HREOC Report No.15

Report of an inquiry into a complaint by Ms Elizabeth Ching concerning the cancellation of her visa on arrival in Australia and subsequent mandatory detention

HREOC Report No.15

Contents

1. INTRODUCTION

2. FINDINGS OF FACT

3. RELEVANT PROVISIONS OF THE MIGRATION ACT

4. PRELIMINARY FINDINGS

5. THE COMPLAINANT'S RESPONSE TO THE PRELIMINARY FINDINGS

6. DIMA'S RESPONSE TO THE PRELIMINARY FINDINGS

7. ARTICLE 13 - PROCEDURAL RIGHTS AGAINST EXPULSION

8. ARTICLE 10(1) AND 10(2)(a)

9. NOTICE OF FINDINGS

10. RECOMMENDATIONS

11. NOTICE OF RECOMMENDATIONS

APPENDIX A: FUNCTIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

APPENDIX B: EXTRACT FROM PRELIMINARY REPORT OF COMMISSIONER SIDOTI DATED 22 JUNE 2000

1. Introduction

This report to the Attorney-General concerns an inquiry by the Human Rights and Equal Opportunity Commission ("the Commission") into a complaint made by Ms Erlinda May on behalf of her sister, Ms Elizabeth Ching, on 26 August 1998. The complaint is against the Commonwealth of Australia (Department of Immigration and Multicultural Affairs) ("DIMA") under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOCA"). The complaint was made pursuant to section 20(1)(b) of 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.

1.1 The Commission's jurisdiction

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 A to this report.

1.2 Outline of complaint and the inquiry process

In summary, Ms Ching alleges that her human rights were breached when she was:

  • questioned by immigration officials on her arrival at Brisbane Airport on 24 May 1998 and subsequently had her visa cancelled pursuant to the Migration Act 1958 (Cth) ("the Migration Act"); and
  • taken into custody and detained at the Brisbane Women's Correctional Centre ("BWCC") from 24 to 26 May 1998 until her removal from Australia to the Philippines on 26 May 1998.

The complaint was investigated by the then Human Rights Commissioner, Mr Chris Sidoti, pursuant to section 11(1)(f) of the HREOCA and conciliation was attempted. However, agreement was not able to be reached and Commissioner Sidoti formed the view that these matters were not amenable to conciliation.

Commissioner Sidoti provided a preliminary report to the parties dated 22 June 2000 which outlined his preliminary findings in relation to the complaint. An extract from this report is at Appendix B to this report [1]. In summary, the preliminary findings were that DIMA, on behalf of the Commonwealth of Australia, had breached Ms Ching's human rights in a number of respects and that violations of articles 10(1), 10(2)(a) and 13 of the International Covenant on Civil and Political Rights ("ICCPR") had occurred. These Articles state as follows:

Article 10

1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; …

Article 13

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

Both the complainant and respondent have provided written submissions to the Commission in response to Commissioner Sidoti's preliminary findings. These written submissions are outlined in further detail below.

I also note that Commissioner Sidoti's appointment as the Human Rights Commissioner came to an end on 13 August 2000 and on 24 July 2000 he delegated his powers and duties in relation to this matter to me pursuant to section 19(2) of the HREOCA. This delegation came into operation on 13 August 2000.

1.3 Findings and recommendations

On 28 August 2001, I issued a notice of my findings and recommendations in relation to the complaint under section 29(2) of the HREOCA. I found as follows:

1. That the act by an officer of DIMA of requiring Ms Ching to provide a response to the notification of the likely cancellation of her visa within a period of 10 minutes was in breach of the requirement in article 13 of the ICCPR that she be allowed to submit the reasons against her expulsion and therefore amounted to an act which was inconsistent with or contrary to her human rights under the HREOCA.

2. The act by an officer of DIMA not to advise Ms Ching that she was able to seek legal advice or assistance had the effect that Ms Ching was not able to exercise her rights pursuant to article 13 of the ICCPR to have her case reviewed before a competent authority and to be represented for the purpose of having her case reviewed before a competent authority and therefore amounted to an act which was inconsistent with or contrary to her human rights under the HREOCA.

I made the following recommendations directed to preventing further acts or practices such as those in this complaint:

1. When the Minister, or his or her Delegate, is considering cancelling a visa pursuant to section 116 of the Migration Act and the visa holder is invited, pursuant to section 119(1)(b), to show within a specified time that the grounds for cancellation do not exist or there is a reason why the visa should not be cancelled, then the time for response specified should be reasonable, taking carefully into account the personal circumstances of the visa holder, for example, whether or not English is their first language, whether they require the assistance of an interpreter, whether they indicate that they understand the reasons given for cancellation and whether any claims made by the visa holder could be verified by contacting any other person.

2. If the visa holder requires access to an interpreter, the visa holder should have the opportunity to spend as much time with the interpreter as is required by the visa holder in order to have fully explained to them the reasons for the proposed cancellation and for the interpreter to fully obtain the visa holder's response.

3. The Migration Act should be amended to require the Minister, or his or her Delegate, to advise the visa holder that the visa holder has a right to access independent legal advice and to provide the visa holder with an opportunity to access such legal advice.

I also recommended that DIMA pay Ms Ching the sum of $2000 by way of compensation for the damages she suffered as a result of the human rights violations to which she was subjected.

1.4 Actions taken by the respondent as a result of the findings and recommendations

Under section 29(2)(e) of the HREOCA the Commission is required to state in its report to the Attorney-General whether the respondent has taken or is taking any action as a result of its findings and recommendations.

On 28 August 2001, the Commission wrote to DIMA 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 5 October 2001, Mr W J Farmer, on behalf of DIMA, advised as follows:

I refer to the final Human Rights and Equal Opportunity Commission (HREOC) report regarding a complaint lodged by Ms Erlinda May on behalf of Ms Elizabeth Ching. I have been asked to comment on action the Department intends to take action as a result of the findings and recommendations contained in the final report.

Recommendation 1 in the Notice of Recommendations proposes that when visa cancellation is contemplated, the time provided by a decision-maker to the visa holder to respond should be reasonable; take account of the person's requirement for an interpreter; and, that decision-makers verify with third parties, any claims forwarded by people whose visa is subject to cancellation.

Section 119 of the Act requires decision-makers to ascertain that the grounds for cancellation do appear to exist prior to notifying the person of the intention to cancel the visa. In Ms Ching's case, she was placed in questioning detention at 10.05am and the notice of intention to cancel the visa was provided to her orally at 11.03am. During the 58 minute interview with Ms Ching, the decision-maker was satisfied that the grounds for cancelling her visa appeared to exist. Ms Ching was then provided with a 10 minute period in which to consider and then provide reasons why the grounds did not exist or reasons that her visa should not be cancelled. After 10 minutes consideration, Ms Ching provided a response which indicated that she clearly understood the issues involved. This view is supported by Ms Ching in correspondence forwarded to the Department by HREOC on 25 November 1999. In that correspondence, Ms Ching states that she was not having difficulty understanding [the officer's] alleged attempt to inform me that he was considering cancelling my visa. Furthermore, in correspondence dated 26 May 1998, Ms Ching indicates that she did not require the services of an interpreter and only acquiesced to the use of an interpreter because she thought it would expedite the interview.

There is no information before the Department, that Ms Ching felt that the 10 minutes was insufficient time for her to consider her response to the notice of intention to cancel her visa or, that her needs as person whose first language is not English were not taken into account.

Moreover, the current Departmental instructions (MSI 328 - Visa Cancellation under sections 109, 116, 128 and 140) indicate that officers should be flexible and aware of the circumstances of each case when determining the period in which to respond to a notice of intention to cancel a visa. In light of these factors, I consider that decision-makers are already cognisant that the reasonable time for the response should provide for these factors.

Recommendation 1 of the Notice of Recommendations also proposes that decision-makers verify with third parties any claims forwarded by that person. Decision-makers can and often do seek verification from third parties if they consider it is needed. It would seem that the decision-maker, on this occasion, was satisfied that the information provided by Mrs Ching was sufficient. That is, to his mind, he did not require verification of Ms Ching's claim by a third party.

As decision-makers do have the right to seek verification from third parties if they consider that it is necessary as part of the assessment, I do not intend to act further regarding this part of recommendation 1.

Recommendation 2 of the Notice of Recommendations, proposes that the visa holder should have the opportunity to spend as much time with an interpreter as the visa holder requires in order that the reasons for the proposed cancellation are fully explained and for the interpreter to fully obtain the visa holder's response.

When possible, the Department uses accredited interpreters. Departmental officers determine at the commencement of an interview if an interpreter may be required. Accordingly, Ms Ching was offered the use of an interpreter very early in the interview. If the person refuses, as did Ms Ching, it is usual for the officer to remind the person that they can ask for an interpreter at any time. The services of an interpreter are available to Departmental clients for as long as the person requires them. The Department pays for this service. Accredited interpreters faithfully interpret what is said by the interviewer and the interviewee's responses. They should not venture explanations that are not sought, add to or detract from either parties' message.

Recommendation 2, is at odds with the claims forwarded by Ms Ching. As mentioned earlier, in correspondence forwarded to the Department by HREOC (dated 25 November 1999), Ms Ching states: I was not having difficultly understanding [the officer's] alleged attempt to inform me that he was considering cancelling my visa.

Based on the information before the Department, Ms Ching has not forwarded claims that she was dissatisfied with:

  • the standard of interpreting that the Department arranged for her; or,
  • the time she spent with the interpreter was insufficient in order to have fully explained to her the reasons for the proposed cancellation and for the interpreter to fully obtain her response.

Given the lack of substantiated evidence available to me in relation to this recommendation, I do not intend to take further action.

Recommendation 3 of the Notice of Recommendations, proposes that the Migration Act be amended so that the Minister is obliged to inform visa holders of their right to access legal advice.

Section 256 of the Act provides:

Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

The words of section 256 of the Act do not give rise to an expectation that a detainee must be informed by an officer of the Department of his or her right to seek legal advice.

Section 256 provides that once a request has been made, reasonable facilities to allow access to legal advice must be provided. This obligation arises only upon request. People do request and, are provided with access to legal advice while in immigration clearance. At no time did a Departmental officer deny Ms Ching access to a legal representative.

Ms Ching had a right to access the services of a lawyer and a representative from the Philippines Government. She did have contact with a representative from the Philippines Government.

