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Report No. 40: Complaints by immigration detainees against the Commonwealth of Australia (Department of Immigration and Citizenship, formerly the Department of Immigration and Multicultural and Indigenous Affairs) and GSL (Australia) Pty Ltd (2008)


Complaints by immigration detainees against the
Commonwealth of Australia (Department of Immigration and Citizenship, formerly
the Department of Immigration and Multicultural and Indigenous Affairs) and GSL
(Australia) Pty Ltd


REPORT NO. 40 (2008)


14 November 2008

The Hon Robert
McClelland

Attorney-General

Parliament House

Canberra ACT 2600

Dear Attorney

Pursuant to section 11(1)(f)(ii) of the Human Rights and Equal Opportunity
Commission Act 1986 (Cth), I attach a report of an inquiry by the former
President of the Commission into complaints made by immigration detainees
against the Commonwealth of Australia. The former President found that the
Commonwealth had breached the human rights of the complainants pursuant to
articles 10(1) and 17(1) of the International Covenant on Civil and Political
Rights.

At the time of finalising this report, the Commonwealth had not informed the
Commission what action, if any, it proposed to take as a result of the
President’s findings and recommendations. By letter dated 10 November
2008, the Department of Immigration and Citizenship provided the following
response to the President’s findings and recommendations:

The department has reviewed the findings and accepts that certain acts and/or
practices complained of were inconsistent with and contrary to human rights
under the Human Rights and Equal Opportunity Commission Act 1986 (Cth).



The department acknowledges and accepts the President’s
recommendations to:

  • pay $5,000 in compensation to those complainants who the President found
    have had their human rights breached as a result of the interviews, being all
    the complainants except C18 and C20 (see Attachment A);


  • pay an additional $4,000 to those complainants who were placed in separate
    detention (see Attachment A);


  • provide a formal written apology to each of the complainants to whom the
    President recommended be compensated for the breaches of their human rights
    identified in the Notice;


  • taking all appropriate measures to locate those clients (C1 and C8) in order
    to make payment of compensation recommended above, as well as to provide them
    with a copy of the President’s report and an apology; and


  • only conduct such interviews in future when all other means of ascertaining
    identity have been exhausted and such interviews to be conducted by the
    department with the assistance of overseas officials, rather than by overseas
    officials themselves.

The department has liaised with the relevant
areas to determine the most appropriate method by which to compensate the
clients and provide a formal apology, including taking appropriate action to
locate those clients offshore. As a result of HREOC’s recommendations, we
will be pursuing compensation arrangements under the ‘Act of Grace’
provisions. A submission has been prepared and provided to the Department of
Finance and Deregulation, whose approval is required for act of grace
payments.

It should be noted that the interviews conducted by the PRC delegation were
in 2005, before the Palmer and Comrie Reports and the subsequent and reform
agenda [sic]. Since that time, significant changes have been made to
departmental processes and policy, particularly around the investigation of
identity. As such, the department would not conduct such interviews currently,
or in the future, in the same way in which these interviews took place. These
draft guidelines are currently with the Commonwealth and Immigration Ombudsman
for comment.

Yours sincerely

The Hon Catherine Branson QC

President


CONTENTS

Part A: Introduction



Part B: Executive Summary



Part C: Background



Part D: Relevant Legal Framework



Part E: Arranging the interviews and provision of information about the complainants to the MPS officials



Part F: Manner in which the interviews were conducted



Part G: Separation Detention



Part H: Recommendations



Annexure A: Functions of the Human Rights and Equal Opportunity Commission



Glossary

 


PART
A: INTRODUCTION

  1. This is a report into three separate complaints lodged with the Human Rights
    and Equal Opportunity Commission (‘the Commission’) arising out of
    the same events. The first complaint was lodged by one detainee on his own
    behalf and on behalf of 21 other people being detained at Villawood Detention
    Centre. Subsequently three other detainees requested and were granted leave to
    be joined to the first complaint. Two other detainees lodged separate
    complaints relating to the same events.


  2. All of the complainants make allegations of breaches of their human rights
    by the Department of Immigration and Citizenship (‘DIAC’) (which at
    the time the complaints were filed was known as the Department of Immigration
    and Multicultural and Indigenous Affairs
    (‘DIMIA’))[1] and GSL
    (Australia) Pty Ltd (‘GSL’).


  3. The complaints relate to the following events:
    • (i) interviews that each of the complainants participated in, in May 2005,
      with officials from the Chinese Ministry of Public Security (‘MPS
      officials’) that were organised by DIMIA; and


    • (ii) the detention of some of these complainants for periods varying from
      one to fifteen days following the interviews in a different part of the
      Villawood Detention Centre known as the Manning Unit (‘separation
      detention’).


  4. As the report discloses that all of the complainants have lodged
    applications for protection visas I have given all of them pseudonyms. I have,
    however, given the parties a list of the pseudonyms given to each of the
    complainants so that they know to whom my findings and recommendations
    relate.


  5. I have also included a glossary at the end of my report that explains all of
    the abbreviations I have used throughout it.

PART B: EXECUTIVE
SUMMARY

  1. I find that DIMIA’s acts in relation to the above events breached the
    human rights of the complainants. These rights are:

    • (i) the right to be treated with humanity and dignity (art 10(1) of the International Covenant on Civil and Political
      Rights      [2] (‘the
      ICCPR’)); and


    • (ii) the right not to be subject to arbitrary interferences with their
      privacy (art 17(1) of the ICCPR).


  2. I have not found that the acts of GSL breached the human rights of any of
    the complainants.

INTERVIEWS

No breach of human rights in respect of
arranging the interviews

  1. I do not find that the act of arranging for the complainants to be
    interviewed by officials from their country of origin in itself constituted a
    breach of the complainants’ human rights.


  2. DIMIA arranged for these interviews to take place so as to expedite the
    identification of the complainants to enable travel papers to be issued for them
    necessary to effect their deportation to the Peoples Republic of China
    (‘PRC’). Most of the complainants had been in immigration detention
    for a considerable period of time. All of the complainants that had applied for
    visas had had their applications rejected by the Minister and the Refugee Review
    Tribunal (‘RRT’). In the case of most of the complainants, this
    rejection had taken place more than three years prior to the interviews.
    Further, apart from C12, none of the complainants at the time of the interviews
    were awaiting a decision of a court, a tribunal or the Minister in respect of
    that refusal. Accordingly, in respect of most of the complainants, the
    Government had been in a position to deport them for a considerable period of
    time. Due to the large number of detainees suspected to be from the PRC who
    needed to be identified the interviews were the quickest way of achieving this.
    In these circumstances, it was not in itself a breach of the human rights of any
    of the complainants for DIMIA to have arranged the interviews or to have
    provided the MPS officials with information about the complainants and their
    families to assist with the identification of the complainants.


  3. In the case of C12, at the time of his interview, his protection visa
    application had been rejected by the Minister and by the RRT but he was awaiting
    the outcome of an application he had made to the Federal Court for judicial
    review of the refusal. In his case, there was still a possibility that he may
    have been granted permission to remain in Australia. If his judicial review
    application had been successful then DIMIA would not have had to ascertain his
    identity in order to return him to the PRC. As such, the interview and
    disclosure of his personal information to MPS officials would have been
    unnecessary. Given, however, that his application had been refused by the
    Minister and the RRT I do not think that subjecting him to the interview or
    disclosing his personal information to MPS officials for the purposes of the
    interview amounts to a breach of his human rights.

No breach of human rights in respect
of the disclosure of personal information

  1. I also accept DIMIA’s evidence that the only personal information
    about the complainants and their families given to MPS officials was information
    to assist them ascertain the identities of the complainants. In those
    circumstances the disclosure of such information was not arbitrary and therefore
    did not constitute a breach of any of the complainants’ human
    rights.

Breaches of human rights
arising from the manner in which the interviews were conducted

  1. Whilst DIMIA’s act of arranging the interviews was not in itself
    objectionable, what was objectionable and what gave rise to the breaches in this
    case was the fact that DIMIA did this without taking adequate precautions to
    protect the rights and interests of the detainees. The manner in which the
    interviews were conducted breached both the right of the complainants to be
    treated with humanity and dignity (art 10(1) of the ICCPR) and their right to
    privacy (art 17(1) of the
    ICCPR).

(i) Failure to treat the
complainants with humanity and dignity (art 10(1))

Finding of breach in relation to the
complainants who had made protection visa applications prior to the
interviews

  1. In respect of the complainants who had made protection visa applications
    prior to the interviews, I find that DIMIA breached their right under
    art 10(1) of the ICCPR to be treated with humanity and dignity.


  2. I find that DIMIA’s failure to take adequate steps to prevent or at
    least minimise the risk of the complainants disclosing or being asked questions
    about their protection visa applications amounted to a failure to treat them
    with humanity and respect for their inherent dignity as human beings. This
    amounted to a breach of art 10(1) because DIMIA knew there was a risk of such a
    disclosure and should have known that if such information was disclosed the
    complainants may be at risk of persecution if they were returned to the PRC and
    were at risk of becoming distressed as a result of a fear of such persecution.
    To proceed with the interviews in those circumstances, without taking adequate
    steps to prevent or minimise that risk, shows a disregard for the rights and
    interests of the complainants that amounts to a failure to treat them with
    humanity and dignity.


  3. I also find that DIMIA’s failure to inform the complainants about the
    documents it had given to the MPS officials, and its failure to provide the
    complainants with an adequate explanation of the purpose of the interviews and
    the identity of the interviewers, demonstrates a disregard for the interests of
    the complainants that amounts to a failure to treat them with humanity and
    dignity. I reach this conclusion for the following reasons:

    (i) the
    absence of an explanation about the documents that were given to the MPS
    officials contributed to the complainants forming the mistaken view that these
    officials had been given information about their protection visa applications
    which understandably caused the complainants’ distress and fear;

    (ii) DIMIA should have recognised the risk that, in the absence of an
    adequate explanation about the purpose of the interviews, the role of the
    Chinese officials and the process that had been arranged, the detainees would
    become anxious and fearful as a result of the interviews and it would increase
    the risk of the complainants disclosing information about their protection visa
    applications; and

    (iii) the complainants did become distressed and frightened as a result of
    the interviews and some did disclose information about their protection
    visas.

Finding of no breach in relation to C18 and
C20

  1. I do not find that the interviews with C18 and C20 breached their human
    rights. These complainants had not applied for protection visas prior to their
    interviews. As such I do not have any evidence upon which to satisfy me that
    there was a risk that they would have disclosed information during the
    interviews that may have had adverse consequences for them akin to those faced
    by the protection visa applicants. Further, I have insufficient evidence about
    the precise information they disclosed during the interviews to satisfy me that
    they disclosed information that could have had adverse consequences for them.
    Whilst the manner in which these complainants were interviewed was still
    unsatisfactory I do not think that, in those circumstances, it was so
    unsatisfactory as to have amounted to a breach of their rights under
    art 10(1).

(ii) Breach of right
to privacy (art 17(1))

  1. The conduct of the interviews also breached the rights of some of the
    complainants not to have their privacy arbitrarily interfered with. The breach
    arose because these complainants divulged personal information about themselves
    during the interviews, such as information about protection visa applications,
    that was unrelated to the purpose for which the interviews were being conducted.
    DIMIA was responsible for the disclosure of this personal information
    because:

    • (i) it failed to take adequate measures to ensure or at least minimise the
      risk of such information being divulged;


    • (ii) the MPS officials, for whose actions I consider DIMIA to be responsible
      in the circumstances, sought the disclosure of the information; and


    • (iii) the MPS officials misrepresented to the complainants the purpose of
      the interviews, which also contributed to the disclosure of the unrelated
      personal information.


  2. I do not find that all of the complainants had their privacy breached in
    contravention of art 17(1). I only make this finding in relation to complainants
    in respect of whom I had sufficient evidence that they disclosed personal
    information unrelated to the purpose for which the interviews had been
    conducted. In several cases DIMIA was unable to provide me with transcripts of
    the interviews because it could either not locate the recordings of the
    interviews or the recordings had not worked or were significantly incomplete. In
    the absence of transcripts of the interviews I do not have sufficient evidence
    to conclude that these other complainants disclosed unrelated personal
    information and therefore insufficient evidence to find a breach of art 17(1).

SEPARATION DETENTION

Failure to treat complainants with humanity
and dignity (art 10(1))

  1. I find that the separation detention of the complainants constituted a
    breach of the their right to be treated with humanity and dignity (art 10(1))
    for the following reasons:

    • (i) DIMIA unnecessarily moved the complainants away from their usual
      accommodation and imposed restrictions on their ability to correspond with
      persons outside of the detention centre;


    • (ii) DIMIA should have realised that there was a real risk that the
      separation detention would cause distress to the complainants,
      because:

      1. they were not given any adequate explanation about the reason for the
        separation detention, the conditions in separation detention or its duration;


      2. the separation detention took place after they had participated in an
        interview that they did not know the purpose of, with people they suspected to
        be Chinese Government officials but whose identity was not made clear;


      3. the complainants were told inconsistent and in some cases incorrect things
        about the conditions in separation detention; and


    • (iii) holding the complainants in separation detention did in fact cause
      them to feel distressed and
      frightened.

Not an
arbitrary detention (art 9(1))

  1. Whilst I consider that DIMIA breached art 10(1) by placing the
    complainants in separation detention, I do not consider that its acts
    constituted a breach of art 9(1), which prohibits arbitrary
    detention. Article 9(1) can be breached if a person already in immigration
    detention is moved from one part of the immigration detention centre to another
    part of the centre but only where the move involves a further and serious
    deprivation of their liberty. In this case I do not consider the difference
    between the complainants’ usual conditions in detention and the conditions
    in separation detention were so marked and significant that it constituted a
    further and serious deprivation of their liberty in breach of art
    9(1). 

RECOMMENDATIONS

Compensation should be paid to the
complainants

  1. I find that the breaches by DIMIA caused the complainants to be distressed
    and frightened. This distress and fear was considerable initially and whilst it
    would have diminished over time it was not merely of a transitory nature.


  2. I therefore recommend that the Commonwealth pay $5,000 in compensation to
    those complainants who I find have had their human rights breached as a result
    of the interviews, being all of the complainants except for C18 and C20.


  3. I also recommend that the Commonwealth pay an additional $4,000 to those
    complainants who were placed in separation detention
    being:

(i) C1;

(ii) C3;

(iii) C4;

(iv) C8;

(v) C9;

(vi) C10;

(vii) C11;

(viii) C13;

(ix) C14;

(x) C15;

(xi) C17;

(xii) C18;

(xiii) C20;

(xiv) C22;

(xv) C23;

(xvi) C21;

(xvii) C24; and

(xviii) C26.

Apology

  1. In addition to compensation, I consider that it is appropriate that the
    Commonwealth provide a formal written apology to each of the complainants to
    whom I have awarded compensation for the breaches of their human rights
    identified in this report.

Contact
with complainants

  1. I recommend that the Commonwealth undertake all appropriate measures to
    locate C1 and C8 in order to make payment of the compensation recommended above,
    as well as to provide them with a copy of this report and an apology.

Conduct of future interviews of immigration detainees

  1. I have also made certain recommendations at the end of my report as to
    actions that should be taken by DIAC to prevent such breaches in the
    future.


  2. I have recommended that, given the risk of detainees becoming distressed and
    fearful as a result of these sorts of interviews and disclosing information in
    breach of their privacy, they should only be conducted when all other means of
    ascertaining identity have been exhausted. I have also recommended that DIAC
    consider arranging for such interviews to be conducted by DIAC with the
    assistance of overseas officials, rather than by the overseas officials
    themselves.


