Omar Sharif Baban v. Australia

International Covenant on Civil and Political Rights: Articles 7, 9 paragraphs 1 and 4, 10, 19 and 24 paragraph 1

Optional Protocol to the International Covenant on Civil and Political Rights: Article 2

General Comment No. 21 - Humane treatment of persons deprived of their liberty (Article 10)

The author is Omar Sharif Baban, born 3 May 1976, an Iraqi national of Kurdish ethnicity. He submitted the communication on his own behalf and that of his son Bawan Heman Baban, born 3 November 1997, also an Iraqi national of Kurdish ethnicity.

The author submitted that while in Iraq, he was threatened by the Kurdistan Democratic Party (KDP) and was the target of assassination attempts. The author and his son arrived in Australia on 15 June 1999 and were detained in immigration detention until they applied for refugee status on 28 June 1999.

On 13 July 1999, the Department of Immigration and Multicultural Affairs (DIMA) rejected their asylum application. On 6 September 1999, the Refugee Review Tribunal (RRT) dismissed the author's appeal against DIMA's decision. On 10 September 1999, the DIMA advised the author that his case did not satisfy the requirements for an exercise of the Minister's discretion to allow a person to remain in Australia on humanitarian grounds. On 12 April 2000, the Federal Court dismissed the author's application for judicial review of the RRT's decision.

On 24 July 2000 the author and his son along with other detainees began a hunger strike. They alleged they had been forcibly kept away by noise and were also forcibly removed from their facility to another one in Western Australia. They alleged that in the latter location, they were detained in isolation without windows or toilets. They were returned to Sydney thereafter where the Federal Court on 21 September 2000 refused their appeal for asylum status. A special leave to appeal to the High Court was subsequently delayed as the author and his son had escaped and their whereabouts was unknown.

The author submitted that their treatments while in detention violated Article 7 of the Convention (prohibition of torture or cruel, inhuman or degrading treatment or punishment); that his son’s deportation to Iraq would expose him to serious mistreatment in contravention of Article 7; that his mandatory detention upon arrival was a violation of Article 9 paragraphs 1 (liberty and security of person) and 4 (right to take proceedings before court; court to decide on lawfulness of detention); and that his detention was a further violation of Article 10 paragraph 1 (dignity of persons deprived of liberty) citing the Committee’s General Comment No. 21 - Humane treatment of persons deprived of their liberty (Article 10). The author further submitted his hunger strike was a legitimate expression of his right to protest, his forced removal to a facility in Western Australia was a violation of Article 19 (right to opinion and freedom of expression), and that his son’s detention and treatment was a violation of Article 24 paragraph 1 (protection of child; non-discrimination) and on the obligations set out in the Convention on the Rights of the Child. Accordingly, the author argued it was in his son’s best interest to stay with him and that they should have been released earlier as their detention was unjustified.

On 26 August 2002, the State party contested the admissibility and the merits of the communication. Regarding admissibility, the State party submitted, that among others, the communication was inadmissible as the author’s counsel had no standing to act. As to the claim of a violation under Article 7 of the Convention, the State party submitted that the appeal to the High Court stands adjourned until the authors’ whereabouts were made known, adding that available remedies had not been exhausted. Concerning the claims under Articles 7 and 10 (treatment of persons deprived of liberty) concerning mistreatment and conditions of detention, the State party argued that there were a number of civil actions which could be pursued in court, where the allegations made (denied by the State party) would have to be proven on the balance of probabilities. It argued the same manner in response to the alleged violation of Article 9 of the Convention. The State party argued that the claim made under Article 19 was incompatible with the Covenant, as a hunger strike was not expression through a 'media' protected by Article 19 paragraph 2 (right to freedom of expression), nor was it contemplated by the Covenant's drafters. Concerning the claim under Article 24 (rights of the child), the State party noted that the author, as parent/guardian, had standing to pursue remedies on behalf of his son.

On the merits of the case, the State party submitted that the claims under Articles 7 and 10 were in fact not violated, citing circumstantial reasons for certain actions authorities had taken. It noted that they were not isolated although recreation was temporarily suspended for one afternoon due to security reasons. The State party also rejected that the author was isolated in detention, indicated that there was natural light entering their rooms, that there were toilets and that the author and his son had been given food in the facility they stayed at in Western Australia. The State party rejected also the claim of refoulment to Iraq as a violation of Article 7 and indicated there was not enough evidence to suggest they would be exposed to ill treatment upon their return.

Regarding Article 9 paragraph 1, the State party argued that detention of the author and his son was reasonable and necessary in all the circumstances, and was not inappropriate, unjust or unpredictable. Their detention was proportionate to the ends sought, that is, to allow consideration of the author's claims and appeals, and to ensure the integrity of Australia's right to control entry. As to the claim under Article 9 paragraph 4, the State party observed that the Federal Court had jurisdiction in the case to review the refusal of a protection visa. As the decision in relation to the protection visa led to the continuing detention of the author and his son, the State party submitted that the ability to access the Federal Court (as the author did) satisfied the requirements of Article 9 paragraph 4. In addition, habeas corpus/mandamus review was available in the High Court to test legality of detention.