I do not accept that there has been a breach of Article 13. Judicial review of the cancellation decision was always available to Ms Ching and she had the right to access legal advice in order to pursue this remedy.

It is not my intention to propose that the Act be amended in regard to section 256.

In summary, I do not accept that the Department is in breach of Article 13 of the International Covenant on Civil and Political Rights, so compensation is not appropriate. The decision to cancel Ms Ching's visa was lawful, was made in good faith and without abuse of power.

Thank you for providing me with the opportunity to comment on the recommendations of the final report regarding Ms Ching.

2. Findings of fact

An outline of the complaint and response is provided in Appendix B. These outlines summarise the information provided by the parties to Commissioner Sidoti and I accept that the outlines correctly reflect the information provided by the parties.

In his preliminary report at Appendix B, Commissioner Sidoti also made a number of findings of fact upon which he based his analysis. Taking into account all of the information provided by the parties and the fact that neither party has challenged the findings of fact made by Commissioner Sidoti, I have adopted in large part the findings of fact made by him.

My findings of fact are as follows:

2.1 Cancellation of visa

2.1.1 In April or May 1998 Ms Ching was lawfully granted a six month visitor visa to enter Australia. Ms Ching was a resident of the Philippines and English is not her first language. Ms Ching had previously visited Ms May in Australia from 10 October 1997 to 9 January 1998.

2.1.2 According to the documentation comprising Ms Ching's visa application, her primary reason was to visit and provide support for both her sister, who was recovering from a serious operation and suffering severe depression, and for her sister's frail husband, who was suffering from emphysema. The application included a statutory declaration by Ms May and her husband verifying the purposes of the visit and a letter from their doctor verifying their relatives' medical conditions.

2.1.3 Ms Ching arrived at Brisbane Airport on 24 May 1998 and was taken into questioning detention pursuant to section 192 of the Migration Act. The time at which Ms Ching was taken into questioning detention is not recorded in the Immigration Inspector's Report prepared by Mr Alex Smirnoff dated 23 March 1999. However in correspondence from Mr Smirnoff to Linda Mortensen, Manager of Borders in Queensland, dated 27 March 1999, he states that movement records show that Ms Ching was processed by a Customs primary officer at 9.56 am and was detained pursuant to section 192 of the Migration Act at 10.05 am.

2.1.4 Mr Smirnoff questioned Ms Ching about a number of matters including whether Ms Ching had worked during her previous visit to her sister and whether she intended to work on this occasion. In his report dated 23 March 1999, Mr Smirnoff records that Ms Ching "said that the purpose of her travel to [Australia] is to try and help [her sister] in the honey business. She did so on her last visit to [Australia] and did such things as lifting hives, scraping honey from frames etc. She also did housework for [her sister], including looking after her daughter. She will be doing the same things on this visit as [her sister] is unwell".

2.1.5 According to the information provided by the parties, there is significant dispute as to the information Ms Ching claims she provided to Mr Smirnoff and the information he included in the report of his decision to cancel her visa. This dispute centred on the size of Ms May's bee keeping business and the role Ms Ching was to play in that business. Ms Ching denies Mr Smirnoff's account of the details he included in his report and denies saying that she would be "working" in her sister's business. It was not alleged that Ms Ching stated or agreed she would be remunerated in any way. I am of the view that it is not necessary for me to make a particular finding about the precise nature of what was said concerning the bee keeping business and Ms Ching's involvement in it, if any, other than to say that language difficulties may have contributed to the differences in what the parties understood from this aspect of the conversation.

2.1.6 The report dated 23 March 1999 records that Mr Smirnoff formed the view that by assisting Ms May in her honey business during her previous visit to Australia, Ms Ching had undertaken "work" and had breached a condition of her last visa. He also formed the view that by intending to assist Ms May again in carrying out her honey business, it was Ms Ching's intention to work in Australia again on this visit. As a result of forming these views, Mr Smirnoff came to the view that the circumstances that permitted the grant of Ms Ching's visitors visa no longer existed. Forming such a view meant that, pursuant to section 116(1)(a) of the Migration Act, he could consider cancelling her visa.

2.1.7 According to Mr Smirnoff's report and statement, he commenced to advise Ms Ching verbally of his intention to cancel her visa at 10.55 am. As Ms Ching was having difficulty understanding him, he arranged for an interpreter to be contacted at 11.00 am and completed giving her notice at 11.03 am. He states that Ms Ching provided her response at 11.13 am. He then decided to cancel her visa and served notice of cancellation on her at 11.25 am. Accordingly, once an interpreter was provided the immigration officer allowed Ms Ching only ten minutes to respond to the notice to cancel her visa. She had to do so without the benefit of any independent advice or assistance.

2.1.8 DIMA issue what are known as Migration Series Instructions ("MSIs") which appear to provide guidance to DIMA officers concerning their obligations under relevant Commonwealth legislation. MSIs do not appear to have any legal force.

2.1.9 A number of MSIs provided by DIMA relate to the procedures an officer must follow if consideration is being given to cancelling a visa. In particular MSI 203 [2] at paragraph 8 deals with notification of an intention to cancel a visa. Paragraph 8.2 states that this notice should include "particulars of the possible ground for cancellation and the reason why it is believed the ground exists, and invite the visa holder to present argument that the suspected ground for cancellation does not exist or that there are other reasons why the visa should be cancelled". Normally this notice must be given in writing but may be given verbally if the visa holder is in immigration clearance (paragraph 8.6.1). Paragraph 8.7.5 provides that if, pursuant to section 121(3)(b) of the Migration Act, a person is to respond at an interview to a notice of intention to cancel, then the interview must take place within a prescribed period or, if no period is prescribed, within a reasonable period. As no periods are prescribed under section 121(3)(b), officers must specify when the interview is to take place and this must be within a reasonable period. Paragraph 8.7.6 goes on to state that in some circumstances it will be appropriate to specify a short but reasonable period for response, and it gives an example of 10 to 30 minutes in circumstances where a visa holder is located working without permission.

2.1.10 Paragraph 8.10 goes on to discuss the specific situation of the service of a notice of intention to cancel a visa when the visa holder is held in questioning detention pursuant to section 192 of the Migration Act. Paragraph 8.10 does not appear to provide officers with any guidance as to what may be considered a reasonable amount of time to allow a person to respond to a notice in questioning detention. Paragraph 8.10.5 simply confirms the statutory provisions which state that when a notice of intention to cancel under section 116 of the Migration Act is given to a person, then section 126(1) provides that the period in which the person is to respond to the notice is to end when, or before, the period for which the person may be detained ends. In the case of people detained pursuant to section 116, a person may not be detained for more than four hours.

2.1.11 The consequence of cancellation of a visa while in immigration clearance is the mandatory removal of the visa holder from Australia.

2.1.12 Paragraph 10.2 of MSI 203 also provides that immigration officers are to have regard to a number of factors in deciding whether or not to cancel a visa. These include the purpose of the intended stay, the degree of hardship that cancellation would cause to Australian citizens and the visa holder and the seriousness of the ground for cancellation (paragraph 10.2.2). However, in the case of Ms Ching, neither DIMA nor Mr Smirnoff provided an account of how these factors were weighed up in reaching the decision to cancel Ms Ching's visa. In addition, it does not appear that Mr Smirnoff attempted to contact Ms May, who was waiting outside the airport, or undertook other inquiries to verify the nature and extent of Ms May's bee hive business and the nature and extent of the assistance Ms Ching would be providing.

2.1.13 On cancellation of her visa, Ms Ching became an unlawful non-citizen and she was detained pursuant to section 189 of the Migration Act. Ms Ching was then held in a standard interview room at the airport. As there were no available flights to the Philippines, it was decided that Ms Ching would be transferred to the BWCC. Ms Ching was placed under the supervision of the Australian Protective Service (APS) and left the airport at approximately 1.30pm. APS records show that Ms Ching was handed over to authorities at the BWCC at 2.10pm.

2.2 Detention at Brisbane Women's Correctional Centre

2.2.1 On being received at the BWCC, Ms Ching underwent a standard medical reception (as it was termed by Dr Tony Falconer, a doctor working for Queensland Corrections). This involved a comprehensive assessment by a nurse and review by a medical doctor as well as blood screening for syphilis, hepatitis B and HIV.

2.2.2 Ms Ching was held at the BWCC from 24 to 26 May 1998. By letter dated 21 April 1999, Keith Wheeldon, the Acting General Manager of Queensland Corrections, confirmed that the BWCC does not have a designated area to hold remand only inmates or unlawful non-citizens. All new inmates are placed in a common block, except inmates who are pregnant or with a child, and that it was "highly likely" that Ms Ching was placed in a cell with an inmate who had committed a criminal offence.

2.2.3 I accept Ms Ching's claim that she was required to wear prison clothes during the duration of her stay at the BWCC and that it took her a number of attempts to gain permission to telephone Ms May from the prison.

2.2.4 Ms Ching was escorted from the BWCC by officers of the APS at 5am on 26 May 1998 and they arrived at the airport at 5.30am. Ms Ching left on a flight for the Philippines at 6.46am. According to the records provided by DIMA, Ms Ching had therefore been detained at the BWCC for approximately 39 hours.

3. Relevant provisions of the Migration Act

It is important to note that the Commission's human rights complaints jurisdiction is limited to discretionary acts and practices of the Commonwealth. When an act or practice is within the discretion of DIMA and its officers, then those acts or practices are properly subject to the Commission's complaints jurisdiction. When an action of DIMA or its officers is required by the Migration Act and there is no discretion involved at all, these actions are outside the scope of the Commission's human rights complaints jurisdiction [3].

Bearing this in mind, it is necessary to set out the relevant provisions of the Migration Act that led to the cancellation of Ms Ching's visa.

3.1 Questioning detention

Section 192 Detention of visa holders whose visas liable to cancellation

(1) Subject to subsection (2), if an officer knows or reasonably suspects that a non-citizen holds a visa that may be cancelled under Subdivision C [4], D [5] or G [6] of Division 3 or section 501 or 501A, the officer may detain the non-citizen.

(2) An officer must not detain an immigration cleared non-citizen under subsection (1) unless the officer reasonably suspects that if the non-citizen is not detained, the non-citizen would:
(a) attempt to evade the officer and other officers; or
(b) otherwise not co-operate with officers in their inquiries about the non-citizen's visa and matter relating to the visa.