  3. Finally, I have made recommendations as to matters that DIAC should consider
    if it is to arrange for similar interviews to be conducted by overseas officials
    in the future.

STRUCTURE OF THIS
REPORT

  1. Following this Executive Summary, Part C of this report sets out the
    background to the complaints. Part D then outlines the relevant legal
    framework for this report. Parts E-F of this report set out my findings
    and have been structured as follows:

    The interviews

    (i) arranging the interview and the provision of documents about the
    complainants to the MPS officials – Part E; and

    (ii) the manner in which the interviews were conducted – Part
    F    ;

    The separation detention – Part G.


  2. Part H of this report then sets out my recommendations.

PART
C: BACKGROUND

Complaint from C3 and others (first
complaint)

  1. On 22 November 2005, the Federal Magistrates
    Court received an application by C14 made on his own behalf and on behalf of the
    following people who were, at the time, being detained at Villawood Detention
    Centre:

    • (i) C1;


    • (ii) C3;


    • (iii) C4;


    • (iv) XH;


    • (v) C6;


    • (vi) C7;


    • (vii) C9;


    • (viii) C10;


    • (ix) C11;


    • (x) C13;


    • (xi) C15;


    • (xii) C16;


    • (xiii) C17;


    • (xiv) C18;


    • (xv) C20;


    • (xvi) C22;


    • (xvii) C23;


    • (xviii) C25;


    • (xix) C21;


    • (xx) C24; and


    • (xxi) C26.

    The application was accompanied by a
    supporting affidavit by C14.


  2. The application claimed that GSL and DIMIA had discriminated against the
    detainees on the grounds of their race and that GSL and DIMIA had treated them
    in a cruel and inhumane way. The complaints related to the following:

    • (i) DIMIA having arranged for the detainees, who were all said to be asylum
      seekers alleging persecution by the PRC, to be ‘interrogated’ by
      four MPS officials;


    • (ii) following the interviews, being locked up and isolated for a period of
      sixteen days in a separate building within the Villawood Detention Centre;
      and


    • (iii) mistreatment whilst in separation detention consisting of being locked
      up for twenty-four hours, being given cold food, being refused medical or legal
      assistance and being refused any form of communication with people outside the
      unit.


  3. The Federal Magistrates Court returned the application to C14 and informed
    him in the letter accompanying the returned application that they could not
    accept it as there had to first be an application made to the Commission.


  4. On the same day, 22 November 2005, following receipt of the letter from the
    Federal Magistrates Court, the application and accompanying affidavit were
    forwarded to the Commonwealth Ombudsman by facsimile. The facsimile is
    addressed to the Commonwealth Ombudsman and to the Commission but the Commission
    did not receive this facsimile.


  5. On 24 November 2005, the Commonwealth Ombudsman forwarded the
    facsimile it received from the Court to the Commission.


  6. On 6 December 2005, the Commission received a written complaint from C3
    on his own behalf and on behalf of C14 and the other detainees listed above at
    paragraph 31(i) and (iii)-(xxi).
    C3’s complaint had attached to it the application by C14 and his
    supporting affidavit. The allegations made in the complaint relate to the same
    matters as C14’s application.


  7. On 7 December 2005, an officer at the Commission took a statement from C3 by
    telephone which provides greater detail about the complaint. The statement makes
    similar allegations to those made in the affidavit of C14 in relation to the
    conditions in separation detention.


  8. In relation to the interviews C3’s statement provided the following
    more detailed allegations:

    • (i) the MPS officials refused to inform the complainants where they were
      from;


    • (ii) the MPS officials had personal documentation and information about the
      complainants including wedding certificates and information about their
      families;


    • (iii) the MPS officials asked them whether they made applications for
      protection visas, how much money they had made in Australia, whether they had
      bought houses in the PRC or sent money back to the PRC;


    • (iv) the complainants did not know why they were interviewed or why they
      were separately detained and they felt frightened and threatened as a result of
      the interviews;


    • (v) after the interviews some of the families of the complainants in the PRC
      were ‘disturbed’ and ‘interrogated’ by Chinese local
      police.


  9. Initially the complainants were acting for themselves, however, a few months
    after having filed the complaints a solicitor, Ms Michaela Byers, commenced
    acting for all of the complainants except for XH and C17. Earlier this year
    Ms Byers informed the Commission that she no longer acts for
    C1.

Complaint by C8 (second
complaint)

  1. On or around 3 December 2006, C8 filed a complaint with the Commission. His
    complaint concerned his interview with the officials from the MPS and his
    subsequent separation detention. His complaint also related generally to his
    detention and the Australian Government’s refusal to grant him a visa.
    The Commission only investigated the complaint in relation to the interview and
    the separation detention; it did not investigate the complaint in relation to
    the detention generally.


  2. C8’s allegations in relation to the interviews were similar to those
    made in the complaint filed by C3.


  3. In relation to the separation detention C8 alleged that following his
    interview he was placed in a ‘prison inside the prison’ in which he
    was isolated from the outside world and not permitted phone calls or visits from
    his wife.


  4. Ms Byers also commenced acting for C8 although at the time of writing this
    report she no longer acts for C8.

Addition of complainants – C5,
C19 and C12

  1. On 19 February 2007, Ms Byers wrote to the Commission and requested that the
    following three detainees be added to the list of complainants:

    • (i) C5;


    • (ii) C19; and


    • (iii) C12.


  2. The Commission granted the above complainants’ application to be added
    to the first complaint.

Complaint
from C2 (third complaint)

  1. On 26 March 2007, C2 telephoned the Commission raising issues about being
    interviewed by MPS officials. On 27 March 2007, the officer from the
    Commission dealing with the other complaints returned C2’s call and
    obtained some initial information from him. Following that telephone call C2
    forwarded to the Commission a copy of the English translation of the transcript
    of his interview with the MPS officials.


  2. On 5 April 2007, the officer from the Commission again telephoned C2
    and obtained more detailed information from him. The Commission officer used the
    information provided by C2 to prepare a draft statement for him to sign. The
    draft statement was forwarded to C2 for him to consider and he signed it and
    returned the executed copy to the Commission. I consider this statement to be
    C2’s complaint.


  3. C2 made similar allegations in relation to his interview as those made by
    the complainants to the first complaint. In particular he alleged that during
    his interview he was asked whether he had lodged an application for a protection
    visa.


  4. Following the interview, C2 alleges he was taken to a small room and kept
    there for about half an hour with three other Chinese detainees and then
    returned to his room.


  5. Finally, C2 alleges that since his interview his family in the PRC have been
    harassed by Chinese authorities and that this was because of the
    interview.

DIMIA’s response to
the complaints

  1. The Commission informed DIMIA and GSL about all of the complaints and sought
    their responses. DIMIA provided separate responses to all three complaints.


  2. On 5 July 2006, in response to the first complaint, DIMIA provided the
    Commission with some initial background information about the interviews, the
    separation detention and the steps that DIMIA was taking as a result of receipt
    of the complaints (‘DIMIA’s initial letter to the
    Commission’).


  3. On 27 September 2006, DIMIA provided a formal response to the
    first complaint (‘DIMIA’s response’).


  4. On 14 February 2007 and 22 March 2007, DIMIA provided responses to the
    second complaint (‘DIMIA’s second response’).


  5. On 3 December 2007, DIMIA provided a response to the third complaint
    (‘DIMIA’s third response’).


  6. DIMIA conceded that the complainants had been interviewed by MPS officials
    and that DIMIA had arranged for these interviews to take place. DIMIA said that
    it had arranged the interviews in order to ascertain the identity of the
    complainants so as to facilitate their return, if appropriate, to the PRC.
    DIMIA further said that the only information given to the MPS officials about
    the detainees was information relating to their identity. DIMIA conceded that
    some of the complainants had been asked questions that extended beyond matters
    related to establishing their identity.


  7. In response to the third complaint DIMIA further conceded that the
    arrangements made by it to supervise the interviews were inadequate and that the
    interview process was flawed.


  8. In relation to the separation detention DIMIA conceded that some of the
    complainants had been taken to a separate accommodation area within Villawood
    Detention Centre and kept there until after the final interview was conducted at
    the facility. DIMIA said that this had occurred because the MPS officials had
    requested it so as to ensure that the detainees who had been interviewed would
    not convey the questions to those yet to be interviewed. DIMIA, however, denied
    the allegations of mistreatment of the complainants whilst they were in
    separation detention.

DIMIA’s
internal review of the interviews that had been conducted

  1. Upon receipt of the complaints DIMIA established a taskforce to review the
    cases of all of the individuals that had been interviewed by the MPS officials
    (including detainees who were not complainants). As a result of DIMIA’s
    investigation:

    • (i) DIMIA arranged for the tapes of the interviews that could be transcribed
      to be transcribed and copies of the transcripts (in both English and Chinese)
      and recordings to be provided to the detainees (some of the recordings could
      either not be located or were of poor sound quality);


    • (ii) DIMIA reviewed the cases of 48 persons who had been interviewed that
      were still in detention; and


    • (iii) DIMIA determined that some of the immigration detainees had been asked
      inappropriate questions and permitted some of them to submit further visa
      applications.


  2. As at the date of writing this report DIMIA has granted protection visas to
    16 of the complainants and a global special humanitarian visa to 2 of them. Of
    the remaining complainants:

    • (i) C12, C6, C7, C13 and C25 have all been granted a Bridging E (WE050) visa
      and been released from immigration detention. The Minister is considering
      granting them a global special humanitarian visa but is awaiting the outcome of
      health and character checks before making his decision;


    • (ii) C2 has also been granted a bridging visa and is awaiting a decision
      from the Minister as to whether he will intervene to grant him a visa; and


    • (iii) C1 and C8 were deported.

Accordingly, following
the interviews the majority of the complainants have either been granted
protection visas or are in the process of being granted one.

GSL’s response

  1. GSL has not provided a response to the complaints other than to say that
    they do not disagree with any part of DIMIA’s
    response.

The complaints the subject
of this report

  1. The complaints alleged racial discrimination under the Racial
    Discrimination Act 1975     (Cth) and breaches of human rights. This report
    deals only with the human rights issues. The complaints under the RDA are to be
    determined under the unlawful discrimination regime set up by Part IIB of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)
    (‘HREOC Act’).


  2. On 1 November 2007, pursuant to s 20(2)(b) of the HREOC Act, I
    finalised the complaint filed on behalf of one of the complainants (XH) in so
    far as it alleged breaches of human rights as the Commission had been unable to
    contact this complainant. All of the other complaints alleging breaches of
    human rights have been considered in this
    report.

Evidence in relation to the
complaints

  1. I have treated evidence received in respect of each of the complaints as
    evidence in relation to each of the other
    complaints.

Recordings of the
interviews

  1. DIMIA has provided the Commission with the audio recordings and transcripts
    of all of the interviews that it has been able to locate, including an English
    translation of the transcripts.


  2. The Commission has not, however, received transcripts of the interviews for
    all of the complainants. This is because DIMIA either could not locate an audio
    recording for the interviews or the recordings were inaudible. The Commission
    did not request a copy of the transcript for C17 because it did not have his
    consent to do so.


  3. DIMIA has advised that it could not locate audio recordings of the
    interviews with:

    • (i) C3; and


    • (ii) C11.


  4. DIMIA has advised that the recordings of the interviews with the following
    complainants were found to be blank:

    • (i) C8;


    • (ii) C14;


    • (iii) C22; and


    • (iv) C25.


  5. In relation to the transcripts that were received I note that:
    • (i) several parts of the interviews were inaudible so none of the
      transcripts reflect the full extent of what was discussed in the
      interviews;


    • (ii) in the letter from Patrick Gallagher of DIMIA to the Commission in
      which he forwarded the tapes of the interviews he states ‘we can also
      provide no guarantees that the recordings which have been provided have captured
      all interviews in their entirety’;


    • (iii) it appears from the way that the transcript of the interviews with C6,
      C18 and C20 read that the transcripts are incomplete and only record a very
      small part of these interviews (C6’s transcript is only two lines long and
      C18’s and C20’s transcripts are only one page long). Ms Byers
      expresses the view that these tapes have been ‘tampered’ with;
      and


    • (iv) large parts of the transcript of the interview with C23 are
      inaudible.


  6. In a letter from Ms Byers to the Commission dated 5 December 2006
    she states that she is instructed that the transcripts

have been
tampered with. For example, the length of the interview is shorter and some
transcripts end with a question.

She does not advise in what respect the transcripts have been tampered with
or whether all of the transcripts have been tampered with or if only some of
them have been tampered with which ones have been tampered with. As I indicated
above, it does appear that the transcripts of the interviews with C6, C18 and
C20 are significantly incomplete. Whilst this is concerning, I do not have
sufficient evidence upon which to conclude that the transcripts or audio
recordings have been tampered with.

  1. As several parts of the audio recordings were inaudible I accept that they
    do not record everything that was said during the interviews. Nonetheless, I
    think that what is recorded in the translation of the transcripts (apart from
    those of C6, C18 and C20) largely reflect the matters that were discussed during
    the interviews.

PART D: RELEVANT LEGAL
FRAMEWORK

HUMAN RIGHTS INQUIRY AND COMPLAINTS
FUNCTION[3]

  1. Section 11(1)(f) of the HREOC Act provides that the Commission has the
    function of inquiring into any act or practice that may be inconsistent with or
    contrary to any human right. Section 20(1)(b) requires the Commission to perform
    that function when a complaint in writing is made to it alleging such an act or
    practice, such as the complaints received in this
    case.

Act or practice by or on behalf
of the Commonwealth

  1. The expressions ‘act’ and ‘practice’ are defined in
    s 3(1) of the HREOC Act to include an act done or a practice engaged in
    ‘by or on behalf of the Commonwealth’, or under an enactment.
    Section 3(3) of the HREOC Act also provides that a reference to, or to the doing
    of, an act includes a reference to a refusal or failure to do an act.


  2. In previous reports, the Commission has held that an act or practice of
    Commonwealth employees and of employees of a company contracted by the
    Commonwealth to provide services on behalf of the Commonwealth, such as GSL,
    that are discretionary acts or practices are ‘acts or practices done on
    behalf of the Commonwealth’ for the purposes of
    s 3(1).[4] I agree with this
    view.


  3. The Commission has also previously held that unauthorised acts of employees
    of a company contracted by the Commonwealth to provide services at a detention
    centre done during an authorised operation in an immigration detention centre
    fall within the expression ‘acts on behalf of the
    Commonwealth’.[5] Again I agree
    with this view.

‘Inconsistent with or contrary
to’ any human right

  1. The phrase ‘inconsistent with or contrary to’ any human right in
    Division 3 of the HREOC Act is not defined or otherwise explained in the Act. In
    the Commission’s report into a complaint by Mr Huong Nguyen and Mr
    Austin Okoye Against the Commonwealth of Australia and GSL (Australia) Pty
    Limited (2008)     (Report No 39) I considered whether there was any
    distinction between an act being inconsistent with a human right and an
    act that is contrary to a human right. As was the case in that report,
    it is not necessary for me to resolve this question at this time as I am
    satisfied that no distinction arises in this matter. This is because I am
    satisfied that the relevant acts the subject of my findings in this report were
    both inconsistent with and contrary to the human rights of the
    complainants. The same is true in the case of my findings where no breach of
    human rights had occurred.


  2. For convenience, throughout this report I have referred to an act that is
    inconsistent with or contrary to a detainee’s human rights as a
    ‘breach’ of the relevant human
    right.

