The International League Against Arbitrary Detention urges the Government of Australia to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 23/2024 concerning Wajid Ali. The Working Group called for the Australian Government to provide Wajid Ali with an enforceable right to compensation and other reparations, in accordance with international law.
Read the full WGAD Opinion concerning Wajid Ali (Australia): Opinion No. 23/2024.
SUBJECTED TO DE FACTO INDEFINITE DETENTION FOR MORE THAN NINE YEARS
Wajid Ali is an ethnic Pashtun from Pakistan who practises the Shia Muslim faith, considered to be born in 1987. Arrived in Australia by boat on 19 June 2012, he was placed in administrative detention under section 189(1) of the Migration Act of 1958 during which he sought asylum on the ground of being subject to persecution by the Taliban in Pakistan. On 25 October 2012, he was released on a bridging visa, which was subsequently canceled on 10 April 2014 under section 116 of the Migration Act and Regulation 2.43 of the Migration Regulations 1994, following his arrest and charges in 2013 for indecent treatment of a child under 16 years of age and common-law assault. Consequently, Mr. Ali was rendered an “unlawful non-citizen”, liable to mandatory detention under section 189 (1) of the Migration Act, and he was promptly detained by the authorities.
Regarding Mr. Ali’s criminal charges, he was convicted on 25 June 2016, receiving one of the lightest sentences available: a one-year good behavior bond and a $A 200 fine. His appeal was dismissed in December 2016.
In September 2014, Mr. Ali was recognized as being owed protection, but his applications for a protection visa were denied in September 2013, December 2016, and December 2018 under section 501 of the Migration Act due to character grounds. According to the source, his protection visa review process was still ongoing in December 2022. These refusals prevented Mr. Ali from applying for another visa and from reapplying for the protection visa. Therefore, without a valid visa, he was still considered an “unlawful non-citizen” and remained in administrative immigration detention. Given Australia’s non-refoulement obligations and the inability to return Mr. Ali to Pakistan, the only foreseeable legal outcome appeared to be Mr. Ali’s indefinite administrative detention.
In this regard, the Working Group noted that Mr. Ali was released from immigration detention on a Bridging (Removal Pending) visa on 17 November 2023, following a High Court of Australia decision, on 8 November 2023. In the case of NZYQ v. Minister for Immigration, Citizenship and Multicultural Affairs and Anor, the High Court ruled that the continuation of immigration detention was not validly authorized once a point had been reached where there was no real prospect of the detainee’s removal from Australia becoming practicable in the reasonably foreseeable future. Although Mr. Ali was no longer detained, the Working Group decided necessary to render an opinion, given the serious allegations relating to Mr. Ali’s deprivation of liberty, his immigration detention, in accordance with paragraph 17(a) of its methods of work.
The Working Group observed that Mr. Ali’s case reflected a broader pattern of mandatory immigration detention in Australia under its Migration Act of 1958. The Working Group emphasized Australia’s international obligations, including the principle that even if a detention is lawful under national legislation, this legislation must be in conformity with international human rights standards, as repeatedly highlighted by various human rights bodies.
The Government of Australia was given the opportunity to rebut the allegations made by the source but responded only after the established deadline. As a result, the Working Group could not consider the answer as if it had been submitted on time.
ARBITRARILY DETAINED ON THE BASIS OF THE MIGRATION ACT 1958
The source alleged that Mr. Ali’s deprivation of liberty was based on section 189 (1) of the Migration Act and judicial precedent. This statute establishes that criminal charges against a bridging visa holder constitutes a prescribed ground for cancellation. After being charged with criminal offences, Mr. Ali’s visa was canceled, and he became an “unlawful non-citizen”, liable to administrative detention. The source emphasized that only a charge, not a conviction, was necessary for Mr. Ali’s visa to be cancelled, thus breaching the presumption of innocence. Furthermore, the source argued that Mr. Ali’s individual circumstances were not considered, either for the period before his conviction or for less intrusive alternatives to continuous administrative immigration detention.
The Government of Australia responded that detaining Mr. Ali was reasonable, necessary, and proportionate given his individual circumstances, and therefore never arbitrary. The Government funded its argument on the Hight Court decision in Al-Kateb v. Godwin, which held that detention of non-citizens under, inter alia, section 189 of the Migration Act did not violate the Constitution of Australia.