(3) An officer may question a non-citizen detained because of this section about the visa and matters relevant to the visa.

(4) A non-citizen detained under subsection (1) must be released from questioning detention if the officer becomes aware that the non-citizen's visa is not one that may be cancelled under Subdivision C, D or G of Division 3 or section 501 or 501A.

(5) A non-citizen detained under subsection (1) must be released from detention within 4 hours after being detained.

(6) If the non-citizen has been detained because of subsection (1) more than once in any period of 48 hours, the 4 hours provided for by subsection (5) is reduced by so much of the earlier period of detention as occurred within that 48 hours.

(7) In finding out whether 4 hours have passed since a non-citizen was detained, the following times are to be disregarded:

(a) if the detainee is detained at a place that is inappropriate for questioning the detainee, the time that is reasonably required to take the detainee from that place to the nearest place that is appropriate;
(b) any time during which the questioning is suspended or delayed to allow the detainee, or someone else on the detainee's behalf, to communicate with a legal practitioner, friend, relative, guardian, interpreter or consular representative of the country of which the detainee is a citizen;
(c) any time during which the questioning is suspended or delayed to allow a person so communicated with or an interpreter required by an officer to arrive at the place where the questioning is to take place;
(d) any time during which the questioning is suspended or delayed to allow the detainee to receive medical attention;
(e) any time during which the questioning is suspended or delayed because of the detainee's intoxication;
(f) any reasonable time during which the questioning is suspended or delayed to allow the detainee to rest or recuperate.

3.2 Cancellation of a visa

Section 116(1)(a) provides as follows:

Section 116 Power to cancel

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) any circumstances which permitted the grant of the visa no longer exist;
…

Once consideration is given to cancelling a visa pursuant to section 116, a delegated officer must comply with certain other provisions of the Migration Act, specifically sections 119 to 127. The relevant sections are as follows:

Section 119 Notice of proposed cancellation

(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
(4) The other provisions of this Subdivision do not apply to a cancellation:
(a) under a provision other than section 116; or
(b) to which Subdivision F applies.
…

Section 121 Invitation to give comments etc.

(1) An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:
(a) in writing; or
(b) at an interview between the holder and an officer; or
(c) by telephone.
(2) Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:
(a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be given in the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:
(a) a later time within that period; or
(b) a time within that period as extended by the Minister for a prescribed further period;
and then the response is to be given at an interview at the new time.
(6) This section is subject to sections 125 and 126.

…

Section 123 Failure to accept invitation not require action

If a visa holder does not respond to an invitation under paragraph 119(1)(b) or 120(2)(c) before the time for giving it has passed or tells the Minister that the visa holder does not wish to respond, the Minister may make the decision about cancellation without taking any further action about the information.

Section 124 When decision about visa cancellation may be made

(1) Subject to section 120 (give information) and subsection (2), the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119 and after whichever one of the following happens first:
(a) the holder responds to the notice;
(b) the holder tells the Minister that the holder does not wish to respond;
(c) the time for responding to the notice passes.
(2) The Minister is not to cancel a visa after inviting the visa holder to comment on information and before whichever one of the following happens first:
(a) the comments are given;
(b) the holder tells the Minister that the holder does not wish to comment;
(c) the time for commenting passes.
…

Section 126 Application of Subdivision to non-citizen in questioning detention

(1) If a non-citizen in questioning detention who is not released before the end of the 4 hours for which he or she may be detained is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, those 4 hours end.
(2) If a non-citizen who has been given an invitation under paragraph 119 (1)(b) or 120(2)(c) (whether in immigration clearance or otherwise) is taken into questioning detention and not released before the end of the 4 hours for which he or she may be detained, the period within which he or she is to respond to the invitation is to end when, or before, those 4 hours end.

Section 127 Notification of decision

(1) When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.
(2) Notification of a decision to cancel a visa must:
(a) specify the ground for the cancellation; and
(b) state whether the decision is reviewable under Part 5 or 7, and
(c) if the former visa holder has a right to have the decision reviewed under Part 5 or 7-state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.

(3) Failure to give notification of a decision does not affect the validity of the decision.

3.3 Detention of unlawful non-citizens

Section 14 of the Migration Act provides that an unlawful non-citizen is a person who is present in the migration zone (Australia) who is not an Australian citizen and who does not hold a visa that is in effect.

Section 15 of the Migration Act makes clear that if a person is in the migration zone and their visa is cancelled then they become, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.

Section 189 of the Migration Act provides for the detention of unlawful non-citizens in the following manner:

Section 189 Detention of unlawful non-citizens

(1) If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.

(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a) is seeking to enter the migration zone; and
(b) would, if in the migration zone, be an unlawful non-citizen;

the officer must detain the person.

Section 196 of the Migration Act provides that, once detained, an unlawful non-citizen must be kept in immigration detention unless removed from Australia [7], deported or granted a visa.

The detention provisions of section 189 of the Migration Act are mandatory in their terms and conduct in accordance with section 189 does not constitute an act or practice by or on behalf of the Commonwealth. Therefore this aspect of the treatment of Ms Ching is not subject to the Commission's human rights complaints jurisdiction [8].

4. Preliminary findings

In his preliminary report dated 22 June 2000, Commissioner Sidoti formed the preliminary view that breaches of Articles 10(1), 10(2)(a) and 13 of the ICCPR had occurred.

The reasons for Commissioner Sidoti's preliminary findings are in Appendix B.

Both parties were asked to provide responses to the preliminary findings.

5. The complainant's response to the preliminary findings

On 4 August 2000 Ms May, on behalf of Ms Ching, provided comments in relation to the preliminary findings. Ms May confirmed again Ms Ching's version of events in terms of her questioning at Brisbane airport and her incarceration at the BWCC. It is quite clear from her comments in the letter dated 4 August 2000 and in previous correspondence with the Commission that Ms Ching had suffered a great deal of stress as a result of her treatment by DIMA and in particular by her incarceration at the BWCC.

6. DIMA's response to the preliminary findings

6.1 Initial response by DIMA

By letter dated 18 September 2000, Mr W J Farmer, on behalf of DIMA, provided comments on the preliminary findings as follows:

Article 13

DIMA submits that, in accordance with Article 13 the decision to cancel Ms Ching's visa was reached in accordance with the law. On the basis of information before him, and after discussion with senior DIMA officers, Mr Smirnoff was satisfied that Ms Ching had breached a condition of her last visa by working in Australia and intended to do so again. Mr Smirnoff decided this was in contravention of the conditions of her visitor visa and her visa was cancelled in accordance with the Act.

During the interview, Mr Smirnoff made notes and completed a written record shortly thereafter. The record of interview was provided to you in previous correspondence along with Mr Smirnoff's denial of allegations made by Ms Ching. The written record of interview demonstrates that Mr Smirnoff made his decision lawfully. I add that the procedures at Brisbane airport have since developed further with immigration officers now recording on tape all refused entry interviews. This should ensure that disputes of this nature do not occur again.

Mr Sidoti had the view that the process adopted in cancelling Ms Ching's visa did not afford her a reasonable and adequate opportunity to submit her reasons against the cancellation and that there is no evidence that she had an opportunity to have her case reviewed by a competent authority.

DIMA submits that cancellation processes and immigration clearance are reasonable and that Ms Ching was provided with adequate opportunity to respond to the cancellation of her visa and did, in fact respond. As happened with Ms Ching, interviews must be of sufficient length to determine the facts of the case, with the person being given adequate opportunity during the interview to provide relevant information. In many cases the person is then permitted to enter Australia. The response time at the end of the interview is for the visa holder to provide reasons why the visa should not be cancelled; this period of time is additional to the interview itself.

DIMA also submits that in any event, judicial review was at all times available to Ms Ching to challenge the lawfulness of the cancellation decision and the lawfulness of her detention. DIMA submits that the availability of judicial review satisfies the requirements for review set out in article 13:

"[an alien shall be allowed] to have his case reviewed by, and be represented for the purpose before, the competent authority…"

In this regard, s.256 of the Migration Act 1958 at the time provided that:

"Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, afford to him or her all reasonable facilities for making a statutory declaration that for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention".

Ms Ching was able to request legal advice at any time while she was in Australia; including when she was in detention. Ms Ching could have taken the opportunity to seek legal assistance through her sister or her Consul, both of whom she spoke to while she was in detention. Had Ms Ching chosen to appeal the legality of Mr Smirnoff's decision to the Federal Court, she would have been accorded reasonable facilities to do so. Judicial review would have provided Ms Ching with an effective remedy if the Court had found that Mr Smirnoff's decision was not made in accordance with the law.

Article 10

As a preliminary point, DIMA submits that Article 10.2(a) is not applicable to Ms Ching's case as it deals only with persons subject to criminal processes and not to persons under all forms of detention. In any event, in terms of Article 10.1 or Article 10.2(a) if an analogy between accused persons and immigration detainees is drawn for the purposes of discussion, DIMA submits that there was no breach of Ms Ching's human rights in the way she was detained.

First, DIMA submits that Ms Ching's detention was not contrary to DIMA's own policies at the time. MSI 157 (current at that time) regarding the transfer of detainees to state prisons lists one of the grounds for transfer as being that no purpose built IDC exists in the State or Territory where the person entered Australia or was detained by DIMA. This is the case with Queensland. The MSI states that "officers should take into account the importance of having immigration detainees in an environment which offers fewer threats to personal security than a prison" and "it is desirable for immigration detainees to be held in remand areas of the prison, to reduce any exposure to violent convicted criminals", but neither of these statements impose any absolute obligation on DIMA to separate immigration detainees from convicted persons, especially when no facilities exist to do so.

Secondly, DIMA notes that Australia has entered a reservation in respect of article 10, which, in relation to paragraph 2(a) states that: "the principle of segregation is accepted as an objective to be achieved progressively". Therefore, DIMA submits that while segregation of immigration detainees from convicted persons is desirable as an objective, it is possible only where facilities for segregation exist. At the time, the only available option (other than the Brisbane City Watch House which was used only as a last resort) was the Brisbane Women's Correctional Centre, where there was no remand area. DIMA also notes that segregation is being progressively implemented in Queensland as females, youths and family groups who are refused immigration clearance are housed in a motel close to the airport pending removal. Moreover, the Government has allocated funding over the next four years to establish immigration detention centres in Darwin and Brisbane. A 200 bed centre is expected to be operational in Brisbane within two to three years.