‘Human rights’
relevant to these complaints

  1. The expression ‘human rights’ is defined in s 3 of the HREOC Act
    and includes the rights and freedoms recognised in the ICCPR, which is set out
    in Schedule 2 to the HREOC Act. The articles that are of particular relevance
    to this inquiry are articles 9(1), 10(1) and 17(1) of the ICCPR. These
    articles provide:

    Article 9

    1. Everyone has the right to liberty and security of person. No one shall be
      subjected to arbitrary arrest or detention. No one shall be deprived of his
      liberty except on such grounds and in accordance with such procedure as are
      established by law.

    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.

    Article 17

    1. No one shall be subjected to arbitrary or unlawful interference with his
      privacy, family, home or correspondence, nor to unlawful attacks on his honour
      and reputation.

ARTICLE 9(1)

  1. Article 9(1) provides that all persons have the right to liberty and
    security of person. In particular the article prohibits ‘detention’
    that is
    ‘arbitrary’.

Detention

  1. The following comment by the United Nations Human Rights Committee
    (‘UNHRC’) makes clear that all forms of detention, whether for the
    purposes of criminal justice or some other reason, are covered by art
    9(1):

    The Committee points out that paragraph 1 [of art 9] is
    applicable to all deprivations of liberty, whether in criminal cases or in other
    cases such as, for example, mental illness, vagrancy, drug addiction,
    educational purposes, immigration control,
    etc.[6] (emphasis added)


  2. Whilst most cases in which a breach of this article has been alleged have
    involved criminal detention there are a number of cases in which this article
    has been considered to be relevant to other forms of detention including,
    detention for the purposes of
    immigration.[7]


  3. Whilst art 9(1) covers many forms of deprivation of liberty, it does not
    cover all restrictions on liberty of movement.


  4. So, for example, in Celepi v
    Sweden    [8] (‘Celepi’) the UNHRC held that art 9 did not apply to Mr
    Celepi’s complaint about the State restricting his movement to certain
    city limits but which did not prevent him from leaving Sweden. In doing so the
    UNHRC appeared to accept the State Party’s argument that art 9 did not
    apply to mere restrictions on liberty of movement that are covered by art 12
    (which gives people the right to liberty of movement within the territory of a
    State).


  5. Similarly in Karker v
    France    [9] (‘Karker’) the UNHRC held that art 9 did not apply to a
    deprivation of liberty pursuant to a compulsory residence order which restricted
    Mr Karker’s movements within the State.


  6. Joseph, Schultz and Castan in their book The International Covenant on
    Civil and Political Rights: Cases, Material and
    Commentary    ,[10] conclude based
    on the decisions in Celepi and Karker that:

    It seems
    that article 9 therefore applies only to severe deprivations of liberty, such as
    incarceration within a certain building...rather than restrictions on
    one’s ability to move freely around a State or an even smaller
    locality.


  7. The view of Joseph, Schulz and Castan also appears to be supported by the
    decision of the UNHRC in Vuolanne v
    Finland    [11] (‘Vuloanne’). In this case the UNHRC considered the
    meaning of ‘detention’ under art 9(4) of the ICCPR and whether it
    applied to detention for the purposes of military discipline.
    Article 9(4) of the ICCPR provides:

    Anyone who is deprived of
    his liberty by arrest or detention shall be entitled to take proceedings before
    a court, in order that that court may decide without delay on the lawfulness of
    his detention and order his release if the detention is not lawful.


  8. The terminology used in this article is, in my view, sufficiently similar to
    the terminology used in art 9(1) to consider the reasoning of this decision when
    determining what would constitute ‘detention’ for the purposes of
    art 9(1). In Vuolanne the UNHRC held that whilst not all restrictions on
    the freedom of movement of persons in the military services would constitute a
    ‘detention’ for the purposes of art 9(1) some could. In this regard
    the Committee said:

    The Committee acknowledges that it is normal for
    individuals performing military service to be subjected to restrictions in their
    freedom of movement. It is self-evident that this does not fall within the
    purview of article 9, paragraph 4. Furthermore, the Committee agrees that a
    disciplinary penalty or measure which would be deemed a deprivation of liberty
    by detention, were it to be applied to a civilian, may not be termed such when
    imposed upon a serviceman. Nevertheless, such penalty or measure may fall within
    the scope of application of article 9, paragraph 4, if it takes the form of
    restrictions that are imposed over and above the exigencies of normal military
    service and deviate from the normal conditions of life within the armed forces
    of the State party concerned. In order to establish whether this is so, account
    should be taken of a whole range of factors such as the nature, duration,
    effects and manner of the execution of the penalty or measure in
    question.[12]


  9. The deprivation of liberty in that case involved Mr Vuolanne being excluded
    from performing his normal duties, spending a period of 10 days in a cell
    measuring 2 x 3 metres, being allowed out only for the purposes of eating,
    going to the toilet and taking air for half an hour every day, being prohibited
    from talking to other servicemen or making noise in his cell and having his
    correspondence and personal notes interfered with. Given the circumstances of
    his detention the Committee concluded that it was a ‘detention’ for
    the purposes of art 9(4).


  10. None of the cases have, however, considered whether the article applies to
    moving a person who is already in detention from one part of a facility to
    another part that involves the imposition of further restrictions on that
    person’s liberty.


  11. In the Commission’s report of an Inquiry into complaints by five
    asylum seekers concerning their detention in the separation and management block
    at the Port Hedland Immigration Reception and Processing
    Centre    ,[13] the Commission found
    that art 9(1) of the ICCPR may be breached where a person in immigration
    detention is moved from one part of the immigration detention centre to another
    part of the centre that involves a further and serious deprivation of their
    liberty.[14] The Commission reached
    this conclusion because it was consistent with the jurisprudence of the
    UNHRC[15] and the European Court of
    Human Rights[16] that an initially
    lawful and not arbitrary detention may come to breach art 9(1) by reason of
    subsequent events which change the nature of the detention.


  12. In that report the Commission concluded that the transfer of the
    complainants in that case to ‘J’ block constituted a detention for
    the purpose of art 9(1) because the:

    transfer significantly altered
    the nature of their detention...The asylum seekers were held in dim or dark
    rooms and were only allowed outdoors for a total of 20-25 minutes in the six and
    a half days of their detention. Only two of the asylum seekers received a change
    of clothing after almost five days of detention and the others not at all. Each
    of the asylum seekers were escorted by at least three officers to use the toilet
    or the shower, causing delays in using these facilities which may have been in
    excess of ten minutes. The asylum seekers did not have access to the
    telephone.[17]


  13. For the reasons expressed in that report I agree that art 9(1) of the
    ICCPR may be breached where the transfer of a person in immigration detention
    from one part of the immigration detention centre to another part of the centre
    involves a further and serious deprivation of their liberty. I also think that
    the Commission’s view is consistent with and supported by the decision in Vuolanne that a deprivation of liberty that may not initially have fallen
    within the terms of art 9 may, when it increases in severity, become a detention
    to which this article
    applies.

‘Arbitrary’
detention

  1. The UNHRC jurisprudence makes clear that the requirement that detention not
    be ‘arbitrary’ is separate and distinct from the requirement that a
    detention be lawful. The jurisprudence further makes clear that whether a
    detention is ‘arbitrary’ requires consideration to be given to
    whether the reasons given by a State party for the detention make the detention
    appropriate, just, proportionate and reasonable in the circumstances.


  2. In Van Alphen v The
    Netherlands    ,[18] the UNHRC
    said:

    arbitrariness is not to be equated with ‘against the
    law’ but must be interpreted more broadly to include elements of
    inappropriateness, injustice and lack of predictability. This means that remand
    in custody pursuant to lawful arrest must not only be lawful but reasonable in
    all the circumstances. Further, remand in custody must be necessary in all the
    circumstances, for example, to prevent flight, interference with evidence or the
    recurrence of crime.[19]


  3. A similar view was expressed by the UNHRC in A v
    Australia    ,[20] in which
    the UNHRC said:

    the Committee recalls that the notion of
    ‘arbitrariness’ must not be equated with ‘against the
    law’ but be interpreted more broadly to include such elements as
    inappropriateness and injustice. Furthermore, remand in custody could be
    considered arbitrary if it is not necessary in all the circumstances of the
    case, for example to prevent flight or interference with evidence: the element
    of proportionality becomes relevant in this context. The State party however,
    seeks to justify the author’s detention by the fact that he entered
    Australia unlawfully and by the perceived incentive for the applicant to abscond
    if left in liberty. The question for the Committee is whether these grounds are
    sufficient to justify indefinite and prolonged
    detention.[21]


  4. Even a short period of detention may be considered arbitrary. In Spakmo
    v Norway    ,[22] the UNHRC accepted
    that the police were justified in arresting and detaining Mr Spakmo in order to
    stop him carrying out demolition work that they considered to be disturbing the
    peace. The UNHRC was not, however, satisfied that he needed to be detained for a
    period of eight hours in order to achieve this aim and as such the detention was
    arbitrary in violation of art
    9(1).

ARTICLE 10(1)

  1. This article requires consideration of whether the person alleging the
    breach has been:

    • (i) ‘deprived of their liberty’; and


    • (ii) ‘treated with humanity and with respect for the inherent dignity
      of the human
      person’.

Deprivation
of liberty

  1. In the UNHRC’s General Comment 9 on art 10(1) it states that the
    obligation imposed by this article applies to ‘anyone deprived of liberty
    under the laws and authority of the State who is held in prisons,
    hospitals-particularly psychiatric hospitals-detention camps or correctional
    institutions or
    elsewhere’.[23] Further, in
    several cases the UNHRC has held that art 10(1) extends to all deprivations of
    liberty, including that which occurs when a person enters immigration
    detention.[24]

Treatment with ‘humanity and
with respect for the inherent dignity of the human person’

  1. The UNHRC’s General Comment 9 on art 10(1) states:

    Article 10, paragraph 1, imposes on State parties a
    positive obligation towards persons who are particularly vulnerable because of
    their status as persons deprived of their liberty, and complements the ban on
    torture or other cruel, inhuman or degrading treatment or punishment contained
    in article 7....Thus, not only may persons deprived of their liberty not be
    subjected to treatment which is contrary to article 7...but neither may they be
    subjected to any hardship or constraint other than that resulting from the
    deprivation of liberty; respect for the dignity of such persons must be
    guaranteed under the same conditions as that of free persons...


  2. The above comment supports the conclusion that:

(i) art 10(1)
imposes a positive obligation on State parties to take actions to prevent
inhumane treatment of detained persons;

(ii) the threshold for establishing a breach of art 10(1) is lower than the
threshold for establishing ‘cruel, inhuman or degrading treatment’
within the meaning of art 7 of the ICCPR; and

(iii) the article may be breached if the detainees’ rights, protected
by one of the other articles in the ICCPR, are breached unless that breach is
necessitated by the deprivation of liberty.

  1. The above conclusions about the application of art 10(1) are also supported
    by the jurisprudence of the
    UNHRC[25] which emphasise that there
    is a difference between the obligation imposed by art 7(1) not to engage in
    ‘inhuman’ treatment and the obligation imposed by art 10(1) to treat
    detainees with humanity and respect for their dignity. In Christopher
    Hapimana Ben Mark Taunoa v The Attorney
    General    ,[26] the Supreme Court
    of New Zealand explained the difference between these two concepts as
    follows:

    A requirement to treat people with humanity and respect for the inherent dignity of the person
    imposes a requirement of humane treatment...the words ‘with
    humanity’ are I think properly to be contrasted with the concept of
    ‘inhuman treatment’...The concepts are not the same, although they
    overlap because inhuman treatment will always be inhumane. Inhuman treatment is
    however different in quality. It amounts to denial of humanity. That is I think
    consistent with modern usage which contrasts ‘inhuman’ with
    ‘inhumane’.[27] (footnotes omitted)

The decision considered provisions of the New Zealand Bill of Rights which
are worded in identical terms to arts 10(1) and 7(1) of the ICCPR.

  1. Whilst many of the cases brought under art 10(1) involve physical
    mistreatment or poor conditions in prison the decisions of the UNHRC in Angel
    Estrella v Uruguay    [28] (‘Estrella’) and Zheludkov v
    Ukraine    [29](‘Zheludkov’)
    demonstrate that art 10(1) can be breached by a breach of the rights of a
    detainee that do not involve physical mistreatment or poor prison conditions.


  2. In Estrella the UNHRC held that the conduct the subject of the
    complaint constituted a breach of both arts 10(1) and 17. In this case the
    breach involved censorship and restriction of Mr Estrella’s
    correspondence with his family and friends to such an extent that they
    considered it to be incompatible with art 17 read in conjunction with art
    10(1).


  3. In Zheludkov the UNHRC held that the State’s consistent and
    unexplained refusal to provide Mr Zheludkov with access to his medical records
    constituted a breach of art 10(1). The Committee reached this conclusion even
    though it was not in a position to determine the relevance of the medical
    records to an assessment of Mr Zheludkov’s health or to the medical
    treatment afforded to him. In a separate concurring opinion Mrs Cecilia Medina
    expressed the view that the actions of the State constituted a breach of art
    10(1) regardless of whether the refusal to provide access had any consequences
    for the medical treatment of Mr Zheludkov. In reaching this conclusion
    Ms Medina made the following comments about the obligation that arose under
    art 10(1):

    Article 10, paragraph 1, requires States to treat all
    persons deprived of their liberty ‘with humanity and with respect for the
    inherent dignity of the human person’. This, in my opinion, means that
    States have the obligation to respect and safeguard all the human rights of
    individuals, as they reflect the various aspects of human dignity protected by
    the Covenant, even in the case of persons deprived of their liberty. Thus, the
    provision implies an obligation of respect that includes all the human rights
    recognized in the Covenant. This obligation does not extend to affecting any
    right or rights other than the right to personal liberty when they are the
    absolutely necessary consequence of the deprivation of that liberty, something
    which it is for the State to justify.



    A person's right to have access to
    his or her medical records forms part of the right of all individuals to have
    access to personal information concerning them. The State has not given any
    reason to justify its refusal to permit such access, and the mere denial of the
    victim's request for access to his medical records thus constitutes a violation
    of the State's obligation to respect the right of all persons to be
    ‘treated with humanity and with respect for the inherent dignity of the
    human person’, regardless of whether or not this refusal may have had
    consequences for the medical treatment of the
    victim.[30]


  4. Both Zheludkov and Estrella demonstrate that art 10(1) is not
    confined to cases involving poor physical conditions of detention facilities or
    physical maltreatment of detainees, but extends to respecting the rights and
    interests of detainees. The decision in Zheludkov even suggests that the
    mere denial of a right, even if it is not proven to have adverse consequences
    for the detainee, is sufficient to constitute a breach of art 10(1). I do not
    express a view about whether the mere breach of a detainee’s rights would
    be sufficient to also constitute a breach of art 10(1) but note that the
    decision in Zheludkov demonstrates the potential breadth of the actions
    caught by art 10(1).


  5. It is not possible to comprehensively identify all of the situations that
    will constitute a breach of art 10(1). Ultimately, whether there has been a
    breach of this article will require consideration of the facts of each case. The
    question to ask is whether the facts demonstrate a failure by the State to treat
    detainees humanely and with respect for their inherent dignity as a human
    being.[31] In determining this
    question regard should be had to the types of conduct that the UNHRC has found
    to demonstrate such a failure ranging from physical or mental abuse of detainees
    to a breach of their rights that has not been proven to have adverse
    consequences for the
    detainee.

ARTICLE 17(1)

  1. Article 17(1), relevantly for the purposes of this complaint, prohibits
    ‘arbitrary’ ‘interferences’ with a person’s
    ‘privacy’.

