at 1124; Spautz v Butterworth & Anor (1996) 41 NSWLR 1 per Clarke JA; Vignoli v Sydney Harbour Casino  NSWSC 113 (22 November 1999], at ; McGregor on Damages (5th ed, 1988), at para 1619.