In conclusion, I make the point that when people are refused immigration clearance, DIMA has a policy of trying to return people to their own country as soon as possible - preferably on the same day. This practice usually helps to avoid periods of detention - such as that experienced by Ms Ching. Please let me know if you require any further information.

6.2 Subsequent response by DIMA

By letter dated 1 December 2000, the Commission requested further information from DIMA, specifically in relation to the reservation in respect of article 10(2)(a) of the ICCPR which provides that "in relation to paragraph 2(a) the principle of segregation is accepted as an objective to be achieved progressively". This reservation was entered into at the time of Australia's ratification of the ICCPR in 1980 and has never been withdrawn.

DIMA responded to this request by letter dated 4 May 2001 as follows:

…Please find responses to your questions below.

1. Please provide details of the steps that have been taken by the Commonwealth to progressively achieve the objective of segregation of accused persons from convicted persons in Queensland.

As noted in the Secretary's letter of 18 September 2000 regarding this matter, DIMA submits that Article 10(2)(a) does not apply to persons in immigration detention, as it deals only with persons subject to the criminal process and not persons under all forms of detention.

However, DIMA recognises that the segregation of immigration detainees from convicted persons is desirable as an objective to be achieved progressively, and the following steps have been taken to achieve this:

  • One wing of the Arthur Gorrie Correctional Centre is reserved for male immigration detainees. Immigration detainees accommodated at the Centre have minimal contact with other residents.
  • Pending the establishment of a purpose built Immigration Detention Centre (IDC) in Queensland, decisions relating to the detention of women are made with the following factors in consideration:

In cases where detention is expected to be short term (ie 1-3 days, or awaiting an appeal against a Bridging Visa decision), a woman may be detained in a women's correctional facility. Factors taken into consideration when deciding to accommodate women immigration detainees in a women's correctional facility include ease of access to family/legal representatives and facilitating release if appropriate.

Current departmental policy is that women who are detained in Queensland and who provide information or make claims which prima facie may engage Australia's protection obligations, are transferred to Villawood IDC, to ensure that they are not detained for long periods of time in a correctional facility. This policy also applies if the detainee's appeal against a Bridging Visa decision fails, resulting in longer-term detention.

Locations considered for detention of women in Queensland include:

  • Brisbane Women's Prison;
  • Brisbane City Watch-House:-this is a new facility, that allows for very short term detention of immigration detainees with minimal contact with other inmates. This facility was not available when Ms Ching was taken into detention;
  • Motel 85:-this option is considered when detaining women and children for a period of up to 24 hours, pending removal from Australia or transfer to an IDC interstate. This option is used for overnight airport 'turnarounds' and for persons who may have accompanying children and/or special needs.
  • One unaccompanied minor was detained in Queensland in the period from 1999 to 2001. In that instance, the minor was a 17 year old student. The minor was detained in a State Juvenile facility for 24 hours, and was kept segregated from convicted persons.
  • The Department is currently in the process of finalising a Memorandum of Understanding (MOU) with the Queensland Department of Corrective Services concerning the detention of immigration detainees in Queensland correctional facilities. The MOU incorporates the immigration detention standards, which were formulated in consultation with the Commonwealth Ombudsman's Office and ensure consistency with Australia's national laws and international treaty obligations. The inclusion of these standards will ensure that the individual care needs of all immigration detainees held in Queensland correctional facilities will be met in a culturally appropriate way.
  • As noted in the Secretary's response, the Government has announced the establishment of a new detention facility in Queensland. The process of identifying appropriate sites for the facility at Brisbane is in its preliminary stages.

On 7 April 2001, the Department called for expressions of interest (EOIs) for architects to participate in a design competition for the design of the facility in Brisbane. The time for the submission of EOIs closed on Friday 20 April 2001. The design competition represents the first major step in the process of developing the new facility.

It is expected that a 200 bed centre in Brisbane will be operational by mid 2003.

2. Please provide any documents issued by the Commonwealth concerning the nature of its obligations under Article 10(2)(a) on which you rely, for example, any information concerning Article 2(a) that may have been provided by the Commonwealth to the Human Rights Committee in accordance with the Commonwealth's reporting obligations pursuant to Article 40 of the ICCPR.

I would like to make it clear that in its reply to HREOC's initial letter, DIMA did not 'rely' on any documents in relation to article 10(2)(a), apart from the wording of the reservation itself.

However, in the context of the Commonwealth's reservation under Article 10(2)(a), the Attorney-General's Department has provided the following advice:

  • Australia has made the reservation for the very reason that it cannot otherwise comply with the relevant Article. It would be irresponsible to remove it in circumstances where the Government cannot comply with Article 10.
  • The reservation to Article 10(2) and (3) concerning segregation, is necessary due to the demographics, geographic size and isolation of some remote and rural areas of Australia.
  • Australia has, for the same reasons, a similar reservation in respect of Article 37(c) of the Covenant on the Rights of the Child.
  • It is certainly standard policy to segregate juveniles from adults and accused persons from convicted persons (Australia's Standard Guidelines for Corrections and Standard Minimum Rules endure this), but it is simply not possible in all circumstances nor always in the best interest of the person detained."

7. Article 13 - procedural rights against expulsion

Article 13 gives aliens who are lawfully within the territory of a State Party procedural rights to protect them from expulsion. Expulsion of such aliens must accord with the State Party's own law and its purpose, according to the Human Rights Committee, is to prevent arbitrary expulsions [9].

The requirements of article 13 can be broken down as follows:

  • The person must be lawfully in the territory of the State Party.
  • The person may be expelled only in pursuance of a decision reached in accordance with the law of the State Party.
  • Unless compelling reasons of national security otherwise require, the person shall be allowed
  • to submit the reasons against his or her expulsion; and
  • to have his or her case reviewed before a competent authority; and
  • to be represented for the purpose of having his or her case reviewed before a competent authority.

These will each be considered in turn.

7.1 The person must be lawfully in the territory of the State Party

In this case it was not in dispute that Ms Ching was the holder of a valid visa when she arrived in Australia and so was lawfully in Australia until her visa was cancelled.

7.2 The alien may be expelled only in pursuance of a decision reached in accordance with the law of the State Party.

The reference to "law" in this context is the domestic law of the State party concerned. However the UN Human Rights Committee has stated that the "relevant provisions of domestic law must in themselves be compatible with the provisions of the [ICCPR]" and "[a]rticle 13 requires compliance with both the substantive and the procedural requirements of the law" [10].

In its letter to the Commission dated 18 September 2000 (see section 6.1 above), DIMA submitted that the decision to cancel Ms Ching's visa was reached in accordance with the law and DIMA made submissions in support of this. On the information provided to me it appeared that the actions of Mr Smirnoff were in accordance with the relevant provisions of the Migration Act as set out in section 3 above.

7.3 Unless compelling reasons of national security otherwise require, the person shall be allowed

  • to submit the reasons against his or her expulsion,
  • to have his or her case reviewed before a competent authority and
  • to be represented for the purpose of having his or her case reviewed before a competent authority

Prior to a visa being cancelled

Before a decision is made to cancel a visa pursuant to section 116 (see section 3.2 above), a non-citizen who is being held in questioning detention pursuant to section 192(1) (as in the case of Ms Ching) must be given an opportunity to show within a specified time that the grounds for cancelling a visa do not exist or that there is a reason why the visa should not be cancelled [11]. This appears to be the only opportunity provided for in the legislation to "submit reasons against expulsion" prior to the making of a decision to cancel a visa.

In practical terms, a non-citizen must be released from questioning detention within 4 hours after being detained [12], unless certain other considerations apply [13]. When a non-citizen in questioning detention is given the opportunity to show that the grounds for cancelling a visa do not exist or that there is a reason why the visa should not be cancelled, then the period in which he or she may respond is to end when, or before, those 4 hours end [14].

It is also relevant to note that the guidelines for DIMA officers, entitled "MSI-67: Visa Cancellation - General Guidelines" [15] , provide as follows:

7.7.4 Section 126(1) is not to be construed to increase the time limit for response to a Notice. For example, if a Notice of Intention To Cancel to a visa holder states that a response is required in a short period of time, then s126(1) does not increase that person's time for response to 4 hours.
7.7.5 Officers should be aware that s126 only applies to a person who is in questioning detention for the full 4 hours of questioning detention. Section 126 (1) operates to reduce the time limit for response to a Notice set out in the regulations (if applicable). Therefore, if an officer proposes to rely on the foreshortening effect of s 126 to hasten the time limit for response, the period of questioning detention must not be broken off before the full four 4 hours elapse. It should be remembered that a non-citizen can only be placed in questioning detention if an officer suspects that the non-citizen will not cooperate with the Department. If questioning detention ends before the four 4 hours have elapsed, s126 does not operate to shorten the specified time for response.
7.7.6 Where a non-citizen has been asked to respond to a Notice at interview, no periods for response have been prescribed in the regulations at this stage. Rather, the relevant officer must specify a reasonable period for response. In these situations, s126 has no effect on the time a non-citizen must respond to a Notice.
7.7.7 In all circumstances a decision on visa cancellation should be made as quickly as possible. Where possible, a decision on whether to cancel a non-citizen's visa should be made at the expiry of the period of questioning detention (or earlier if the period of response expired before 4 hours). Where it is not possible to make a decision at that time, the visa holder must be released on the expiry of 4 hours of questioning detention and a decision made at a later date.

Therefore the effect of sections 192(5) and 126(1) of the Migration Act appears to be that in relation to a person in questioning detention, the process of notice, invitation and response should all occur within a short period of time, and at the very most, 4 hours. After 4 hours a person must be released from questioning detention. The statutory provision therefore appears to provide a defined maximum period of time within which a person is given an opportunity to respond and there is no discretion given to an officer to extend this length of time. In circumstances such as this where the statutory provision operates automatically of its own force and does not involve an element of discretion by a person who administers the legislation, then it cannot be the subject of inquiry by this Commission [16]. However within that maximum period of 4 hours, it appears that officers have a discretion as to the amount of time allowed to a person to provide an opportunity to respond.