‘Arbitrary’

  1. The UNHRC in General Comment 16 on art 17(1) states that the ‘concept
    of arbitrariness is intended to guarantee that even interferences provided for
    by law should be in accordance with the provisions, aims and objectives of the
    [Covenant] and should be...reasonable in the particular
    circumstances’.[32]


  2. In relation to the meaning of ‘reasonableness’, the UNHRC said
    the following in Toonen v
    Australia    :[33]

    The
    Committee interprets the requirement of reasonableness to imply that any
    interference with privacy must be proportional to the end sought and be
    necessary in the circumstances of any given
    case.[34]


  3. An interference with privacy will therefore be arbitrary if it is not
    reasonable. Reasonableness is assessed by considering whether the interference
    is necessary and proportional to achieving the purpose of the interference.

‘Interferences’

  1. Manfred Nowak in UN Covenant on Civil and Political Rights CCPR
    Commentary    ,[35] says in relation
    to the obligation imposed on State parties by art 17(1) in respect of detainees
    that:

    Special obligations to fulfill the right to privacy by means
    of positive action and to protect it against interference by private parties
    arise in relation to persons deprived of personal liberty and other persons in a
    vulnerable position, such as children, the elderly...Typical examples are the
    duty to ensure to prisoners and detainees a right to correspondence and
    communication with the outside world and to provide them with a minimum of
    privacy, intimacy and respect for their honour and reputation against
    interferences by prison wardens and other inmates
    alike.[36]


  2. Further in General Comment 16 the UNHRC has expressed the following view
    about the right recognised by art 17:

    The obligations imposed by
    this article require the State to adopt legislation and other measures to give
    effect to the prohibition against such interferences and attacks as well as to
    the protection of this
    right.[37]


  3. Based on the passage from Nowak and the General Comment a State may breach
    art 17(1) if it is aware or should be aware that there is a risk of a
    detainee’s privacy being breached and fails to take adequate steps to
    prevent this.

Privacy

  1. The UNHRC has not comprehensively defined the word ‘privacy’ in
    either its General Comment or in case law but it would clearly include the right
    to have personal information protected from
    disclosure.[38]

STANDARD
OF PROOF

  1. In making my findings, I have applied the civil standard of proof, namely
    the balance of probabilities. When assessing the evidence required to satisfy me
    of the matters alleged by the complainants to the requisite standard of proof I
    have, in accordance with the principles identified by Dixon J in Briginshaw v
    Briginshaw    [39] and the High
    Court in Neat Holdings Pty Ltd v Karajan Holdings Pty
    Ltd    ,[40] taken into account the
    seriousness of the allegations made in this matter and the potential
    consequences that may flow to DIMIA, GSL and their staff from adverse findings.
    Bearing these matters in mind I have taken particular care in assessing the
    evidence before making my findings.

PART E: ARRANGING THE
INTERVIEWS AND PROVISION OF INFORMATION ABOUT THE COMPLAINANTS TO MPS
OFFICIALS

EVIDENCE

Who arranged the interviews?

  1. DIMIA does not dispute that between 11 May 2005 and
    4 June 2005 the complainants were interviewed by MPS officials and
    that it arranged for the interviews to take place.


  2. This is confirmed by the terms of the written invitation issued by DIMIA to
    the MPS in relation to the interviews (‘invitation’). The invitation
    records the agreement reached between DIMIA and the MPS about the conduct of the
    interviews. The invitation states the following about who instigated the
    interviews:

    After discussion between the MPS and ...First Secretary
    (Immigration), Australian Embassy Beijing, the following agreement has been
    reached between DIMIA and the MPS:

    DIMIA has invited three experts from Fujian, Jiangsu and Liaoning provinces
    of China...The Chinese experts are invited by DIMIA to assist DIMIA in verifying
    the identity of people who may come from China and who are to be
    repatriated.

    DIMIA will select 65 people who are believed to come from China and who are
    to be repatriated. The experts will interview these individuals.

Purpose of the interviews

  1. DIMIA’s response states that the purpose of the interviews was to
    assist with the identification of detainees who had been in detention for some
    time so that travel documents might be obtained, if appropriate, to enable their
    return to the PRC.


  2. In DIMIA’s initial letter to the Commission in relation to the
    complaints it states:

    The interviews were the first time outside the
    parameters of a formal memorandum of understanding that Australia had undertaken
    such an approach, as usual practice has been to work with the appropriate local
    consulate. On this occasion, due to the large number of PRC detainees whose
    identities the department was unable to establish, it was decided that a visit
    by a PRC delegation would expedite the process.


  3. In DIMIA’s response it states that consular officials had not been
    able to identify the individuals to enable the issue of travel documents. It
    further states that the detainees who were interviewed were refusing to
    cooperate with the Department in verifying their identities for the purpose of
    facilitating the issue of travel documents.


  4. According to DIMIA’s response this approach had been used in the past
    by the UK and The Netherlands in returning unlawful non-citizens to the PRC and
    also by Australia in identifying unlawful non-citizens from Afghanistan,
    Pakistan and Vietnam. DIMIA did not provide any details about these visits
    apart from saying that in the case of the visits arranged by Australia these
    took place because of the large numbers of detainees that had to be
    identified.


  5. The invitation issued by DIMIA to the MPS in relation to the interviews
    states:

    DIMIA has invited experts from MPS to Australia to assist in
    identifying illegal immigrants who are believed by DIMA to be nationals from
    China.

    ...

    ...The experts will interview these individuals. Following the interview the
    experts will provide DIMIA with a written report for each interview. DIMIA will
    then include the experts’ reports with documents to be submitted to the
    Chinese Embassy in Australia according to the current procedures. The reports
    will be used by the Chinese Embassy as references for the verification for the
    above mentioned people.


  6. The invitation supports DIMIA’s assertion that the purpose of the
    interviews was to expedite the identification and repatriation of the
    complainants.

Status of visa
applications of complainants at the time of the interviews

DIMIA’s evidence

  1. In DIMIA’s response it states that the people interviewed were thought
    to be nationals of the PRC who were found conclusively not to be owed
    protection. DIMIA says two of the detainees were subsequently identified as
    having litigation on foot at the time of the visit but neither of these were
    complainants.


  2. DIMIA provided the Commission with information about the immigration status
    of some of the complainants in an attachment to its initial response and has
    provided additional information about the balance of the complainants in
    response to subsequent requests for additional information made by the
    Commission.


  3. DIMIA has advised that all of the complainants except C18 and C20 had filed
    protection visa applications prior to their interview.

Migration
status of C18 and C20 at the time of the interviews

  1. C18 entered Australia on 23 April 1998 on a Visitor (Short Stay) Visa and he
    had subsequently been granted a Visitor (Long Stay) Visa that was valid until
    23 October 1998. Following his application for a Visitor (Long Stay)
    Visa and prior to his interview he had not made any other applications for any
    type of visa. On 8 February 2005, C18 was located by DIMIA officers and
    placed into detention and he was interviewed on 30 May 2005.
    Accordingly, at the time of his interview he had only been in immigration
    detention for a relatively short period of time. Following his interview, on
    28 March 2006, C18 lodged a protection visa application.


  2. C20 claims to have arrived in Australia on 1 October 1998 with a
    tourist visa. DIMIA could not locate any record of a visa being granted to him
    nor of his travel movements in Australia. C20 was located by DIMIA officers on
    6 February 2004 and was placed in immigration detention on that date.
    Accordingly, at the time of his interview he had been in immigration detention
    for almost a year and had not in that time made any applications for visas. On
    3 June 2005, following his interview, C20 filed an application for a
    protection visa.

Status of visa applications by the other
complainants

  1. Based on the information provided by DIMIA the status of the visa
    applications of the complainants that had filed protection visa applications
    prior to their interviews was as follows:

    • (i) All of them had had their applications refused and the RRT had affirmed
      this decision. Some of the complainants had even had appeals to the Federal
      Court and the High Court dismissed.


    • (ii) In the case of 15 of the complainants the last decision made by a
      court, tribunal or Minister to refuse the complainants’ protection visa
      applications was 3 or more years prior to their interview. No application had
      been made by any of these complainants in that three year period for further
      reviews of the decision in respect of the refusals.


    • (iii) In the case of the following complainants the last date on which their
      applications for protection visas had been refused by either the Minister or a
      court or tribunal prior to the interview varied between two years to less than a
      month. The dates were as follows:

      1. C21 – on 19 February 2003 the RRT affirmed the
        Minister’s refusal;


      2. C24 – on 3 February 2004 the RRT affirmed the Minister’s
        refusal;


      3. C4 - on 13 April 2004 the RRT affirmed the Minister’s
        refusal;


      4. C9 - on 4 May 2004 the Minister had refused to consider a request
        for intervention pursuant to s 417 of the Migration Act 1958 (Cth)
        (‘Migration Act’);


      5. C19 – on 16 September 2004 his request pursuant to s 417 of the
        Migration Act had not been referred;


      6. C23 - on 9 December 2004 the RRT affirmed the Minister’s refusal;


      7. C14 – on 22 April 2005 his application to the Federal Court was
        dismissed; and


      8. C16 – on 27 April 2005 her appeal to the High Court was
        dismissed.


    • (iv) In the case of C12 he had only lodged his protection visa application
      on 22 February 2005 and the refusal to grant him a visa was under judicial
      review at the time of his
      interview.

Evidence in the
transcripts of the interviews

  1. The transcripts of interview with some of the complainants record them
    suggesting that they were awaiting the outcome of review proceedings at the time
    of their interviews:

    • (i) in the interview with C4 he said (at pp.3 and 7 of the transcript) that
      his case had just gone to the RRT – according to the information provided
      by DIMIA the RRT had affirmed the refusal to grant him a protection visa on
      13 April 2004 and he had no application pending at the time of his
      interview;


    • (ii) in the interview with C16 she said (at p.2 of the transcript) that she
      is able to stay in Australia because her court case is not complete – she
      does not say which court case. According to the information from DIMIA her
      appeal to the High Court was refused on 27 April 2005 (she was interviewed on
      31 May 2005) and the date of her subsequent application in relation to
      her visa status was on 8 June 2005 (following the interview) when she
      made a request for Ministerial intervention pursuant to s 48B of the Migration
      Act.

Complainants’
evidence

  1. In C3’s statement dated 13 December 2005 he says (at
    [2]):

Most of us are asylum seekers currently waiting the outcome
of protection visa applications.

Provision of documents about the detainees to
the MPS officials

DIMIA’S evidence in respect of the
general type of information given to MPS officials

  1. DIMIA has advised that it only provided the Chinese delegation with
    information to assist the delegation in identifying the detainees. It denies
    that it provided C8’s or any other detainee’s DIMIA file to the MPS
    officials.


  2. Apart from in relation to C8, DIMIA did not
    advise precisely what information it provided in respect of each individual
    complainant nor did it provide the Commission with a copy of the documents that
    it gave to the MPS officials in respect of each complainant. DIMIA has informed
    the Commission that it provided the following type of information in respect of
    the complainants, assuming it had the information, to the MPS officials:

    • (i) full names and aliases;


    • (ii) date of birth;


    • (iii) place of birth;


    • (iv) address in country of origin;


    • (v) previous employment address;


    • (vi) education details (school and town);


    • (vii) details of family members, including close family, parents, siblings
      (details of children were not divulged if it appeared that there were several,
      or that a previous protection claim may have related to the number of
      children);


    • (viii) arrival details and type of entry (eg, tourist, business
      visitor);


    • (ix) detention date;


    • (x) in a few cases the place at which the complainants had been located by
      DIMIA was given where this may have been relevant to nationality –
      eg, located in Chinese restaurant;


    • (xi) any passport details;


    • (xii) any known identity card details; and


    • (xiii) photocopies of passport, identity card or other identity documents
      where
      available.

DIMIA’s
evidence as to the documents provided to the MPS officials in respect of
C8

  1. DIMIA provided the Commission with a copy of the following documents that it
    says it gave to MPS officials in relation to C8:

    • (i) a bio-data form with space for the MPS officials to include their
      written assessment;


    • (ii) a short questionnaire completed by C8;


    • (iii) a computer print-out of the information submitted by C8 with his
      subclass 300 spouse application lodged in Beijing in 1998;


    • (iv) a PRC passport application form completed by C8 in March 2004;


    • (v) hand-written notes in English on C8’s address in China, details of
      his education and employment in China, the names and dates of birth of his
      parents and siblings and the details of his arrival in Australia and of his
      location by DIMIA officials prior to his detention; and


    • (vi) a copy of four pages from C8’s expired PRC
      passport.


  2. All of the documents DIMIA provided to the MPS officials in respect of C8
    contained the type of information that DIMIA says it provided to the MPS
    officials in respect of each of the complainants (see [133]). The only additional information
    was contained in the short questionnaire completed by C8 which sought details
    of:

    • (i) employment and study undertaken in Australia; and


    • (ii) details of relatives and friends in
      Australia.

Complainants’
evidence

  1. The complainants assert that the MPS officials had documentation and
    information about them. The complainants say the MPS officials knew they had
    sought asylum and had the marriage certificates of some of the detainees.


  2. In C3’s original complaint he said ‘we shock about that four MPS
    officials knew all details of us, including whether we had seeked asylum before,
    even marriage certificates of some detainees’.


  3. C3 in his statement says that ‘[t]he MPS officials had documents and
    copies of documents that were personal for example some had marriage
    certificates that belonged to the detainees’.


  4. C8 in his complaint says that the officials who interviewed him had his file
    – ‘I could see that they were carrying my file in their
    hands’.


  5. Ms Byers also provided the Commission with a copy of a letter from Michelle
    Campbell, the DIMIA Assistant Manager at the Villawood Detention Centre, to a
    District Registrar of the RRT in which she encloses a copy of the forms DIMIA
    gave to the MPS officials in respect of each of the complainants. The forms
    enclosed with Ms Campbell’s letters were:

    • (i) a bio-data form – this was identical to the bio-data form that
      DIMIA gave to the MPS officials in respect of C8; and


    • (ii) a short questionnaire which she says the detainees were asked to
      complete at the beginning of the interview – she said that this was a
      voluntary request. This was identical to the short questionnaire completed by C8
      that DIMIA gave to the
      Commission.

Evidence in the
transcripts of the interviews

  1. I have received transcripts of the interviews
    for 19 of the complainants and three of these transcripts were clearly only very
    partial transcripts of the interviews. Of the 16 transcripts that appear to
    be mostly complete only 6 of them record the complainants being asked questions
    about their protection visa applications. Three of them were asked about this
    issue without having volunteered information about it. In the case of the other
    three, however, the provision of the information about their protection visa
    applications was not made in response to a direct question about this issue.
    Below are the excerpts from the transcripts of the interviews with these
    complainants in which the issue of protection visas arose.

C26
(C26 is Male 2)

Page 31

Male 1: For example, have you ever applied for refugee status?

Male 2: My children did.



C15 (C15 is Male 2)

Page 2

Male 1&3: What do you have in your mine (sic)? So you want to continue to
stay in Australia and get a visa? Do you think you are eligible?

...

Male 1: Have you thought of...Have you lodged an application for a protection
visa?

Male 2: Yes, I have lodged the application.

Male 1: On what grounds?

Male 3: Where has it gone to?

Male 1: Where is your case up to?

Male 2: eh, it is hard to say...



C10 (C10 is Male 2)

Page 9

Male 1: ....Do you still have a passport?

Male 2: No

Male 1: ....(inaudible)

Male2: They applied for a temporary one for me.

Male 1: Was it given to you by the Australian government or you got another
one...

Page 10

Male 2: It was a temporary visa given by the Australian government.