As to the claim under Article 19, the State party submitted that no evidence had been provided for how the author's transfer to Port Hedland violated his right to hold opinions and to freedom of expression. The State party also observed that there was a very serious incident which involved detainees barricading a room in the facility denying medical attention to children and other detainees and submitted that confining the detainees to their rooms for a security assessment overnight did not interfere with the author's rights under Article 19. If the Committee were to consider that the author's removal interfered with his rights under Article 19 paragraph 2, the State party submitted that, in any event, the measure was justified under Article 19 paragraph 3 (restrictions right to opinion and freedom of expression). The removal was lawful under regulations governing the operation of centres and supervision of detainees.

As to the claim under Article 24, the State party explained that its immigration detention standards took the health, safety and welfare of children into particular consideration. Social, recreational and educational programmes tailored to each child's needs were supplied. Specialist medical care was provided as required. Upon a child's admission, a child's needs in areas such as education programs, religious studies and recreational activities were elaborated in close consultation with parents. Provision for contact with family members abroad was arranged wherever possible, and care was taken to locate children in a facility where one or more adults could take a care and mentoring role. There were arrangements for children to be released into the community on bridging visas, where appropriate care and welfare arrangements could be made. The best interests of the child were individually assessed in determining eligibility for this program. All these services were subject to administrative (such as by the Government's Immigration Detention Advisory Group) and judicial review, as well as parliamentary scrutiny and accountability. As to the particular circumstances of the author's son, it was assessed that his best interest was to have him co-located with his father, as he had no other family in Australia. He only remained in detention while his father's status was being determined, and while his father subsequently appealed. The decision to remove the detainees from the recreation room was motivated by concern for the health of children in particular, and, for their safety, children were removed first. Staff cared for the author's son during the transfer to Port Hedland, where he was housed with his father in a standard block near other families. That centre's counselor visited his accommodation area several times, organizing games and activities for children. The State party submitted that these measures satisfied its obligations under Article 24.

On 10 February 2003, the author commented on the State party’s submission, and their counsel referred to common law authority for the proposition that a lawyer had authority to act as the general agent of a client in all matters which could reasonably be expected to arise for decision in a case. The counsel acting on behalf of the author and his son submitted that their return to Iraq would result in a violation of Article 7 and that there were no effective domestic remedies left for the authors.

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Consideration of admissibility

The Committee found that the communication was admissible in part. As to the author’s claims under Article 9, the Committee found that no effective remedies remained available to the author to challenge his detention in terms of this Article, and thus his claim under Article 9 were admissible.

As to the author’s claims under Articles 7 and 10 concerning their treatment in detention, the Committee found that these claims were unsubstantiated for purposes of admissibility.

Concerning the author’s claim under Article 19, considering the State party’s explanation of legitimate measures it could take in detention facilities, the Committee found the claim had not been substantiated for purposes of admissibility, as it was a legitimate restriction under Article 19 paragraph 3.

As to the author’s claim under article 24, the Committee noted the State party’s argument that in the absence of other family in Australia, the best interests of the author’s infant son were best served by being located together with his father. The Committee considered, in the light of the State party’s explanation of the efforts undertaken to provide children with appropriate educational, recreational and other programs, including outside the facility, that a claim of violation of his rights under Article 24 had, in the circumstances, been insufficiently substantiated, for purposes of admissibility.

Consideration of the merits

The Committee found a violation of the right of the author and his son under Article 9 paragraphs 1 (liberty and security of person) and 4 (right to take proceedings before court; court to decide on lawfulness of detention).

The Committee found that the prolonged detention of the author and his son were a violation of Article 9 against both the author and his son. The Committee considered that the prolonged detention, increasing hardship of the author and his son, and the inability to review detention, contributed as factors determining their detention as a violation. In coming to this conclusion, the Committee recalled its jurisprudence that, in order to avoid a characterization of arbitrariness, detention should not continue beyond the period for which the State party could provide appropriate justification. The Committee observed that the State party had failed to demonstrate that its reasons justified the author's continued detention in the light of the passage of time and intervening circumstances such as the hardship of prolonged detention for his son or the fact that during the period under review the State party apparently did not remove Iraqis from Australia. In particular, the State party had not demonstrated that, in the light of the author's particular circumstances, there were not less invasive means of achieving the same ends.

The State party was under an obligation to provide the author with an effective remedy, which included compensation.

In an individual dissenting (in part) opinion, one Committee member concurred with the Committee's finding of a violation of Article 9 paragraph 1, but not with its finding of a violation of Article 9 paragraph 4.

In a separate individual dissenting opinion, one Committee member did not consider the detention of a person illegally entering a State as amounting to a violation of Article 9.