I note that in Mr Smirnoff's report dated 23 March 1999, he states that once he had advised Ms Ching of the grounds upon which he was considering the cancellation of her visa, he "invited her to show within a reasonable time (ten minutes) that those grounds did not exist or that there was a reason why her visa should not be cancelled".

I can appreciate the constraints that immigration officers in Mr Smirnoff's position are working under. However, in all the circumstances, I did not consider that the time period stipulated by Mr Smirnoff of 10 minutes was reasonable and did not allow Ms Ching an appropriate opportunity to submit the reasons against her expulsion for the following reasons.

As set out in paragraph 2.1.7 above, on Mr Smirnoff's own account, once an interpreter was present, the reasons for the proposed cancellation were explained to Ms Ching in only three minutes and she had access to an interpreter for a total period of 13 minutes. I considered this to be extremely inadequate given the seriousness of the consequences of a cancellation, that is, mandatory detention and removal from Australia.

In addition, in light of the language difficulties and the serious consequences of cancellation of Ms Ching's visa, Mr Smirnoff could have taken steps to contact Ms Ching's sister who was waiting for her in the arrivals lounge. Speaking with Ms May and/or her husband may have assisted Mr Smirnoff in his enquiries concerning the details of Ms Ching's visit to Australia and may have provided Ms Ching with at least some assistance in communicating more easily with the immigration officer in difficult and stressful circumstances where the potential consequences of the interview were so serious.

In addition, once again in light of the serious consequences of cancellation of a visa, I considered that requiring any person to respond to a notice such as that provided by Mr Smirnoff in approximately 10 minutes is not reasonable, let alone someone in Ms Ching's position for whom English is not her first language.

In the letter from DIMA dated 18 September 2000, DIMA submitted that cancellation processes in immigration clearance are reasonable and that Ms Ching was provided with adequate opportunity to respond to the cancellation of her visa and did, in fact, respond.

In my view, that part of article 13 requiring that a person be allowed to submit the reasons against their expulsion is directed towards a person being given the opportunity to provide a meaningful response. It was my view that such an opportunity was not provided to Ms Ching.

I therefore found that the act of requiring Ms Ching to provide a response to the notification of the likely cancellation of her visa within a period of 10 minutes was in breach of the requirement in article 13 that she be allowed to submit the reasons against her expulsion.

After a visa has been cancelled

Under the Migration Act, if a person has had their visa cancelled while in immigration clearance (as was Ms Ching's position) then they are not able to seek a review o f the merits of the decision either by the Migration Review Tribunal [17] or by the Administrative Appeals Tribunal [18].

The provisions denying review of the merits of a decision in relation to people in immigration clearance are mandatory in their terms. Any conduct in accordance with these provisions cannot be the subject of inquiry in this report as these statutory provisions operate automatically of their own force and do not involve any element of discretion on the part of officers of DIMA.

However, in its letter dated 18 September 2000, DIMA submitted that judicial review by the Federal Court of the legality of the decision was available at all times to Ms Ching and in this way she could have challenged the lawfulness of the cancellation decision and her detention. It submitted that the availability of judicial review satisfies the requirements of article 13 that an alien shall be allowed "to have his case reviewed by, and be represented for the purpose before, the competent authority …". It also referred to section 256 of the Migration Act, which at that time provided that:

Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration clearance.

DIMA submitted that Ms Ching was able to request legal advice at any time while she was in Australia and that had she chosen to appeal the legality of Mr Smirnoff's decision to the Federal Court, she would have been accorded reasonable facilities to do so.

Part 8 of the Migration Act provides for the review of decisions by the Federal Court [19]. Part 8 confers limited powers of review on the Federal Court in respect of "judicially-reviewable decisions". This expression is defined to include decisions of the Migration Review Tribunal and the Refugees Review Tribunal, as well as "other decisions made under this Act, or the regulations, relating to visas" [20]. The legislation specifically provides that, in spite of any other law, the Federal Court has no jurisdiction to review "judicially-reviewable decisions" other than the jurisdiction conferred by Part 8 itself and is deprived of jurisdiction in relation to the categories of decisions excluded from the definition of "judicially-reviewable decision" by section 475(2) of the Migration Act [21].

Section 475(2) does not appear to exclude from review decisions relating to the cancellation of visas of people in the position of Ms Ching. It therefore appears to be the case that the decision to cancel Ms Ching's visa could have been subject to judicial review in the Federal Court. It is clear however that in order to give this avenue of redress any real meaning, detainees need to be made aware of their legal rights. In my view it is unreasonable to expect people like Ms Ching, for whom English is not their first language and who are being detained in a foreign country in stressful circumstances such as immigration detention, to know that they are able to request legal advice, where to obtain that advice from or how to take legal proceedings in relation to their detention. It is also relevant to note that General Comment 15 of the Human Rights Committee states that: "[a]n alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all the circumstances of his case be an effective one" [22].

I accept that section 256 of the Migration Act does not require immigration officers to advise detainees that they are able to obtain legal advice or take legal proceedings in relation to their immigration clearance. However neither does the section prohibit officers from advising detainees that they are able to request legal advice and assistance. In my view, and in accordance with the view expressed in a previous report [23], the Migration Act gives DIMA and its officers a discretion in relation to this issue. The exercise of the immigration officer's discretion not to advise Ms Ching that she was able to seek legal advice or assistance had the effect that Ms Ching was not able to exercise her rights pursuant to article 13 to have her case reviewed before a competent authority and to be represented for the purpose of having her case reviewed before a competent authority. I therefore found a breach of article 13 in this respect.

8. Articles 10(1) and (2)(a)

As stated previously, in the preliminary report dated 22 June 2000 at Appendix B, Commissioner Sidoti found a breach of articles 10(1) and 10(2)(a) of the ICCPR.

The relevant parts of article 10 are as follows:

(1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
(2)(a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;…

8.1 Reservation in relation to articles 10(1) and 10(2)(a)

At the time of ratification of the ICCPR in 1980, Australia entered a number of reservations and declarations. One such reservation was made in relation to Article 10. That reservation stated as follows [24]:

Australia accepts the principle stated in paragraph 1 of article 10 and the general principles of the other paragraphs of that article, but makes the reservation that these and other provisions of the Covenant are without prejudice to laws and lawful arrangements, of the type now in force in Australia, for the preservation of custodial discipline in penal establishments. In relation to paragraph 2(a) the principle of segregation is accepted as an objective to be achieved progressively. In relation to paragraphs 2(b) and 3 (second sentence) the obligation to segregate is accepted only to the extent that such segregation is considered by the responsible authorities to be beneficial to the juveniles or adults concerned.

The effect of such a reservation is provided for in article 22 of the Vienna Convention, which provides that a reservation:

…modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation.

On 6 November 1984 the Government of Australia notified the Secretary-General of the United Nations of its decision to withdraw the reservations and declarations made upon ratification with the exception of a number of reservations including the following [25]:

Article 10

In relation to paragraph 2(a) the principle of segregation is accepted as an objective to be achieved progressively. In relation to paragraphs 2(b) and 3 (second sentence) the obligation to segregate is accepted only to the extent that such segregation is considered by the responsible authorities to be beneficial to the juveniles or adults concerned.

Therefore, while the reservation in relation to article 10(1) was withdrawn, the reservation in relation to article 10(2)(a) remains in place. This has the consequence that "Australia [does] not have an absolute international obligation to ensure the segregation of convicted prisoners from unconvicted prisoners" [26].

In carrying out the human rights complaint function of the Commission under section 11(1)(f) of the HREOCA, the Commission must have regard to the rights and freedoms recognised in the ICCPR, as the ICCPR applies in relation to Australia [27].

Therefore in exercising the function set out in section 11(1)(f), the Commission is required to consider the human rights contained in the ICCPR and any reservations made in respect of those human rights.

8.2 Findings in relation to article 10(1)

In his report dated 22 June 2000, Commissioner Sidoti came to the preliminary view that Ms Ching was subjected to an induction procedure and conditions of detention appropriate for a convicted prisoner contrary to her human rights under articles 10(1) and 10(2)(a) of the ICCPR. I note that DIMA has not made any submissions in relation to the finding concerning article 10(1).

Article 10(1) requires that a person in detention be treated in a humane manner. In interpreting the protection afforded to prisoners by article 10(1), the UN Standard Minimum Rules for the Treatment of Prisoners [28] and the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment [29], although not binding on Australia, are relevant UN standards applicable to the treatment of detained persons [30].

However I was of the view that there had not been a breach of article 10(1) in relation to the treatment of Ms Ching on her admission and incarceration at the BWCC. While I have no doubt that Ms Ching suffered a great deal of stress, anxiety and confusion as a result of her placement at the BWCC, I was satisfied that she was treated with the humanity and respect for the inherent dignity of the human person as is required by the article. In my view, her treatment cannot be equated with other cases in which breaches of article 10(1) have been found [31].

8.3 Findings in relation to article 10(2)(a)

8.3.1 Application of article 10(2)(a) to people in administrative detention

As a preliminary point, I considered it necessary to comment on DIMA's submission that article 10(2)(a) is not applicable to Ms Ching's case as it deals only with persons subject to criminal processes and not to persons under all forms of detention. Article 10(1) of the ICCPR refers to "all persons deprived of their liberty" and does not restrict the application of article 10 to people deprived of their liberty as a result of criminal charges. While article 10(2)(a) does not refer explicitly to administrative detention (that is, detention not ordered by a Court as in the case of the detention of 'unlawful non-citizens' under the Migration Act), the vulnerability of these detainees is even greater than that of prisoners detained by order of a court. In my view, people in administrative detention have available to them the protection afforded by all of the provisions of article 10 of the ICCPR [32].

I also note that in its second periodic report to the UN Human Rights Committee in February 1987 [33], within the discussion of article 10 and under the heading 'segregation', the Australian government made submissions concerning the detention of illegal immigrants in police lock-ups, remand centres and prison facilities when immigration detention centres are not available [34]. It therefore seems that even at this early stage, the Australian government acknowledged that its obligations under article 10(2)(a) relate not only to accused people within the criminal justice system, but also to administrative detainees.

8.3.2 Effect of reservation to article 10(2)(a)

Article 10(2)(a) imposes two requirements on a State Party. The first is that, save in exceptional circumstances, an accused person shall be segregated from convicted persons. The second is that the accused person shall be subject to separate treatment appropriate to their status as unconvicted persons.