Male 1: Temporary visa. You used your original passport to apply. Since you
didn’t have a passport, you applied for a protection
visa....so...(inaudible)...On what grounds did you apply for a protection
visa?

Male 2: Because I was unemployed, I was a refugee


C23 (C23 is Male 2)

Page 1

‘Male 1: What have you been doing ?

...

Male 1: What kind of work have you done ?

Male 2: Building.

Male 1: Is it O.K. Is it O.K. for such a long time?

Male 2: It is O.K.. (I) have mainly been running a court case. And now...

Male 1: Running a court case?

Male 2: Um.

Male 1: What kind of court case is it?

Male 2: Well.

Male 1: What kind of court case is it?

Male 2: Fighting for refugee status.

Male 1: Fighting for refugee status?

Male 2: Yeah, fighting for refugee status.

Male 2: Oh you want to be a refugee?

...

C21 (C21 is Male 2)

Page 17

Male 1: What should they do now, they also need to, for example, issue a
factual statement to you or..., if you are freed, then how is your family, they
are also worried about that, they also need to take actions in compliance with
the law...(interrupted)

Male 2: If I can apply for a refugee status, I am a refugee.

Male 1: Ah! You are a refugee.

Male 2: Eh, right. We applied for a Falungong website in China, so I am a
Falungong refugee here. They should not treat me like that, isn’t that
right?


C9 (C9 is Male 2)

Page 5

Male 1: So now, (inaudible), what are you going to do?

Male 2: I am going to, this, to lodge appeal.

Male 1: To appeal? What is your grounds?

Male 2: Refugee.

Male 1: Ah?

Male 2: Refugee.

Male 1: Refugee? What kind of refugee?

... [He is then asked questions about the appeal]


C16 (C16 is Female 1)

Page 1

Male: What kind of visa did you have?

Female 1: Was it something called 757 in China? I am not so sure.

Male: 457.

Female 2: Which year?

...

Male: [inaudible]

Female 1: At the time I was applying for refugee status. Applying for refugee
status means that my visa would not expire...


C7 (C7 is Male 2)

Page 7

Male 1: It is impossible to talk with you!

Male 2: People are allowed to... (inaudible) ....cannot treat in such a way, to refugees, some foreigners inside also say what this Chinese person
thinks about. I also do not know how to show my intentions...(interrupted)
(emphasis added)


C2 (C2 is Male 2)

Page 4

Male 1: You came here with someone else’s passport, right? (Background
noise, inaudible) You came here with someone else’s passport?

Male 2: (Background noise, inaudible).

Male 3: Probably with...passport.

Male 2: Yes, it was his when I applied for refugee.

Male 3: Did you use it to apply for refugee or to come here?

Male 2: I used his to apply.

Male 3: For entering Australia (interrupted by Male 2)

SUBMISSIONS

Complainants’ submissions

  1. Ms Byers’ submissions about breaches of the complainants’ human
    rights focus primarily on the manner in which the interviews were conducted
    rather than the fact that they were organised or the provision of personal
    information about the complainants by DIMIA to the MPS officials. The only
    specific comment made by Ms Byers in relation to either of these issues is
    a submission that ‘[a]llowing PBS officials to interview detainees and
    access their information has endangered their lives and returning any of them to
    China will place them in danger and violate art 33 of the Refugee Convention et
    al’. Article 33 of the Convention relating to the Status of
    Refugees    [41] (‘the Refugee
    Convention’) provides:

    Article 33 - Prohibition of expulsion or return
    ("refoulement")

    1. No Contracting State shall expel or return ("refouler") a refugee in any
      manner whatsoever to the frontiers of territories where his life or freedom
      would be threatened on account of his race, religion, nationality, membership of
      a particular social group or political opinion.


    2. The benefit of the present provision may not, however, be claimed by a
      refugee whom there are reasonable grounds for regarding as a danger to the
      security of the country in which he is, or who, having been convicted by a final
      judgement of a particularly serious crime, constitutes a danger to the community
      of that country.

DIMIA’s
submissions

  1. DIMIA in its response refers to the requirement imposed by s 198 of the
    Migration Act that unlawful non-citizens in particular circumstances be removed
    from Australia as soon as reasonably practicable.


  2. The sub-section which is most likely to have applied to the complainants is
    s 198(6) which provides:

(6) An officer must remove as soon as
reasonably practicable an unlawful non-citizen if:

(a) the non-citizen is a detainee; and

(b) the non-citizen made a valid application for a substantive visa that can
be granted when the applicant is in the migration zone; and

(c) one of the following applies:

(i) the grant of the visa has been refused and the application has been
finally determined;

(iii) the visa cannot be granted; and

(d) the non-citizen has not made another valid application for a substantive
visa that can be granted when the applicant is in the migration zone.

FINDINGS OF FACT

Who arranged the interviews?

  1. DIMIA admits and I find that DIMIA initiated and arranged for the interviews
    to take place.

Purpose of the
interviews

  1. Based on DIMIA’s response, DIMIA’s initial letter to the
    Commission and the invitation issued by DIMIA to the MPS in relation to the
    interviews I find the purpose of the interviews was to enable DIMIA to ascertain
    the identity of people in immigration detention:

    • (i) who had been in immigration detention for some time;


    • (ii) who were suspected to be PRC nationals;


    • (iii) who were not cooperating with DIMIA in ascertaining their identity;


    • (iv) whose identities DIMIA had not been able to ascertain sufficiently;
      and


    • (v) who were ready to be deported upon their identity being sufficiently
      ascertained.

    I find that DIMIA needed to identity the
    complainants so as to apply for travel documents to be issued for them so that
    DIMIA could arrange their return, if they were found to be PRC nationals, to the
    PRC. I further find that the interview method was used because of the large
    number of immigration detainees who were suspected to be from the PRC and
    because the interviews would expedite the process of arranging for travel
    documents to be issued.


  2. I further find that:
    • (i) DIMIA’s usual practice is to ascertain the identity of immigration
      detainees with the assistance of the appropriate local consulate;


    • (ii) the interviews the subject of this complaint were the first time
      outside the parameters of a formal memorandum of understanding that DIMIA had
      arranged such interviews to assist in the identification of immigration
      detainees;


    • (iii) the interview process used in this case had been used in the past by
      the UK and The Netherlands in returning unlawful non-citizens to the PRC –
      I do not, however, find that the interview method used by the UK and The
      Netherlands was the method used in this case because I do not have any details
      of the way in which those interviews were conducted;


    • (iv) DIMIA had, in the past, arranged visits by delegations of officials
      from Afghanistan, Pakistan and Vietnam to assist with the identification of
      unlawful non-citizens suspected to be from those countries.

Status of
complainants’ visa applications at the time of their interview

  1. I find that apart from the following complainants, all of the complainants,
    had filed protection visa applications prior to being interviewed by the MPS
    officials:

    • (i) C18; and


    • (ii) C20.

In the case of the above two complainants,
at the time of their interviews, neither of them had any outstanding visa
applications and both had been in Australia without lawful authority for a
considerable period of time.

  1. In the case of the other complainants, based on the information provided by
    DIMIA, I find that at the time they were interviewed:

    • (i) they had had their applications for protection visas refused and that
      refusal had been affirmed by the RRT;


    • (ii) none of them, except for C12, were awaiting the outcome of any sort of
      decision in respect of the refusals to grant them visas; and


    • (iii) in the case of most of them, the most recent refusal was several years
      prior to the interviews.


  2. I find that C12’s application for a protection visa had been refused
    by the Minister and that refusal had been affirmed by the RRT but that at the
    time of his interview he was awaiting the outcome of judicial review proceedings
    in relation to the refusal.

Provision
of information about the complainants by DIMIA to the MPS officials

(i) Information as to the complainants’
protection visa applications

  1. The complainants assert that the MPS officials knew that they had made
    protection visa applications. DIMIA denies this allegation. The complainants do
    not state the basis for this allegation so it is difficult to test its veracity.
    Further, none of the transcripts of the interviews suggest that the MPS
    officials knew, prior to the interviews, about their protection visa
    applications. Of the 16 relatively complete transcripts only 6 of them record
    the complainants being questioned about their protection visa applications and
    in the case of three of the complainants the issue arose because of information
    volunteered by the complainant, not in response to a direct question about this
    issue.


  2. Whilst I accept the complainants’ evidence that they believed that the
    MPS officials had been given information about their protection visa
    applications I do not find that this in fact occurred. I infer from the fact
    that the complainants formed a mistaken belief as to the type of information
    given to the MPS officials that DIMIA did not inform them at the time of the
    interviews what information it had given to the MPS
    officials.

(ii) The provision of
other information about the complainants by DIMIA to the MPS officials

  1. The complainants also suggest that the MPS officials had
    ‘documents’ and ‘information’ about them. The
    complainants do not provide any details about what these documents or
    information were apart from saying that the officials knew that they had sought
    asylum and had the marriage certificates of some of the detainees. Above I have
    commented on the allegation about the provision of asylum information to the MPS
    officials. A marriage certificate is a document that would assist in
    ascertaining the identity of a person and the provision of such information is
    consistent with DIMIA’s evidence that it gave the MPS officials
    information about the complainants that would assist them with the
    identification of the complainants. Accordingly, on the basis of the
    complainants’ evidence I could find no more than that the MPS officials
    had information and documents about the complainants.


  2. C8 goes further than the other complainants and asserts that the MPS
    officials had his ‘file’ by which I assume he is referring to his
    DIMIA file. C8 does not state the basis for that belief or describe the document
    that he saw that was his ‘file’ and it may be that what he thought
    was his ‘file’ was simply a file containing the forms that DIMIA
    admit having given to the MPS officials. I do not think that C8’s
    evidence, given its general nature, is sufficient to satisfy me that the MPS
    officials had his DIMIA file.


  3. I am, however, satisfied that DIMIA gave the MPS officials the following
    type of information about the complainants and their families in so far as they
    had it:

    • (i) full names and aliases;


    • (ii) date of birth;


    • (iii) place of birth;


    • (iv) address in country of origin;


    • (v) previous employment address;


    • (vi) education details (school and town);


    • (vii) details of family members, including close family, parents, siblings
      – although I accept DIMIA’s evidence that if a complainant had more
      than one child the additional child’s details were not disclosed;


    • (viii) arrival details and type of entry (eg, tourist, business
      visitor);


    • (ix) detention date;


    • (x) in a few cases the place at which the detainee was located by DIMIA
      officials was given where this may have been relevant to nationality – eg,
      located in Chinese restaurant;


    • (xi) any passport details;


    • (xii) any known identity card details;


    • (xiii) photocopies of passport, identity card or other identity documents
      where available;


    • (xiv) details of employment or studies in Australia; and


    • (xv) details of relatives and friends in Australia and their contact
      number.


  4. I find that the above type of information was relevant to ascertaining the
    identity of the complainants.

CONCLUSIONS REGARDING ALLEGED
BREACHES OF HUMAN RIGHTS

  1. The human rights I have considered to be relevant to assessing DIMIA’s
    acts of arranging the interviews and providing the MPS officials with personal
    information about the complainants are arts 10(1) and 17(1) of the ICCPR. As I
    have said earlier, art 10(1) is breached if the Commonwealth fails to treat
    detainees with humanity and respect for their dignity. Article 17(1) is breached
    if the Commonwealth arbitrarily interferes with the privacy of the detainees. I
    consider these below.

Arranging the
interviews

Findings in respect of complainants other than
C12

  1. I do not find that merely arranging the interviews in itself constituted a
    breach of the complainants’ human rights under either arts 10(1) or 17(1)
    because:

    • (i) DIMIA had a legitimate purpose for arranging the interviews; and


    • (ii) the interviews were a reasonable means of achieving that purpose.


  2. The purpose of the interviews was to identify the detainees as quickly as
    possible so as to facilitate their return to the PRC. It is, in my view,
    desirable that once it is definitively determined that a person is not entitled
    to remain in Australia, the Australian Government acts to remove them as soon as
    reasonably practicable so as to ensure that they are not held in detention for
    any more time than is absolutely
    necessary.[42]


  3. I think that achieving that purpose through the use of the interviews in
    this case was reasonable because:

    • (i) DIMIA had a large number of detainees suspected to be from the PRC to
      identify and the majority of whom had been in immigration detention for some
      time;


    • (ii) in the case of all of the complainants who had applied for protection
      visas they had had their applications for protection visas refused by the
      Minister and that refusal had been upheld by the RRT and none of them, except
      for C12 were awaiting any decision in relation that refusal;


    • (iii) DIMIA had been unable to sufficiently ascertain the identity of the
      complainants;


    • (iv) the conduct of interviews by PRC officials was the quickest way of
      identifying them; and


    • (v) a similar process had in the past been used by the UK and The
      Netherlands in returning unlawful non-citizens to the
      PRC.

DIMIA’s
provision of personal information about the complainants to the MPS
officials

  1. I do not find that DIMIA’s provision of personal information about the
    complainants to the MPS officials constituted a breach of either arts 10(1) or
    17(1). Whilst the giving of the personal information about the complainants and
    their families to the MPS officials interfered with their privacy I do not think
    that this constituted an ‘arbitrary’ interference. The interference
    was not arbitrary because DIMIA had a legitimate purpose for disclosing the
    information, namely to assist in the identification of the complainants. For the
    same reasons I also do not think that the provision of the information
    constituted a breach of
    art 10(1).

Findings in relation
to C12

  1. In the case of C12 he was, at the time of his interview, still awaiting the
    outcome of judicial review proceedings. Therefore in his case DIMIA did not, at
    the time of his interview, necessarily have an obligation or an entitlement to
    deport him. If his application for review had been successful DIMIA would not
    have had to ascertain sufficient information about his identity to secure travel
    papers for him. The interview and the disclosure of his information may
    therefore have been unnecessary. The interview and the disclosure of his
    personal information and that of his families was, however, arguably reasonable
    because:

    • (i) there was a reasonable chance he would still have to be deported given
      that judicial review proceedings are only successful in limited circumstances
      and even if successful it does not necessarily result in a person being granted
      a protection visa; and


    • (ii) the MPS officials were only in Australia for a limited period of time
      and would not necessarily return to conduct further interviews.


  2. I am not satisfied, on the balance of probabilities that arranging the
    interview with C12 and disclosing his personal information and that of his
    family was so unreasonable as to constitute a breach of arts 10(1) or
    17(1).

PART F: MANNER IN WHICH
THE INTERVIEWS WERE CONDUCTED

EVIDENCE

Preparation prior to interviews

  1. In DIMIA’s response it states as follows:

    Departmental
    liaison officers met with the [Chinese] delegation... discussed with its members
    the type of questioning they could employ in interviews. Members of the
    delegation were informed that they should restrict questioning to matters used
    for identity verification and that they were not to ask detainees about their
    immigration history. The departmental officers were confident that members of
    the delegation understood these guidelines. There was however, no formal
    briefing or written guidelines on the interview protocols and the procedures to
    be used in the identification process.


  2. DIMIA does not set out the conversation the departmental officers had with
    the members of the Chinese delegation in full nor does it set out the
    circumstances of the conversation. Further, it does not advise of the basis
    upon which the DIMIA staff formed the view that the members of the delegation
    understood the guidelines given to them by DIMIA
    staff.

What the complainants were
told about the purpose of the interviews and the identity of the officials
conducting the interviews

Complainants’ evidence

  1. In C3’s statement dated 13 December 2005 he states (at
    [3]):

On 13 May 2005, I and 21 other Chinese detainees were called
for interviews...We believed that DIMIA would be interviewing us and making
assessments of our visa applications. Instead four MPS officials interrogated
us...

at [4]

We asked the MPS officials where they were from, if they were from the
Embassy or Consulate, but they would only tell us that they were from
‘China’. We asked the MPS officials for identification but they
would not provide this, they only had a Visitors Pass from VIDF.

and at [5]

We do not know why we were interrogated by four MPS officials instead of
DIMIA officers.