The Working Group recalled that Australia’s Migration Act has been found in breach of international human rights law by multiple human right bodies, including the Working Group in previous opinions. In these circumstances, this national law could not be considered a valid legal basis for detention.
In light of the above, the Working Group found that Mr. Ali’s detention was arbitrary under Category I, as it violated article 9 (1) of the Covenant.
DEPRIVED OF LIBERTY FOR EXERCISING HIS RIGHT TO SEEK ASYLUM FROM PERSECUTION
The source argued that Mr. Ali was detained for exercising his right to seek and to enjoy asylum from persecution in other countries. Moreover, after the cancellation of his bridging visa in April 2014, Mr. Ali was subjected to automatic immigration detention, and so was once again, detained due to his migratory status. In its late answer, the Government explained that Mr. Ali’s first administrative detention upon his arrival in Australia was consistent with the provisions of the Migration Act. The Working Group recalled that seeking asylum is a universal human right and administrative detention in the context of migration must be applied as an exceptional measure of last resort, for the shortest period and only if justified by a legitimate purpose, as developed in its revised deliberation No. 5.
Therefore, the Working Group found that Mr. Ali's detention was due to the legitimate exercise of his right to seek and enjoy asylum from persecution enshrined in article 14(1) of the Universal Declaration of Human Rights and articles 2 and 9 of the Covenant, falling under category II.
UNABLE TO CHALLENGE THE LEGALITY OF THE DETENTION
The source claimed that no effective mechanism was available to challenge the legality of detention for someone in Mr. Ali circumstances, in contravention of article 9 (4) of the Covenant. The source explained that the Human Rights Committee had previously observed, in A v. Australia, that Australian courts only reviewed the lawfulness of detention decisions under national legislation, without assessing compliance with Article 9(1) of the Covenant. In this regard, the Working Group recalled the Committee’s conclusion that there was no effective remedy to challenge the legality of continued administrative detention in Australia, in breach of article 9 of the Covenant. The Working Group emphasized that the right to challenge the lawfulness of detention is a protected human right, including in cases of migration detention.
In Mr. Ali’s case, the Working Group found that he was subjected to prolonged administrative detention without any judicial review of the legality of his detention. As previously noted, no alternative to Mr. Ali’s detention was considered. The Working Group reiterated its position that indefinite detention of individuals in the course of migration proceedings is unjustified and arbitrary, and that a maximum period for migration detention must be established by legislation.
The Working Group determined that Mr. Ali’s detention was arbitrary under Category IV, as he was subjected to de facto indefinite detention due to his migratory status, without the possibility to challenge the legality of such detention before a judicial body, a right protected by article 9 (4) of the Covenant.
DISCRIMINATED AS A NON-CITIZEN
Finally, the source submitted that Mr. Ali faced discrimination based on his birth and nationality. The inability of non-citizens to challenge administrative detention, an effective situation resulting from the High Court of Australia decision in Al-Kateb v. Godwin, created inequality with Australian citizens. The Government, referring to the Human Rights Committee, argued that article 26 of the Covenant, providing equal protection under the law for all, does not infringe a state’s right to decide who it admits to its territory. However, the Working Group explained that the ability for all people to challenge detention is precisely what the Government must demonstrate to comply with articles 9 and 26 of the Covenant.
In line with its previous findings, the Working Group concluded that this situation was discriminatory and contrary to article 26 of the Covenant. Consequently, Mr. Ali’s detention was arbitrary, falling under Category V.
CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION
The Working Group welcomed the decision of the High Court of Australia in NZYQ v. Minister for Immigration and Mr. Ali’s release from detention. However, Mr. Ali therefore was still subjected to arbitrary detention and this decision did not establish a basis for compensation or other reparations or a possibility to challenge the unlawfulness of detention.
In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Wajid Ali was arbitrary and fell under categories I, II, IV, and V because his deprivation of liberty was in contravention of articles 2, 3, 7, 8, 9 and 14 of the Universal Declaration of Human Rights and articles 2, 9 and 26 of the International Covenant on Civil and Political Rights.
The Working Group recommended that the Government of Australia take the steps necessary to remedy the situation of Mr. Ali without delay and bring it into conformity with the relevant international norms. The Working group considered that, taking into account all circumstances of the case, the appropriate remedy would be accord him an enforceable right to compensation and other reparations, in accordance with international law.
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