I found, and it was not disputed by DIMA, that the BWCC did not have a designated area to hold remand prisoners and that during her period of detention at the BWCC, Ms Ching was held with other convicted prisoners. Were it not for the reservation entered into by Australia, there is, in my view, little doubt that in relation to the issue of segregation, the Commonwealth would have been in breach of its obligations to Ms Ching.

However it is also clear that the reservation entered into is not an absolute one. It clearly states that "the principle of segregation is accepted as an objective to be achieved progressively" and in my view, acts partially to reduce the effect of the guarantee of segregation, rather than entirely nullifying the application of article 10(2)(a) [35]. It was for this reason that I specifically sought further submissions from DIMA concerning the steps that have been taken by the Commonwealth to progressively achieve the objective of segregation of accused persons from convicted persons in Queensland. DIMA's response to this request has been set out in its entirety in section 6.2 and I took carefully into account the details provided by DIMA.

I also had regard to the relevant parts of each of Australia's reports to the Human Rights Committee in accordance with its obligations under article 40(1)(a) of the ICCPR. Article 40(1) requires that States Parties to the ICCPR submit reports on the measures they have adopted which give effect to the rights recognised in the ICCPR and on the progress made in the enjoyment of those rights. Since ratification of the ICCPR in 1980, Australia has submitted four reports to the Human Rights Committee. The first periodic report was submitted in November 1981, the second periodic report in February 1987 [36], the third periodic report in 1998 [37] and the fourth periodic report in 1999 [38]. In relation to the submissions concerning article 10(2)(a) of the ICCPR, there are some striking similarities in the information provided in each of the periodic reports. This information can be summarised as follows:

  • In all jurisdictions, accused persons awaiting trial are as far as practicable kept separate from convicted prisoners. Australia recognises that the segregation of accused persons from convicted persons is desirable. The exceptions occur in the sparsely settled regions of Australia which cover large areas. The cost of separately housing persons on remand and prisoners would not be justified in current circumstances [39].
  • The practice in all jurisdictions is, so far as possible, to keep accused persons separate from convicted persons and to allow them private communication with friends and legal advisers as far as possible. Accused persons are not required to work or wear prison dress [40].
  • Illegal immigrants placed in custody are normally held in purpose-built immigration detention centres. There are three such centres. Consequently in those localities without a centre, initial custody for an illegal immigrant may require detention in a police lock-up, remand centre or prison facility. It is not the policy to place illegal immigrants in prison where a detention centre is available or if custody is otherwise avoidable. In any event, periods of custody in those places are kept to a minimum and, where feasible, detainees are moved to a detention centre at the earliest opportunity [41].
  • At the 1989 Conference of Correctional Administrators, the Standard Guidelines for Corrections in Australia were ratified. These guidelines supplement the Standard Minimum Rules in their application to Australian prisons. Under the guidelines, accused persons awaiting trial are separated from convicted persons as far as practicable. Remandees are accorded different treatment from convicted persons [42].

In the third periodic report, brief details are provided concerning arrangements in each State for segregation of accused persons from convicted prisoners [43]. In relation to Queensland, the report states that "Queensland adopts a practice of separation, rather than segregation. Under most circumstances, remand prisoners are kept separate from convicted persons" [44].

The only comments made in the fourth periodic report concerning article 10 are in relation to remand facilities in Victorian prisons [45].

It is my view that the periodic reports provided by Australia are repetitive and do not provide a great deal of detail in relation to Australia's obligations under article 10(2)(a) and its acceptance pursuant to the reservation that segregation is an objective to be achieved progressively. It is a matter of grave concern that the reservation is still in place over 20 years since the ICCPR was ratified by Australia. In my view it is reasonable to expect that a country like Australia, with the resources available to it, should have been able to achieve this objective in the time that has now passed.

I also note that in its letter to the Commission dated 4 May 2001[46], DIMA, in response to the second of the Commission's questions, repeats advice obtained from the Attorney-General's Department to the effect that the reservation concerning Article 10(2)(a) "is necessary due to the demographics, geographic size and isolation of some remote and rural areas of Australia". This seems to be repeating the information provided in the first, second and third periodic reports that Australia provided to the Human Rights Committee. While I can appreciate that the "demographics, geographic size and isolation of some rural and remote areas of Australia" may be a rationale in some circumstances for the reservation to article 10(2)(a), this reasoning is less cogent in relation to one of the capital cities of Australia such as Brisbane.

However, I do note the further information provided by DIMA in its letter dated 4 May 2001 concerning the steps being taken in Queensland to progressively achieve the objective of segregation of accused persons from convicted persons. While progressive implementation of the principle of segregation seems to be occurring painstakingly slowly in Queensland, I am unable to find a breach of article 10(2)(a) in this instance.

9. Notice of findings

For the reasons given above, I found as follows:

9.1 That the act by an officer of DIMA of requiring Ms Ching to provide a response to the notification of the likely cancellation of her visa within a period of 10 minutes was in breach of the requirement in article 13 of the ICCPR that she be allowed to submit the reasons against her expulsion and therefore amounts to an act which is inconsistent with or contrary to her human rights under the HREOCA.

9.2 The act by an officer of DIMA not to advise Ms Ching that she was able to seek legal advice or assistance had the effect that Ms Ching was not able to exercise her rights pursuant to article 13 of the ICCPR to have her case reviewed before a competent authority and to be represented for the purpose of having her case reviewed before a competent authority and therefore amounts to an act which is inconsistent with or contrary to her human rights under the HREOCA.

10. Recommendations

The HREOCA requires that, where I conclude that an act or practice breaches a human right, I should then make findings to that effect and such recommendations including, where appropriate, recommendations for compensation as may be desirable to compensate and make good, to the extent possible, the harm or damage caused. Having found a violation of human rights under the HREOCA I then turned to recommendations.

In previous reports issued by this Commission, detailed recommendations have been made concerning Australia's policy of mandatory detention of unlawful non-citizens and the provision of information concerning access to legal advice and assistance [47].

The only findings of breaches of human rights were those set out at 9.1 and 9.2 above. Therefore, I limited my consideration of my recommendations to these aspects.

Against the background of the serious consequences of cancellation of a visa, that is, mandatory detention and the likely removal from Australia, I made the recommendations set out at section 11 below under the heading "Notice of Recommendations".

The HREOCA also provides that I may make recommendations as to compensation to be paid to those who are subjected to human rights violations. In her correspondence with the Commission, Ms Ching clearly set out the distress and confusion she experienced while being held in questioning detention and not having an appropriate opportunity to respond to the proposed cancellation of her visa. The pain and suffering she has claimed was not disputed by DIMA. It should be noted that in assessing the appropriate amount of compensation, I did not take into account any aspect of Ms Ching's mandatory detention as I did not find that there was a breach of the ICCPR in this regard.

Compensation in human rights cases is difficult to assess. There is no formal or informal schedule. The level of damages awarded in discrimination cases, which constitute by far the great majority of human rights cases decided, is modest compared to damages in other jurisdictions such as tort. I am required to take this into account when assessing the appropriate sums to recommend. Accordingly I recommended that DIMA pay Ms Ching the sum of $2,000.00 by way of general damages as a result of the human rights violations to which she was subjected.

11. Notice of recommendations

I made the following recommendations directed to preventing further acts or practices such as those in this complaint:

1. When the Minister, or his or her Delegate, is considering cancelling a visa pursuant to section 116 of the Migration Act and the visa holder is invited, pursuant to section 119(1)(b) to show within a specified time that the grounds for cancellation do not exist or there is a reason why the visa should not be cancelled, then the time for response specified should be reasonable, taking carefully into account the personal circumstances of the visa holder, for example, whether or not English is their first language, whether they require the assistance of an interpreter, whether they indicate that they understand the reasons given for cancellation and whether any claims made by the visa holder can be verified by contacting any other person.

2. If the visa holder requires access to an interpreter, the visa holder should have the opportunity to spend as much time with the interpreter as is required by the visa holder in order to have fully explained to him or her the reasons for the proposed cancellation and for the interpreter to fully obtain the visa holder's response.

3. The Migration Act should be amended to require the Minister, or his or her Delegate, to advise the visa holder that the visa holder has a right to access independent legal advice and to provide the visa holder with an opportunity to access such legal advice.

I also recommended that DIMA pay Ms Ching the sum of $2,000.00 by way of compensation for the damages she suffered as a result of the human rights violations to which she was subjected.

Appendix A
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 HREOCA. Part II Divisions 2 and 3 of the HREOCA 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 HREOCA.

Section 11(1)(f) of the HREOCA 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 HREOCA 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 HREOCA 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 HREOCA).

In addition, the Commission is obliged to perform all of its functions in accordance with the principles set out in section 10A of the HREOCA, 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 HREOCA 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 or oral submissions in relation to the complaint (section 27 of the HREOCA).

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 HREOCA). 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 HREOCA).

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 (section 29(2)(d) of the HREOCA). The Attorney-General must table the report in both Houses of Federal Parliament within 15 sitting days in accordance with section 46 of the HREOCA.

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 HREOCA), including where the subject matter of the complaint has already been adequately dealt with by the Commission (section 20(2)(c)(v) of the HREOCA).

Appendix B
Extract from preliminary report of Commissioner Sidoti dated 22 June 2000

REPORT ON UNCONCILIABLE COMPLAINT UNDER THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ACT 1986

COMPLAINT BY MS ERLINDA MAY ON BEHALF OF MS ELIZABETH CHING AGAINST THE COMMONWEALTH OF AUSTRALIA, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Parties:

Complainant: Ms Erlinda May
338 Williams Road
WAMURAN QLD 4512

Respondent: Commonwealth of Australia
Department of Immigration and Multicultural Affairs
Mr WJ Farmer
Secretary
PO Box 25
BELCONNEN ACT 2616

 

CONTENTS

1. Outline of the complaint

2. Outline of the response

3. Preliminary findings

4. Index to inquiry documentation

5. Inquiry documentation


Attachment 1 Relevant sections of Act

1. Outline of the complaint:

Ms May resides with her husband in Queensland. She lodged a complaint on behalf of her sister, Ms Elizabeth Ching, who resides in the Philippines.

Ms May claims that Ms Ching first visited her in Australia for three months from 10 October 1997 to 9 January 1998. Ms Ching applied to the Australian Consulate in Manila for a second visa in April 1998 to visit Ms May and was granted a multiple entry visa that allowed her to stay for six months. Ms Ching was 42 years of age at this time.