  1. In C3’s original complaint to the Commission he said:

    We
    have to doubt the real background of four MPS officials as we know and
    Australian media reported, Chinese consulate in Sydney didn’t know where
    they are from.


  2. In C14’s affidavit affirmed 22 November 2005 he states (at
    [4]):

    We believed that the Department of Immigration &
    Multicultural and Indigenous Affairs would interview us and make assessments of
    our visa applications and not MPS officials.

at [6]

the complainants were called ‘for interrogation with what the
Department of Immigration & Multicultural and Indigenous Affairs called
interrogators’

and at [8]

It is not clear why we were interrogated by these four officials instead of
Department of Immigration & Multicultural and Indigenous Affairs
officials.

  1. In C25’s statement dated 19 December 2006 she states (at
    [1]):

    I have heard from some other fellow Chinese detainees that
    some Stage 2 and Stage 3 Chinese detainees were interviewed by an unknown group
    of Chinese people. On that morning one GSL officer called me to go to DIMIA
    interview room. One fellow detainee warned me that there is a rumour in
    detention that some underground Chinese Government officials are trying to force
    some Chinese detainees to sign some documents. I was warned that this
    interview might be the one and to be careful as they work for the Chinese
    Government.

at [2]

    I tried to enquire what it is all about. They are an Australian Chinese
    cultural exchange group or something like that; I did not understand exactly who
    they are.

  1. In C2’s statement he states (at [3]):

    I was not told why I
    was being interviewed.

    at [4]

    I was interviewed by four MPS officials...They did not provide me with their
    names. They only said that they were from the Chinese consulate. I later learnt
    that they were from the Chinese national security bureau.


  2. In a letter sent on behalf of C2 to the then Minister for Immigration and
    Citizenship dated 12 October 2007 seeking Ministerial intervention in
    relation to the refusal to grant C2 a protection visa it states:

C2
explained that he was terrified throughout the interrogation because at the very
beginning of the interview the MPS officials had threatened that if he lied they
would know because they have all his details. Hence C2 thought it was better to
say too much than too little, C2 outlined what happened at the start of the
interview and said something to the effect:

    They pushed very hard and terrified me. They already knew a lot about me.
    They said ‘We know everything about you in detail so you must tell us
    everything and do not lie. This way it will be better for you and for your
    family too. We know everything you have done in China and Australia    .

  1. The letter goes on to suggest that the transcript of the interview with C2
    does not record what C2 was told at the beginning of the interview with the MPS
    officials. It is said:

    It is questionable why the beginning of the
    tape was not transcribed since, from C2’s account, it would explain why he
    appeared to volunteer information which would place him and his family in great
    danger.


  2. The transcript of the interview with C2 does not record him being told
    anything about the identity of the officials interviewing him or the purpose of
    the interviews but the way the transcript begins suggests that perhaps not all
    of the first part of the interview was recorded. The transcript of his interview
    commences:

    Male 1: We can’t probably match what you just said,
    you see (interrupted by Male 2)

    Male 2: Then (interrupted by Male 1)

    Male 1: There is nothing. You can write (inaudible), but the problem is. You
    can write whatever you like. What’s your home address?

DIMIA’S response

  1. In a letter from DIMIA to the Commission dated 19 March 2008 it
    states:

    The department concedes that the complainants were not
    provided with an adequate explanation of the purpose of the interviews or an
    appropriate explanation of the identity of the interviewing officials.


  2. In terms of the identity of the officials who conducted the interviews the
    evidence from DIMIA is as follows.


  3. According to DIMIA the interviews were conducted by 3 identity verification
    experts from the MPS and a locally engaged Departmental staff member from the
    Australian Consulate-General in Shanghai (she was a Chinese local working for
    the Australian Consulate-General but still in the employment of the Chinese
    government).


  4. The locally engaged Departmental staff member was originally only going to
    stay for the first three days of the MPS officials’ visit, however, as the
    MPS officials did not speak very good English she remained to act as an
    interpreter for them. DIMIA had requested that the MPS officials who were to
    conduct the interviews have a good grasp of English. DIMIA’s request was
    not met and the MPS officials who were sent to conduct the interviews did not
    have a good grasp of English. At such short notice DIMIA was unable to arrange
    any other suitably qualified Chinese language speaker to act as a translator so
    the locally engaged Departmental staff member stayed for the duration of the
    visit to act as an interpreter.


  5. The invitation issued by DIMIA to the MPS in relation to the interviews
    states the following in relation to the ability of the MPS officials to speak
    English:

    at least one of them [the experts] will be able to speak
    English to communicate with colleagues from DIMIA.


  6. The Department’s Principal Migration Officer – Compliance from
    Shanghai was present during the first interview, however, the members of the
    Chinese delegation expressed concerns about the cramped conditions of the
    interview room and requested that the number of interview participants be
    reduced. The Departmental officer agreed to this request and sat outside but
    just next to the door to the room and visually monitored the interview. Two
    DIMIA officers took turns sitting outside the room. Neither of them spoke
    Mandarin and they were not accompanied by an
    interpreter.

Evidence in the
transcripts of the interviews

  1. The transcript of the interview with C12 discloses that he was not told
    anything about the identity of the officials interviewing him or the purpose of
    the interviews because he refused to be interviewed until he had spoken to an
    immigration officer.


  2. The transcript of the interview with C2 does not record him being told
    anything about the purpose of the interview or the identity of the officials
    but, for the reasons explained above, this may be because this part of the
    interview was not recorded.


  3. According to the transcripts with the other complainants that were available
    they were told varying things about the identity of the interviewers and the
    purpose of the interviews.


  4. Some were not told anything about the identity of the interviewers, some
    were told they were from the Chinese government or mainland China and some were
    told that they were employed by DIMIA to conduct the interviews.


  5. All of them were told varying things about the purpose of the interviews,
    but what each of them was told suggested that the interview was a general chat
    to ascertain the situation of the complainant and an opportunity for the
    complainant to share any concerns that they had about their situation or their
    detention and that the interviewers were there to assist the complainants. None
    of the complainants that the Commission has the transcripts of interviews for
    was clearly told that the purpose of the interview was to assist the Australian
    Government confirm their identity to enable travel documents to be issued for
    them. The following is a summary of the varying things the complainants were
    told about the purpose of the interviews and the identity of the
    interviewers:

    • (i) Six of the complainants (C24, C5, C19, C1, C13 and C21) were not given
      any information about the identity of the interviewers and were told little
      about the purpose of the interviews. These complainants were asked questions
      about their conditions in detention and the interviewers expressed concern for
      their welfare. The questioning by the MPS officials and the expression of
      concern by them for the complainants’ welfare would have given them the
      impression that the purpose of the interviews was to ascertain whether they were
      being treated properly and to assist them with any concerns that they had.


    • (ii) Four of the complainants (C26, C9, C23, and C10) were told that the
      interviewers were from mainland China and that they were there to find out about
      the complainant’s situation and any concerns they had, and, if possible,
      to assist them. C26 was told that the interviewers had nothing to do with DIMIA,
      whereas some of the other complainants were told that the interviewers were
      assisting DIMIA.


    • (iii) Four of the complainants (C15, C4, C16, C7) were told that the
      interviewers were employed by DIMIA to conduct the interviews. They were further
      told that the interviewers wanted to learn about the complainant’s
      situation and concerns and the complainants should tell them anything they
      wanted DIMIA to know about their situation. Again the interviewers gave the
      complainants the impression that they were there to assist them.

Invitation issued by DIMIA
to the MPS in relation to the interviews

  1. The invitation that records the agreement between DIMIA and the MPS about
    the interviews states the following about the MPS officials who conducted the
    interviews:

    The Chinese experts will work 5 days a week, for 8 hours
    a day. A payment equivalent to DIMIA officer’s salary of $A77 per day and
    a standard DIMIA travel allowance of $A88.55 (which includes meals and
    incidentals) will be paid by DIMIA to the Chinese experts. If working overtime
    is requested by DIMIA, an agreement will be reached between DIMIA and the
    Chinese experts and the standard DIMIA overtime allowance will be paid to the
    experts. DIMIA will meet the experts’ international travel costs.

    DIMIA will provide the Chinese experts with communication (fax and telephone)
    and working facilities as well as relevant expenses for work as allowed under
    DIMIA conditions of service. If necessary, the Chinese experts may contact the
    Chinese Embassy in Australia and their work unit which despatches them. DIMIA
    will take the same steps to ensure the personal security of the Chinese experts
    in Australia as it does for its own staff...Travel insurance will be provided to
    the Chinese experts by QBE Insurance...DIMIA will meet the experts’ travel
    costs and will provide suitable accommodation as near to their working place as
    possible...

    Officers from DIMIA will be present throughout the interviews with the
    Chinese experts. If DIMIA is not satisfied with the work of the Chinese experts,
    DIMIA will first advise the Chinese side of reasons in detail and then resolve
    the issue through consultation by both sides.

Manner in which interviews were
conducted

  1. In its response to the third complaint DIMIA concedes that its arrangements
    for supervision of the interviews were inadequate and that the process was
    flawed.


  2. DIMIA also say, however, that the two DIMIA officers who sat outside the
    room did not observe any behaviour during the interviews that caused concern and
    that the locally engaged Departmental staff member from China was questioned
    about the interviews both during and after the delegation visit and she stated
    that she did not witness any inappropriate questioning or harassment.


  3. DIMIA concede, however, that the DIMIA officers did not understand Mandarin
    and were not accompanied by an interpreter and as such were unable to discern
    whether any verbal harassment or inappropriate questioning was taking place.


  4. Further, DIMIA concede that the ability of the locally engaged Departmental
    staff member from China to judge whether inappropriate questions were being
    asked and whether any harassment was taking place was impaired by:

    • (i) the nature of her employment arrangements – that is that she was
      an employee of the Chinese government;


    • (ii) she had limited knowledge of the protection visa regime and what type
      of questions would and would not be appropriate; and


    • (iii) it was unclear whether she was given a clear explanation of her
      role.


  5. In DIMIA’s initial letter to the Commission it states that the
    Department’s standard practice for interviewing detainees was not followed
    and the consent of the individuals for tape recording was not obtained and dual
    tape recordings were not made. It also concedes that the detainees were not
    provided with a copy of the recording at the time or shortly after the
    interviews.

Information disclosed
during the interviews

Complainants’ evidence

  1. In C3’s statement he says (at [4):

    They [the MPS
    officials] asked us whether we had made applications for protection visas and
    also how much money we had made in Australia, whether we had bought houses in
    China or sent money back to China and a lot of questions and some detainees
    refused to answer their questions. They knew my family members details but they
    asked us to tell them again.


  2. In C25’s statement she says she was asked and answered the following
    questions during her interview:

(at [5])

  1. When did I come to Australia?


  2. How did I come to Australia?


  3. Do I have a Chinese passport?


  4. How long I stayed in detention?


  5. What job I used to do outside for living?


  6. Why did not I give my Chinese ID to DIMIA?

(at [6])


  1. How much money I earned in Australia?


  2. How much money I paid to travel in Australia?


  3. Could I give him the contact details of that person who helped me to get a
    false Thai passport and visa?
  1. In C2’s statement (at [5]) he says:

    The MPS officials
    asked me questions about my family situation, my address in China and background
    details of my time in China. They also asked me questions about how I arrived in
    Australia and what I have been doing in Australia. The MPS officials asked me
    whether I had lodged an application for a Protection Visa. I don’t think I
    had any on-going visa applications at this time.

DIMIA’s response

  1. DIMIA admits that ‘[i]n some interviews, questions asked extended
    beyond matters related to establishing identity’ (DIMIA’s initial
    letter to the Commission) and that ‘in some cases, the questions asked by
    the delegation were broader than intended’ (DIMIA’s
    response).

Evidence in the
transcripts of the interviews

  1. The transcript of the interview with C12 discloses that he was not asked any
    questions apart from whether he had spoken to an immigration officer lately. The
    transcript discloses that this was because he refused to answer any of the MPS
    official’s questions prior to speaking to an immigration officer.


  2. The transcripts for the other complainants that the Commission has disclose
    that these complainants were all asked for personal information about themselves
    and their families, including, names, dates of birth and contact details of
    family members, information about the complainants’ occupations in China
    and in Australia, details about the complainants’ spouse’s
    occupations, details about the health of their parents and of the complainants
    and who was looking after their parents in China and how they came to be in
    Australia.


  3. Further the following complainants disclosed the following type of
    information in response to their questioning:
  • (i) What they intended to do in the future in relation to remaining in
    Australia or not – C5, C19, C13, C21 and C15.

For
example:

C5

Page 3

Male 1: ‘What did you intend to do here (Inaudible)?

Male 2: Ah (inaudible).

Male 1: You are staying here. Do you want to go out, want to go back to
China or want to apply for residence?’

 

C19

Page 12

Male 4: In your heart you really don’t want to go back, is that it?


C13

Page 14

Male 1: What is your plan for the future? Do you want to go back to your
country or you want to stay at home, or...


C21

Page 14

Male 1: Do you want to return to China?


C15

Page 2

Male 1&3: What do you have in your mine (sic)? So you want to continue to
stay in Australia and get a visa? Do you think you are eligible?

  • (ii) Visa applications they had made since arriving in Australia – C5,
    C26 and C24.

For example:

C5

Page 3

Male 1: ‘Have you applied for a bridging visa?’ (p.3)


C26

Page 31

Male 1: Since your arrival (in Australia), have you ever applied for
migration with the Department of Immigration?

Male 2: No


C24

Page 4

Male 1: Ooh...what is your thought? (not audible). Are you taking any legal
action?


[He was then asked questions about his bridging visa]

  • (iii) Whether they had applied for a protection visa – C26, C15 and
    C10.

For example:

C26 (C26 is Male 2)

Page 31

Male 1: For example, have you ever applied for refugee status?

Male 2: My children did.


C15 (C15 is Male 2)

Page 2

Male 1&3:What do you have in your mine (sic)? So you want to continue to
stay in Australia and get a visa? Do you think you are eligible?

...

Male 1: Have you thought of...Have you lodged an application for a protection
visa?

Male2: Yes, I have lodged the application.

Male1: On what grounds?

Male3: Where has it gone to?

Male1: Where is your case up to?

Male2: eh, it is hard to say...


Page 3

Male 1&3: Which court are you up to? Still at...? Have your case gone to
the federal Court yet? Or it is still...

C10 (C10 is Male
2)

Page 9

Male 1: ....Do you still have a passport?

Male 2: No

Male 1: ....(inaudible)

Male 2: They applied for a temporary one for me.

Male 1: Was it given to you by the Australian government or you got another
one...

Page 10

Male 2: It was a temporary visa given by the Australian government.

Male 1: Temporary visa. You used your original passport to apply. Since you
didn’t have a passport, you applied for a protection
visa....so...(inaudible)...On what grounds did you apply for a protection
visa?

Male 2: Because I was unemployed, I was a refugee

  • (iv) Questions concerning their protection visa applications. As I indicated
    earlier in some of the cases where the detainees disclosed information about
    their protection visa applications it was not in response to a direct question
    on this issue. In these cases, however, the MPS officials continued to ask the
    detainees about their applications. The complainants who were asked for
    information about their protection visa applications were C23, C21, C9, C16, C7
    and C2. I have previously set out excerpts from the transcripts that record some
    of the questioning about this issue (see [141]).


  • (v) Court proceedings commenced by the detainees in Australia -
    C26.

For example:

C26 (C26 is Male 2)

Page 5

Male 1: Why did you come to Australia?

Male 2: Originally...because I had a daughter already, China does not allow
(people) to have two children.

Male 1: I see, so you came to Australia to have a second child.

...

Male 1: Where is your wife now – also in Australia?

...

[Asked some questions about where wife is located and then ..]

Male 2: (We) lost the court case.

...

Male 1: What is the legal case about?

Page 6

    Male 2: My children were born here.

  • (vi) Their religious beliefs – only five detainees were asked
    questions about this – three were Falungong followers, one was a Catholic
    who was a member of an underground Church in China and in the case of the fifth
    complainant his answer to the question about his religious beliefs is recorded
    as being ‘inaudible’.

The detainee whose answer to the
question was not audible was directly asked about his religious beliefs.

In the case of the other detainees they were not directly asked about this
issue but the information came out in their response to a question about a
different topic. Nonetheless, once the information had been provided the MPS
officials continued to ask two of them further questions about this topic. In
the case of one of the detainees he had been told by the MPS officials that they
were employees of DIMIA and he should tell them anything he wanted DIMIA to
consider.

The complainants who were asked about their religious beliefs were –
C23, C21, C4, C19 and C2.

For example:

C23 (C23 is Male 2)

Page 1

Male 1: What is your reason as a refugee?

Male 2: Um.

Male 1: What is your reason...as a refugee?

Male 2: Falungong.

Male 1: (Laughing). Have you done it?

Male 2: Well?

Male 1: Have you done it?

Page 6

Male 1: Do you know how to practice Falungong, I wonder?

Male 2: Um?

Male 1: Do you know about Falungong?


C21 (C21 is Male 2)

Page 17

Male 1: What should they do now, they also need to, for example, issue a
factual statement to you or..., if you are freed, then how is your family, they
are also worried about that, they also need to take actions in compliance with
the law...(interrupted)

Male 2: If I can apply for a refugee status, I am a refugee.

Male 1: Ah! You are a refugee.

Male 2: Eh, right. We applied for a Falungong website in China, so I am a
Falungong refugee here. They should not treat me like that, isn’t that
right?

Male 1: Ah, you are...(inaudible)...?

Male 2: Eh, I am a member of Falungong

Page 18

Male 1: Eh, you are a member of Falungong?

Male 2: Eh, yes.

...

Male 1: Eh I see. Are you still practising Falungong?

...

Page 19

Male 1: Did you bring any Falungong materials with you when you left China
?

...

Male 1: Did you practice Falungong before or after you came here?

...


C4 (C4 is Male 2)

Page 7

Male 1: Ah! How do you feel now? Do you think you have any hope of getting
out?

Male 2: I think so. To tell you the truth, I have never had so big hope.

Male 1: What (inaudible) I can do to help in the legal perspective?

Male 2: Because they haven’t accepted my case now because I
haven’t handed in my passport. They have just accepted my application at
RRT with the help of many people, the church and friends outside. Because I am a
catholic originally at home, I was a member of the underground church and the
priests and sisters back home all knew it. You also know the current situation
in mainland China where people with religious opinions are badly persecuted.
This is not that I tell you as it is the true situation. The priests and sisters
in Australia have also proved my religious belief.

 

C19 (C19 is Male 2)

Page 12

Male 4: In your heart you really don’t want to go back, is that it?


Page 30

Male 3: Religious beliefs. Churches.


(Translator’s Note: There are 30 seconds of conversations between Male
2 and Male 3 which are inaudible)


C2 (C2 is Male 2)

Page 8

Male 1: In the name of which reason did you make the refugee application?

Male 2: In...name.

Male 1: No, not in whose name, but in the name of which reason?

Male 2: For the reasons of a deserter and Fa Lun Gong.

Male 3: (laughs) Fa Lun Gong.

Male 1: You had already left the army before you left China, right?

  • (vii) C26 was questioned about the number of children that he had contrary
    to the policy in the PRC that is commonly referred to as the one child policy.
    As was the case with the questioning in relation to protection visa applications
    and religious beliefs this information was not disclosed in response to a direct
    question about the issue. Below is the extract from part of the transcript of
    C26’s interview where this issue was discussed.

C26 (Male 2 is C26)

Page 5

Male 1: Why did you come to Australia?

Male 2: Originally...because I had a daughter already, China does not allow
(people) to have two children.

Male 1: I see, so you came to Australia to have a second child.

Male 2: At that time (we) didn’t intend to come here to have more
children. We wanted to made some money and then go home. Then (we) gave birth to
one, to two children.

Page 9

Male 1: ...You might as well write down the names of your children. Here too,
name (of you child) in China. Were the children born here?

Male 2: Yes.

Male 1: How many were born here – one or two?

 

Page 10

...

Male 2: Two.

Male 1: Write down also the name of the child in China. Are all three of them
yours?

Male 2: Yes. Ah, not the male in the middle.

Male 1: Ah.

Male 2: (not audible).

Male 1: Are all three of them yours?

Male 2: Yes. (not audible). Huan, Huan

...

Page 16

...

Male 1: (not audible) it also wastes our time, doesn’t it? (If you lie)
We not only are not able to help you, but also it will make matters worse.

Male 2: I don’t want to go back because there will be penalties in
relation to my children. Family planning fines are very hefty.

Male 1: Why should you be fined since both your children were born here?

Male 2: Yes. I will be fined if I return.

Male 1: Will you be penalized for having your children here?

Male 2: Yes. Yes. Yes. The newspaper here reported....

Male 1: You won’t be penalized if the children were born overseas.

Male 2: What?

Male 1: Maybe you won’t be penalized if born overseas.

...


  • (viii) C2 was questioned about his conviction for criminal offences in
    Australia. The information he disclosed about the offence during the interview
    was as follows:

(Male 2 is C2)

Page 8

Male 1: Were you locked in other places?

Male 2: Yes, in prison.

Male 1: Also in prison?

Male 2: Yes.

Male 1: How come?

Page 9

Male 2: Because how should I explain this? Because that person I (inaudible)
a person who is resident here is a very good friend of her. I was originally
doing importing and exporting in trading business, from and to China
(inaudible).

Male 1: Ok.

Male 2: As I am not a resident, so the business should be controlled by a
resident...After the company is registered, I just transfer my money into her
account, we cooperate together.

Male 1: Ok.

Male 2: However, (inaudible) that day I came across her, (inaudible) I asked
her for the money back, and she said she wouldn’t give me back. I said
(inaudible), and then hit her once, once. She said ‘ok, ok I would, and
would give the money right now’. I said you’d better ask your
parents out and we could talk about this, as we were all there, together with so
many people. I said to ask your boyfriend and parents out and talk together
about how to return this amount of money. It was difficult to return immediately
at such a young age. This amount of money you know? She said ok. Later
(inaudible), said nothing, went to Chinatown. And the next day I was sued for
kidnapping and robbery.

The above excerpts from the transcripts are not a complete record of the
discussion of these issues, they only record part of the discussion of these
issues.

Allegations of what happened to family members
of detainees after interviews

  1. C3 alleges in his statement (at [7]) that following the interviews some of
    the families of detainees in China ‘had been disturbed and interrogated by
    Chinese local police’.


  2. C25 alleges in her statement (at [13]-[14]) that following the interview MPS
    officials visited friends of her parents and asked them about her whereabouts.
    Her mother also received unidentified phone calls from a person alleging to be
    her friend and asking for information about her. C25 further alleges that
    Chinese officers interrogated her parents for more than 12 hours following
    her interview.


  3. C2 says in his statement (at [9]):

    Since the interviews, my
    family in China has been harassed by Chinese authorities. I believe that this is
    directly connected to the interview that was conducted in May 2005. Chinese
    police officers have gone to my parent’s home on many occasions and
    smashed their property. In January 2007 I was issued a summons from Chinese
    authorities so they could interrogate me. This summons was sent to my
    family’s home in China. Because I was not in China, the summons was issued
    to my parents and they were interrogated. I have only had occasional contact
    with my parents as I do not want them to be harassed by Chinese authorities.

Impact of interviews and separation detention
on the complainants

  1. In the initial complaint received from C3 he said:

    Manning
    detainees were bogged down in pain and horror. Felt betrayed by DIMIA and fear
    to suffer political persecution if we are deported to China.


  2. In C14’s affidavit he states ([15] and [16]):

    we felt
    threatening and frightened

    We could not eat or sleep since we did not know what would happen to us.


  3. In C25’s statement ([4]) she says that during the interview she
    stopped filling out the form she was asked to complete:

    Out of fear
    of deportation...I had fear for my family too. I suspected that if I fill out
    the family details column of that form they might persecute my family too.


  4. C2 in his statement says (at [7]):

    I was scared sitting in front
    of the MPS officials and nervous about answering their questions.


  1. Ms Byers advises that since the interviews the complainants have lived in
    fear of deportation and the affects on family members in
    China.

SUBMISSIONS

Complainants’ submissions

  1. Ms Byers in her letter to the Commission dated 30 October 2006
    states that ‘DIMA was negligent in how MPS officials were allowed to run
    the interviews for the following reasons:

    • (i) the interviews did not meet Australian laws, for example, interviews
      were taped without consent;


    • (ii) there were no interview guidelines or protocols and procedures to be
      used in the identification process;


    • (iii) no DIMIA official was present during the interviews to ensure
      questions were only asked about identity;


    • (iv) there was no need to have the locally engaged Departmental staff member
      involved in the interview process and DIMIA has not provided an explanation for
      her presence;


    • (v) no vetting of interviewees to ensure no one had any matters outstanding
      in the Federal/High Court or Australian-born children outside the One Child
      Policy was interviewed;


    • (vi) the interview transcripts have been tampered with; and


    • (vii) DIMIA cannot guarantee that the MPS officials and the locally engaged
      Departmental staff member did not take their information back to
      China.’


  2. In a subsequent letter from Ms Byers to the Commission dated
    5 December 2006 she adds the following matters as forming the basis of
    her clients’ complaint:

    • (i) DIMIA failed to use an independent accredited interpreter during the
      interviews;


    • (ii) DIMIA did everything that the MPS officials wanted without any
      consideration of the rights of the detainees;


    • (iii) the MPS officials misinformed the detainees by telling them that they
      will never be released from detention without a passport, they had no future in
      Australia, they will stay in detention forever, the One Child Policy has been
      relaxed in China and there are not fines for ‘black children’, the
      detainees were causing trouble for the Embassy and the Chinese Government, they
      were employees of the Australian immigration department, that ordinary Falun
      Gong practitioners are not persecuted in China.


  3. Further, in Ms Byers’ letter to the Commission dated
    5 December 2006 she asserts that DIMIA breached the confidentiality of
    the detainees in that it allowed MPS officials to interview the detainees
    without any direct supervision, guidelines or protocols to access information
    from detainees that did not relate to their identification. She then refers to
    ss 336E and F, 431, 439 and 91 X of the Migration Act. Ms Byers does not explicitly state that DIMIA breached these sections. I understand her to be
    referring to these sections more to emphasise that the sections disclose a
    recognition by Parliament of the confidential nature of information provided by
    applicants for protection visas. These sections provide as
    follows:

Section 336E

Section 336E provides that a person commits an offence if they cause the
disclosure of ‘identifying information’ and the disclosure is not a
permitted disclosure.

Section 336F

Section 336F gives the Minister the power to authorise the disclosure of
identifying information in certain circumstances.

Section 431

Section 431(1) prohibits the RRT from publishing any statement which may
identify an applicant or any relative or other dependent of an applicant.

Section 439

Section 439 prohibits the disclosure of information or a document concerning
a person that is obtained by a member or acting member of the RRT, an officer of
the RRT or a person providing interpreting services in connection with a review
by the RRT in the course of performing their functions or duties or exercising
their powers under the Act. The section also provides that such persons cannot
be compelled to produce such documents or information.

Section 91X

Section 91X provides that the Federal Court, High Court and Federal
Magistrates Court must not publish the names of applicants for protection
visas.

  1. Ms Byers also cites extracts from the United Nations High Commission on
    Refugees Representation in Japan’s Advisory Opinion on the rules of
    confidentiality regarding asylum information     dated 31 March 2005
    (‘the UNHCR Advisory Opinion’) as evidencing the risk faced by
    asylum seekers if their confidential asylum seeker information is disclosed. She
    cites the following passages:

    1. Regarding persons found not to be in need of international protection (that
      is, rejected cases after exhaustion of available legal remedies), the limited
      sharing of personal data with the authorities of the country of origin is
      legitimate in order to facilitate return, even if this is without the consent of
      the individuals concerned. Such cases usually arise when nationality is in
      question and/or the individual has no national travel or identification
      documents. However, disclosure should go no further than is lawful and necessary
      to secure readmission, and there should be no disclosure that could endanger the
      individual or any other person, not least disclosure of the fact that the
      individual has applied for asylum. Moreover, in the first instance everything
      should be done to secure the voluntary nature of
      return.

    ...

    1. Secondly, sharing with the country of origin, information about the asylum
      seeker, including the fact itself that the person applied for asylum, may
      constitute an aggravation of the person’s position vis-à-vis the
      Government alleged to be responsible for his persecution. In a situation where
      the initial elements of the claim presented by the asylum-seeker would not lead
      to inclusion, sharing of confidential information with the country of origin,
      could well lead to the asylum seeker becoming refugee sur place.


    2. Thirdly, this practice may endanger any relatives or associates of the
      asylum seeker remaining in the country of origin and may lead to a risk for
      retaliatory or punitive measures by the national authorities against
      them.

    ...23. UNHCR shares the legitimate concern of States to
    clearly distinguish between persons who need international protection and those
    who have no valid claim for refugee status. It is a State’s prerogative,
    and in fact its duty, to make a determination on refugee status based on all
    available evidence presented in the case. Human rights standards prescribe the
    State’s obligation to protect the right to privacy of the individual and
    its inherent protection against information reaching the hands of persons not
    authorized to receive or use it. The possible risks to the individual
    asylum-seeker caused by information reaching the wrong people, but also the
    detrimental effect of misuse of information to the asylum system as a whole are
    very serious in nature. Consequently, strict adherence to the fundamental
    principles and refugee protection is vital, and exceptions should only be
    allowed under well-defined and specific circumstances.


  2. Ms Byers also refers to art 25 of the Refugee Convention which
    provides:

Article 25 -Administrative
assistance

  1. When the exercise of a right by a refugee would normally require the
    assistance of authorities of a foreign country to whom he cannot have recourse,
    the Contracting States in whose territory he is residing shall arrange that such
    assistance be afforded to him by their own authorities or by an international
    authority.


  2. The authority or authorities mentioned in paragraph 1 shall deliver or cause
    to be delivered under their supervision to refugees such documents or
    certifications as would normally be delivered to aliens by or through their
    national authorities.
  1. Finally Ms Byers submits that as a result of the detainees participation in
    the interviews they fear persecution if returned to the PRC and have become
    refugees sur
    place    .

DIMIA’s
submissions

  1. DIMIA has not provided any detailed legal submissions. DIMIA denies that in
    relation to any of the detainees who were interviewed the evidence available
    supports a conclusion that Australia’s international obligations have been
    breached.

FINDINGS OF FACT

Complainants who were interviewed

  1. It is not in dispute and I find that all of the complainants were
    interviewed by the MPS officials.


  2. All of the complainants except for two had filed protection visa
    applications prior to being interviewed. I have not been provided with details
    of the complainants’ protection visa applications. By their very nature,
    however, I am prepared to find that those applications claimed that each of the
    complainants had a well-founded fear of being persecuted in the PRC for reasons
    either of their race, religion, nationality, membership of a particular social
    group or political
    opinion.