Ms May claims that Ms Ching's application form and certificate from her employer clearly stated the purpose of her visit, namely to give Ms May and her elderly husband physical and emotional assistance. She claimed that she and her husband provided a statutory declaration and a doctor's certificate concerning the purpose of the visit.

Ms May claims that when Ms Ching arrived at Brisbane Airport on 24 May 1998 she was questioned at length by an immigration officer, Mr Alex Smirnoff, and her visa was cancelled. She was taken into detention and held at the Brisbane Women's Correctional Centre in a cell with criminal offenders from 24 to 26 May 1998 and then removed from Australia.

Ms May claims Ms Ching was held at the Brisbane Airport from 10am to 3pm on 24 May 1998 and was questioned by the immigration officer for the first half hour of that period. She claims the immigration officer asked Ms Ching many probing questions, did not appear to believe what she was saying and intimidated her. She claims that he told her they would issue her with a work visa if she told the truth. She claims the immigration officer inferred that Ms May's payment of her sister's airline ticket was payment for Ms Ching working in Australia for three months. She claims that she (Ms May) purchased the ticket in Australia but it was to be paid for by Ms Ching's brother in the Philippines. Ms May claims that the immigration officer was aware she (Ms May) was waiting outside the airport for Ms Ching and refused Ms Ching's request to speak to her. She claims that after her visa was cancelled Ms Ching was not given reasons for the cancellation. Ms May claims that while at the airport Ms Ching was not offered anything to eat or drink.

Ms May claims that, as there were no turn around flights to the Philippines, Ms Ching was taken to the Brisbane Women's Correctional Centre and placed in a cell with female criminal offenders, two of whom had been charged with drug offences.

Ms May provided to the Commission a typed copy of a handwritten statement by Ms Ching setting out her allegations. She claims she only stated to the immigration officer that she was "helping" her sister with the bee hives and that sometimes her sister sold two buckets a week. She detailed her experience of being inducted into the prison. She claimed she had to change into prison clothes and undergo a medical examination in which urine and blood samples were taken and she received an injection for HIV. She claims it took five attempts for her to gain permission to call Ms May.

In subsequent correspondence Ms Ching denies stating to Mr Smirnoff that her sister, Ms May, sold 20 buckets of honey a week or that all her sister's income is derived from her honey business. She also denies stating that the purpose of her visit was to help her sister in her business or that she did so on her last visit.

2. Outline of the response:

DIMA states that Ms Ching's visa was cancelled under section 116(1)(a) of the Migration Act 1958 "on the grounds that the circumstances that permitted the grant of the visa no longer existed". It claims that she had breached a condition of her last visa by working in Australia and it was her intention to work again.

DIMA attached a copy of the relevant provision of the Migration Regulations prohibiting a visa holder from engaging in work in Australia (8101 of Schedule 8) and of the definition of "work". Work is defined as "an activity that, in Australia, normally attracts remuneration". Once her visa was cancelled, she became an unlawful non citizen in the migration zone and was detained under section 189 of the Migration Act. It attached copies of a Migration Series Instruction (MSI) on general detention procedures and section 189 of the Migration Act.

DIMA claims that there is no provision under the Migration Act for visitors to assist with a family business and that, if the intended activity would normally attract remuneration, it is considered to be work. It claims the funds held by Ms Ching (US$ 100) were insufficient to support her for a six month visit and that her intended activities constituted work.

DIMA provided a copy of the report prepared by the immigration officer who dealt with Ms Ching, Mr Alex Smirnoff. It also attached a detailed statement from Mr Smirnoff responding to Ms Ching's specific allegations of how she was treated at the airport. It attached copies of relevant Migration Series Instructions on questioning people in detention and visa cancellations.

DIMA claims that Ms Ching had been referred to an immigration officer after a Customs Officer considered there were concerns about the bona fides of her visit and she was taken into "questioning detention" under section 192 of the Migration Act.

In his statement Mr Smirnoff claims that concerns had arisen about the bona fides of Ms Ching's visit because she had only recently visited for three months and was now planning a further three month visit. He claims that, in accordance with MSI 203 Visa Cancellation, he was required to have regard to a number of matters including the purpose of the visit, the length of stay, previous visits, the seriousness of the ground and the degree of hardship which would be caused to the visa holder, Australian citizens and permanent residents if the visa was cancelled. Mr Smirnoff agrees he asked Ms Ching many questions but only ones that were relevant to these matters. He denies saying that he would issue a work visa if she told the truth. He claims that Ms Ching had told him her sister sold at least 20 buckets of honey a week, not two, and that all of her sister's income was derived from the business. He claims that she said the purpose of her visit was to try to help her sister in the business and that she did so the last occasion she visited Ms May. He claims she said that she performed tasks such as lifting hives and scraping honey from frames and did housework for her sister. He claims that after advising her he was considering cancelling her visa he gave her 10 minutes to show that grounds for cancellation did not exist. He denies that she was not provided with food or drink during her time at the airport and claims Qantas provided her with food and drink and that she was provided with water and toilet breaks on request.

DIMA claims that at the time of Ms Ching's detention the Brisbane Women's Correctional Centre was the only detention facility available in Brisbane except for the Brisbane City Watch House, which was only used as a "last resort".

It attached a copy of MSI-157 on Transfer of Detainees to State Prisons. It claims that officers are asked to ensure that a detainee is placed in an environment "that offers fewer threats to personal security than a prison". It claims that its policy is that it is desirable immigration detainees be held in remand areas. It acknowledges that Brisbane Women's Correctional Centre did not have a remand area and that Ms Ching was placed in a common block. It acknowledges that using prisons for short term detention was "not always appropriate" and that in Brisbane it had started to use motels. DIMA claims that no requests were made through the Department for family members to visit Ms Ching at the Correctional Centre.

DIMA provided a report from Queensland Corrections concerning Ms Ching's detention at Brisbane Women's Correctional Centre. Queensland Corrections agrees she was held at the Centre from 24 to 26 May 1998. It claims the Centre did not have a designated area to hold remand only inmates or unlawful non citizens. It claims all new inmates were placed in a common block, except inmates who are pregnant or with a child, and that it was "highly likely" Ms Ching was placed in a cell with an inmate who had committed a criminal offence. It claims that, as she was not a sentenced prisoner, her classification would have defaulted to "high security". It claims there was no policy or procedure concerning the detention of deportees. It claims no record was kept of any visits and it did not know if Ms Ching made any calls.

Queensland Corrections provided a letter from a departmental doctor, Dr Tony Falconer. Dr Falconer claims that, on being received at the Correctional Centre, Ms Ching would have undergone a "standard medical reception". This involved a comprehensive assessment by a nurse and review by a medical officer and blood screening for syphilis, hepatitis B and HIV. Dr Falconer is uncertain what Ms Ching meant by an injection for HIV and suggests she may be referring to the taking of the blood specimen for HIV testing or the hepatitis B vaccination. Dr Falconer claims that as she was only in detention for two days it is unlikely the results of her screening tests would have been available in time for the first vaccination to be given.

DIMA claims that, once a visa is cancelled, a person becomes an unlawful citizen and is liable to mandatory detention and removal. He or she is not eligible to apply for a bridging visa if in "immigration clearance". DIMA claims there is no provision in the Migration Act for merits review of decisions to cancel a visa under section 116 if the person is in "immigration clearance".

In subsequent correspondence, DIMA states that Ms Ching was lawfully in the migration zone from the time she arrived in Australia until her visa was cancelled. Thereafter she was unlawfully in Australia.

3. Preliminary findings:

Cancellation of visa

1 ICCPR article 13 provides

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to, submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

2. Article 13 requires a State Party to ensure certain procedural guarantees and safeguards to protect against arbitrary expulsion. Expulsion includes every form of "obligatory departure". Article 13 requires that the decision to expel must be reached in accordance with law and be made in good faith and without abuse of power. It provides an express right to appeal to a higher authority, though it appears that that authority need not be a court. The State Party must also provide a person facing expulsion with an effective remedy to challenge the decision, including "full facilities" for pursuing a remedy and the right to a freely selected lawyer. To ensure compliance with ICCPR article 13, the process leading to the decision to cancel a visa must comply with the principles set out in article 13.

3. For the purposes of ICCPR article 13 I am of the opinion that Ms Ching was the holder of a valid visa when she arrived in Australia and so she was lawfully in Australia at the time her visa was cancelled.

4. I note that, according to DIMA's advice, as Ms Ching's visa was cancelled while she was in "immigration clearance", there is no provision for her to apply for a merit review of the decision to cancel her visa under the Migration Act. According to DIMA, once her visa was cancelled she became an unlawful non citizen in the migration zone and, under the Migration Act, subject to mandatory detention and removal from Australia. Therefore, the only opportunity Ms Ching had to "submit" reasons against a decision that would automatically lead to her removal was when she was notified of the intention to cancel her visa.

5. I am of the preliminary view that the process adopted by the immigration officer in cancelling Ms Ching's visa, and thereby triggering her mandatory removal from Australia, did not afford her a reasonable and adequate opportunity to submit her reasons against the cancellation. Nor is there evidence she had the opportunity to have her case reviewed by a competent authority. Therefore I am of the preliminary view that DIMA's actions were inconsistent with Ms Ching's human rights under ICCPR article 13. In coming to this view I have had regard to the following matters.

i. In April or May 1998 Ms Ching was lawfully granted a six month visitor visa to enter Australia.

ii. According to the documentation comprising Ms Ching's visa application, her primary reason was to visit and provide support for her sister who was recovering from a serious operation and suffering severe depression and her sister's frail husband who was suffering from emphysema. The application included a statutory declaration by Ms May and her husband verifying the purposes of the visit and a letter from their doctor verifying their medical condition.

iii. Ms Ching arrived at Brisbane airport on 24 May 1998 and was taken into questioning detention.

iv. The questioning by the immigration officer included whether Ms Ching had worked during her previous visit and intended to work on this occasion. This arose in the context of the assistance she would be providing to her sister. According to the information provided by the parties, there is a significant dispute as to the information Ms Ching claims she provided to the immigration officer and the information he included in the report of his decision to cancel her visa. This dispute centred on the size of Ms May's bee keeping business and the role Ms Ching was to play in that business. Ms Ching denies the immigration officer's account of the details he included in his report and denies saying she would be "working" in her sister's business. It is not alleged Ms Ching stated or agreed she would be remunerated in any way. It is regrettable that Ms Ching was not permitted to have a legal or other representative present as an independent witness to what was said.

v. According to the immigration officer's report and statement, he commenced to advise Ms Ching verbally of his intention to cancel her visa at 10.55am. He states he gave her ten minutes to respond. As she was having difficulty understanding he arranged for an interpreter to be connected at 11.00am and completed giving her notice at 11.03am. He states that Ms Ching provided her response at 11.13 am. He then decided to cancel her visa and served notice of cancellation on her at 11.25am. Accordingly, once an interpreter was provided the immigration officer allowed Ms Ching only ten minutes to respond to the notice to cancel her visa. She had to do so without the benefit of any independent advice or assistance. I am of the view that the circumstances and period of time in which she was expected to submit her reasons were wholly inadequate. As the immigration officer was the initial and final decision maker I am of the view that Ms Ching did not have the opportunity to submit her reasons against the expulsion to a competent authority for review as required under ICCPR article 13.

6. In coming to this preliminary view, I have also had regard to the Migration Series Instructions provided by DIMA in relation to the procedures an officer must follow if consideration is being given to cancelling a person's visa. In particular MSI 203 at paragraph 8 deals with notification of an intention to cancel. This notice should include "particulars of the possible ground for cancellation and the reason why it is believed the ground exists, and invite the visa holder to present argument that the suspected ground for cancellation does not exist or that there are other reasons why the visa should be cancelled". Normally, this notice must be given in writing but may be given verbally if the visa holder is in immigration clearance. The period for a person in Australia to respond to such a notice is normally five days but can be shortened in the case where the person is in immigration clearance to as little as 10 minutes.

The consequence of cancellation of a visa while in immigration clearance is the mandatory removal of the visa holder from Australia. Given this, I am of the view that the visa cancellation processes outlined in MSI do not contain adequate procedural guarantees and safeguards as required by ICCPR article 13.

7. Although it is not my specific role to review the merits of the immigration officer's initial decision, I have significant concerns with the way he reached his decision.

The immigration officer was required under MSI 203 to have regard to a number of factors in deciding whether or not to cancel Ms Ching's visa. These included the purpose of the intended stay, the degree of hardship that cancellation would cause to Australian citizens and the visa holder and the seriousness of the ground for cancellation. However neither the Department nor the immigration officer has provided an account of how these factors were weighed up in reaching the decision to cancel Ms Ching's visa.

It does not appear that the immigration officer attempted to contact Ms May, who was waiting outside the airport, or undertake other enquiries to verify the nature and extent of Ms May's bee hive business and nature and extent of the assistance Ms Ching would be providing.

Coupled with the fact that there is significant dispute over the information recorded by the immigration officer, these issues concerning the initial decision to cancel the visa underscore the need for a fair and appropriate system by which a visa holder, such as Ms Ching, can challenge a cancellation decision.

Conditions of detention

8. ICCPR Article 10 provides

1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

2 (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;...

The Human Rights Committee has identified a number of other international documents as accurately reflecting its interpretation of article 10. Of particular relevance is the UN Standard Minimum Rules for the Treatment of Prisoners (the Standard Minimum Rules). Compliance with the standards established under this instrument has been held to be a minimum requirement for compliance with the provisions of article 10 in relation to people in detention being treated humanely.

In particular, Rule 8 of the Standard Minimum Rules provides

The different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment. Thus,

... (b) Untried prisoners shall be kept separate from convicted prisoners;…

9. According to Queensland Corrections Ms Ching was detained for over two days in a correctional centre with no remand facilities and it was "highly likely" she was placed in a cell with a prisoner who had committed a criminal offence. It stated that her security classification would have been "high security".

10. I am of the preliminary view that Ms Ching was held in detention with convicted prisoners, contrary to her human rights under ICCPR article 10.2(a). I am also of the preliminary view that she was subjected to an induction procedure and conditions of detention appropriate for a convicted prisoner, contrary to her human rights under ICCPR article 10.1 and 10.2(a).

11. In coming to this preliminary view I also note that Ms Ching's detention was contrary to DIMA's own policies at the time, which required immigration detainees to be held in the remand facilities of correctional centres if transferred to such a facility. I note that DIMA has advised it has since sought to provide motel accommodation in Brisbane for the detention of unlawful non citizens pending their removal.

12. Consequently, I am of the preliminary view that DIMA's actions in detaining Ms Ching at the Brisbane Women's Correctional Centre for two days were inconsistent with and contrary to her human rights under ICCPR article 10.

 

Chris SidotiHuman Rights Commissioner

Date: 22 June 2000

1. It should be noted that only 9 pages of the preliminary report have been appended. A substantial amount of material was considered by Commissioner Sidoti (251 pages in total). Because of the volume of materials, these documents have not been included in the Appendix. However it should be noted that I have taken into account all of the materials there were before Commissioner Sidoti in considering this matter.

2 I note that MSI 203 was issued on 10 August 1998. This was after the date that Ms Ching arrived in Australia and was dealt with by DIMA. I have assumed that as MSI 203 was provided to the Commission by DIMA the guidelines it contains are similar in relevant respects to any equivalent MSI that may have been in place when Ms Ching was dealt with.

3 Secretary, Department of Defence v HREOC, Burgess & Ors (1997) 78 FCR 208.

4 Subdivision C relates to the cancellation of visas on the basis of incorrect information being given.

5 Subdivision D relates to the cancellation of visas on certain grounds, and has within it sections 116, 117 and 118.

6 Subdivision G relates to the cancellation of business visas.

7 Pursuant to sections 198 or 199 of the Migration Act.

8 I note recommendations made in the Commission's report entitled Those who've come across the seas: detention of unauthorised arrivals (tabled in Federal Parliament in 1998) that sections 189 and 196 of the Migration Act be repealed and replaced with a system requiring that all unauthorised arrivals be assessed to gauge their suitability for release on a bridging visa. At present only limited classes of detainees held under section 189 and 196 may be released from detention if they satisfy restrictive criteria for bridging visas.

9 UN Human Rights Committee, General Comment 15 (1986), paragraph 10, Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev 4 (2000) at 99. While the decisions or "views" of the UN human rights treaty bodies are not binding on States, they are significant, being those of a Committee composed of experts from a wide range of countries: H Burmester, "Impact of Treaties and International Standards" (1995) 17 Sydney Law Review 127 at 145.

10 Maroufidou v Sweden Communication No 58/1979, paragraph 9.3.

11 Section 119(1)(a) and (b) of Migration Act.

12 Section 192(5) of Migration Act.

13 Set out in section 192(7) of Migration Act.

14 Section 126(1) of Migration Act.

15 Date of issue 23 August 1994.

16 Secretary, Department of Defence v HREOC, Burgess & Ors, see n 3 above.

17 Section 338(3)(b) Migration Act.

18 Section 500 Migration Act.

19 Part 8 was introduced by the Migration Reform Act 1992 (Cth). The relevant portions of the Migration Reform Act came into force on 1 September 1994.

20 Section 475(1) Migration Act.

21 For a more detailed analysis of the effect of Part 8, see R Sackville, "Judicial Review of Migration Decisions: An Institution in Peril" (2000) 23(3)UNSW Law Journal 190.

22 Above n 9 at paragraph 10.

23 HRC Report No.12, Report of an inquiry into a complaint of acts or practices inconsistent with or contrary to human rights in an immigration detention centre, at pp. 14-15, tabled in Federal Parliament on 28 March 2001 (also available at www.humanrights.gov.au/human_rights/index.html)

24 Nowak M. UN Covenant on Civil and Political Rights CCPR Commentary MP Engel, Publisher, Germany (1993) pp.748, 749.

25 Ibid, p. 773.

26 Per Gray J, Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 949, [28]; affirmed by the Full Federal Court in Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227, [4]; followed in Luu v Minister for Immigration and Multicultural Affairs [2001] FCA 1136, [76] per Marshall J.

27 Section 3(1) of the HREOCA, under definition of "Covenant" and section 3(4) of the HREOCA.

28 The Standard Minimum Rules were approved by the UN Economic and Social Council in 1957. They were subsequently adopted by the UN General Assembly in resolutions 2858 of 1971 and 3144 of 1983: UN Doc.A/COMF/611, Annex 1.

29 The Body of Principles were adopted by the UN General Assembly in 1988: GA Res.43/173. Annex: UN Doc.A/43/49 (1988).

30 UN Human Rights Committee, General comment 21 (1992), paragraph 5.

31 For a general analysis of the relevant jurisprudence in relation to article 10(1) see HRC Report No. 10 entitled "Report of an inquiry into a complaint of acts or practices inconsistent with or contrary to human rights in an immigration detention centre", tabled in Federal Parliament on 29 June 2000 (also available at http://www.humanrights.gov.au/human_rights/index.html).

32 Also note the comment made by Nowak (above n 24) at p.190, that in his view, it is possible to apply the protective provision of article 10(2) to persons in custody, not just to accused persons in pre-trial detention.

33 For the second periodic report submitted by the Government of Australia see UN document CCPR/C/42/Add.2. For its consideration by the Committee see CCPR/C/SR.806-809 and Official Records of the General Assembly, Forty-third Session, Supplement No.40 (A/43/40), paragraphs 413-460.

34 At paragraph 297.

35 For further discussion on the effect of reservations, see Joseph, S and Others, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary, Oxford University Press, 2000, Chapter 25.

36 Above n 33.

37 See UN document CCPR/C/AUS/98/3. This report covered the period from 1987 to December 1995.

38 See UN document CCPR/C/AUS/98/4.

39 First periodic report, paragraphs 205-206; Second periodic report, paragraph 294, Third periodic report, paragraph 625.

40 First periodic report, paragraphs 205-206; Second periodic report, para 296; Third periodic report, paragraph 628.

41 Second periodic report, paragraph 297.

42 Third periodic report, paragraph 627-628.

43 At paragraphs 629-636.

44 At paragraph 631.

45 At paragraphs 76-78.

46 Set out at 6.2 above.

47 See for example HREOC's report entitled, Those who've come across the seas: detention of unauthorised arrivals, above n 8; and HRC Report No.12, above n 23.

Last updated 20 June 2002.