Preparation prior to
interviews

  1. Based on the material provided by DIMIA I make the following findings about
    DIMIA’s briefing of the MPS officials for the conduct of the
    interviews.


  2. I find that the only discussion that took place between DIMIA officials and
    the MPS officials who conducted the interviews about the manner in which the
    interviews were to be conducted and the types of questions that were to be asked
    was the informal briefing that took place shortly before the interviews. I also
    find that apart from this informal briefing the MPS officials were not given any
    written guidelines or protocols on the interview process.


  3. On the basis of the evidence from DIMIA about this informal briefing I find
    that DIMIA did direct the MPS officials only to ask questions necessary to
    ascertain identity and not to ask questions about the immigration status of the
    detainees. I further find that apart from these directions the MPS officials
    were given no other guidance about the parameters of the
    questioning.

What the complainants
were told about the purpose of the interviews and the identity of the officials
who interviewed them

  1. I find that the complainants were not provided with an adequate explanation
    about the purpose of the interview or the identity of the officials who
    interviewed them. I also find that there was considerable confusion amongst the
    complainants about the purpose of the interviews and the identity of the
    interviewers.


  2. Based on the transcripts of the interviews that I have, I find that the
    impression that was conveyed to the complainants was that the interview was an
    opportunity for the detainee to share any concerns that they had about their
    situation with the interviewers and that the interviewers where there to assist
    the detainees. I also find that none of the detainees were clearly told that
    the purpose of the interview was to assist the Australian Government confirm
    their identity to enable travel documents to be issued for them.


  3. I do not have transcripts of all of the interviews nor evidence about what
    some of the complainants were told during the interviews. Nonetheless, based on
    the consistency of what the detainees were told about the purpose of the
    interviews in the transcripts available and given the obvious confusion amongst
    the complainants about the purpose of the interviews that is apparent from their
    evidence I find that all the complainants were misled about the purpose of the
    interviews.

Who conducted the
interviews and the manner in which they were conducted?

  1. Based on DIMIA’s material and in particular on the contents of the
    invitation issued by DIMIA to the MPS in relation to the interviews I make the
    following findings.


  2. The interviews were conducted by 3 identity verification experts from the
    Chinese Ministry of Public Security and the locally engaged Departmental staff
    member. The 3 identity verification experts were not employees of DIMIA but they
    were engaged by DIMIA to conduct the interviews.


  3. A DIMIA staff member was only present during the first interview. Apart from
    that first interview a DIMIA staff member was not present in the interview room
    during any of the other interviews but was sitting in the doorway to the room
    from which they could visibly observe what took place. None of the DIMIA staff
    who observed the interviews could speak Mandarin and the interviews were
    conducted entirely in Mandarin.


  4. I accept that the reason the DIMIA staff member sat outside the room was
    because the interview room was too small to comfortably accommodate them in
    addition to the other people that had to be present during the interview.

Tape recording of interviews

  1. I note DIMIA’s concessions made in its initial letter to the
    Commission that its standard practice for interviewing detainees was not
    followed, the consent of the individuals for tape recording was not obtained and
    dual tape recordings were not made. I also note the concession that detainees
    were not provided with a copy of the recording but that after DIMIA received the
    complaints made to the Commission, arrangements were made to provide detainees
    with a copy of the recording of their interviews.


  2. Based on the fact that several of the tape recordings were inaudible in
    whole or in part I also find that the taping facilities used to record the
    interviews were inadequate.


  3. Based on the fact that several of the audio recordings could not be located
    I find that there were inadequate steps taken to secure the audio recordings.


  4. Finally, based on the fact that transcripts of the interviews were only
    ordered after DIMIA received the complaints and that DIMIA only discovered, at
    that stage, that the audio recordings were inaudible in part or in whole I infer
    that the audio recordings were not checked by any DIMIA official at the time or
    shortly after any of the interviews.

Information disclosed during the
interviews

Disclosure of personal information related to
ascertaining identity

  1. Based on the transcripts of the interviews I find that all of the
    complainants for whom I have transcripts were asked for personal information
    about themselves. Further I find that all of the complainants for whom I have
    transcripts, except for C12, who refused to answer any questions, were asked for
    personal information about their families.


  2. In the case of the complainants in respect of whom I do not have transcripts
    nor evidence of precisely what they were asked I cannot make findings as to
    specific information they provided during the interviews nor as to specific
    questions they were asked. I can and do, however, find that they were asked
    personal questions about themselves and their families relevant to ascertaining
    their identity.

Disclosure of
personal information by C26

  1. I find that C26 disclosed during his interview that he had a number of
    children whilst in Australia and his concern that he would be fined as a result
    of this if he returned to the PRC. This information may have been relevant to
    ascertaining his identity, however, the disclosure of this information placed
    him at risk if he was returned to the PRC. The United States Department of State
    says the following in its Country Report on Human Rights Practices in the PRC for 2004 (released on 28 February 2005) (‘the US
    Country Report on the PRC’) (noting that C26 is from Guangdong) about the
    PRC’s family planning laws:

    Under the country's family
    planning law and policies, citizens in 6 of the country's 31 provinces still
    were required to apply for government permission before having a first child,
    and the Government continued to restrict the number of births. Penalties for
    out-of-plan births still included social compensation fees and other coercive
    measures.

    ...

    The law requires counties to use specific measures to limit the total number
    of births in each county...The law requires couples who have an unapproved child
    to pay a ‘social compensation fee’, which sometimes reached 10 times
    a person's annual income, and grants preferential treatment to couples who abide
    by the birth limits...

    The law delegates to the provinces the responsibility for drafting
    implementing regulations, including establishing a scale for assessment of
    social compensation fees. The National Population and Family Planning Law
    requires family planning officials to obtain court approval for taking
    ‘forcible’ action, such as confiscation of property, against
    families that refuse to pay social compensation fees.

    The one-child limit was more strictly applied in the cities, where only
    couples meeting certain conditions (e.g., both parents are only children) were
    permitted to have a second child. In most rural areas (including towns of under
    200,000 persons), where approximately two-thirds of citizens lived, the policy
    was more relaxed, generally allowing couples to have a second child if the first
    was a girl or disabled...In remote areas, limits often were not enforced, except
    on government employees and Party members.

    ...

    ...The fees were assessed at widely varying levels and were generally
    extremely high. According to provincial regulations, the fees ranged from
    one-half to 10 times the average worker's annual disposable income. Local
    officials have authority to adjust the fees downward and did so in many cases.
    Additional disciplinary measures against those who violated the child limit
    policy by having an unapproved child or helping another to do so included job
    loss or demotion, loss of promotion opportunity, expulsion from the Party
    (membership in which was an unofficial requirement for certain jobs), and other
    administrative punishments, including, in some cases, the destruction of
    property...

    ...An additional 10 provinces--Fujian, Guizhou, Guangdong, Gansu,
    Jiangxi, Qinghai, Sichuan Shanxi, Shannxi, and Yunnan--require unspecified
    ‘remedial measures’ to deal with out-of-plan pregnancies...
    (emphasis added)

The information contained in the US Country Report on the PRC is not
sufficient for me to make a finding as to what would have occurred to C26 had he
been returned to the PRC. It is, however, sufficient for me to find that there
was a real risk that had C26 been retuned to the PRC with his family he may have
had an onerous fee imposed on him or been subject to other disciplinary measures
as a result of the disclosure of the information about the birth of the
additional children in Australia.

Disclosure of information unrelated to
ascertaining identity

  1. I find that the following complainants were asked for or volunteered the
    following types of information during their interviews and that this information
    was unnecessary to assist in their identification:

    • (i) what they intended to do in the future in relation to remaining in
      Australia or not – C5, C19, C13, C21 and C15;


    • (ii) their visa applications they had made since arriving in Australia
      – C5, C26 and C24;


    • (iii) whether they had applied for a protection visa – C26, C15 and
      C10;


    • (iv) the nature of their protection visa applications - C21, C9, C16, C7 and
      C2;


    • (v) court proceedings commenced by the detainees in Australia - C26, C4 and
      C16;


    • (vi) their religious beliefs and membership of certain religious groups
      being an underground Catholic Church and Falun Gong – C23, C21, C4, C19
      and C2; and


    • (vii) criminal convictions in Australia - C2.


  2. Support for Ms Byers’ submission of the
    risk of persecution faced by the complainants as a result of the disclosure of
    information about their protection visa applications is contained in the US
    Country Report on the PRC where the State Department express the following view
    about the PRC Government:

    The Government severely restricted freedom
    of assembly and association and infringed on individuals' rights to privacy. The
    authorities harassed and abused many who raised public grievances, including
    petitioners to the Central Government...

    While the number of religious believers in the country continued to grow, the
    Government's record on respect for religious freedom remained poor, and
    repression of members of unregistered religious groups increased in some parts
    of the country. Members of unregistered Protestant and Catholic congregations,
    Muslim Uighurs, and Tibetan Buddhists, including those residing within the TAR
    (see Tibet Addendum) experienced ongoing and, in some cases, increased official
    interference, harassment, and repression. ...The Government detained and
    prosecuted a number of underground religious figures in both the Protestant and
    Catholic Church...

    ...Religious worship in many officially registered churches, temples, and
    mosques occurred without interference, but unregistered churches in some areas
    were destroyed, religious services were broken up, and church leaders and
    adherents were harassed, detained, or beaten. At year's end, scores of religious
    adherents remained in prison because of their religious activities.... ...The
    Government continued its crackdown against the Falun Gong spiritual movement,
    and tens of thousands of practitioners remained incarcerated in prisons,
    extrajudicial reeducation-through-labor camps, and psychiatric facilities.
    Several hundred Falun Gong adherents reportedly have died in detention due to
    torture, abuse, and neglect since the crackdown on Falun Gong began in 1999.

Allegations of what took place to family
members of detainees after interviews

  1. I accept the complainants’ evidence that some of them were told that
    their families in the PRC ‘had been disturbed and interrogated by Chinese
    local police’ following their interviews and that they were all fearful
    and concerned about their families in the PRC as a result of this. The evidence
    is, however, hearsay and I do not consider that it is sufficient evidence upon
    which to base a finding that their family members were in fact disturbed or
    interrogated by Chinese local police. I therefore make no finding as to whether
    their family members were in fact disturbed or interrogated by Chinese local
    police as a result of the information disclosed by complainants during the
    interviews.

Impact of interviews on
the complainants

  1. I accept the complainants’ evidence that as a result of the interviews
    and in particular as a result of their confusion about the purpose of the
    interviews and the identity of the interviewers they were frightened and
    concerned not only for themselves but also for their families still in the PRC.
    In particular they feared that they would be persecuted if they were returned to
    the PRC as a result of the interviews. Given the information that several of
    them disclosed during the interviews (referred to above) and given the
    PRC’s record in relation to human rights abuses (referred to above) it was
    understandable that they were frightened and distressed.


  2. I am satisfied that the distress and fear of the complainants would have
    been considerable initially and whilst it would have diminished over time it
    would not have been of a transitory
    nature.

CONCLUSIONS REGARDING ALLEGED
BREACHES OF HUMAN RIGHTS

Acts/practices in respect of which the
Commission has jurisdiction to investigate

  1. I find that the following acts (including failures to
    act)[43] fall within the scope of
    the Commission’s functions with respect to human rights:

    • (i) the acts of DIMIA staff in organising the interviews;


    • (ii) the acts of GSL staff; and


    • (iii) the acts of the MPS officials.


  2. Both GSL staff and the MPS officials who conducted the interviews were
    engaged by the Commonwealth to perform the acts that are the subject of this
    complaint. Further the acts that are the subject of this complaint are
    discretionary acts, in that the manner in which the interviews were conducted
    was not mandated by any legislation. Accordingly, the acts of both the MPS
    officials and the GSL staff that are the subject of this complaint are acts done
    on behalf of the Commonwealth and are acts in respect of which the Commission
    has jurisdiction to inquire.


  3. For the reasons set out in Part D above, I find that unauthorised acts done
    in the course of an event done on behalf of the Commonwealth are also acts
    included in the scope of s 11(1)(f). Therefore, to the extent that the MPS
    officials acted outside the terms of their engagement by DIMIA their acts were
    still ‘on behalf of the Commonwealth’ for the purposes of this
    inquiry.

Acts in respect of the
manner in which the interviews were conducted that constituted breaches of human
rights

  1. For the reasons below I think that the actions of DIMIA and of the MPS
    officials in relation to organising and conducting the interviews breached
    art 17(1) of the ICCPR and art 10(1) of the
    ICCPR.

ARTICLE 17(1) – RIGHT TO
PRIVACY

  1. DIMIA breached the following complainants’ right to privacy under art
    17(1) of the ICCPR:

    • (i) C2;


    • (ii) C5;


    • (iii) C4;


    • (iv) C7;


    • (v) C9,


    • (vi) C10


    • (vii) C13


    • (viii) C15


    • (ix) C16


    • (x) C19;


    • (xi) C21;


    • (xii) C23;


    • (xiii) C24; and


    • (xiv) C26.


  2. The privacy of the above complainants was
    arbitrarily interfered with because they were asked questions and/or disclosed
    the following information about themselves during the interviews that was
    unnecessary for determining their identity:

    • (i) their future intentions in relation to trying to remain in Australia or
      not;


    • (ii) the visa applications they had made since arriving in Australia;


    • (iii) whether they had applied for a protection visa;


    • (iv) the nature of their protection visa applications;


    • (v) court proceedings commenced by the detainees in Australia; and


    • (vi) their religious beliefs.

Below I identify
the acts that constituted the interferences and explain why I consider the
interferences to have been arbitrary.

Interference with their privacy

  1. The privacy of the above complainants was
    interfered with by virtue of the following acts that caused or contributed to
    the disclosure of the personal information outlined in paragraph 242:

    • (i) the questioning by the MPS officials in relation to the personal
      information;


    • (ii) DIMIA’s failure to take adequate steps to ensure that the privacy
      of the detainees was not breached during the interviews – I set out below
      my findings of DIMIA’s failure; and


    • (iii) the misrepresentations by the MPS officials about the purpose of the
      interviews.

Questioning by
MPS officials

  1. The transcripts of the interviews with these complainants disclose that the
    MPS officials questioned the complainants about personal matters not relevant to
    determining their identity. Whilst in some cases the complainants had disclosed
    the personal information in response to seemingly unrelated questions, the MPS
    officials still continued to ask questions about this information following the
    initial disclosure.

DIMIA’s
failure to take adequate steps to prevent the complainants’ privacy from
being breached

  1. As I said in Part D of my report in relation to art 17(1), this article can
    be breached by a State’s failure to prevent or at least take adequate
    steps to try and prevent a detainee’s privacy from being breached in
    circumstances where the State party is aware or should be aware that there is a
    risk of such a breach.


  2. For the reasons I set out below I find that:
    • (i) DIMIA was aware of the risk that the interviews may result in the
      disclosure of personal information about the complainants that was not required
      to identify the complainants including information about the complainants’
      protection visa applications; and


    • (ii) it failed to take adequate steps to try and prevent the
      complainants’ privacy from being breached during the
      interviews.


  3. I infer from the fact that DIMIA took the
    following, albeit inadequate steps, to protect the privacy of the complainants
    that DIMIA recognised that there was a risk that the complainants’ privacy
    would be breached during the interviews by the disclosure of unrelated
    information including information about protection visa applications:

    • (i) DIMIA arranged for one of its officers to be present during the
      interviews; and


    • (ii) informed the MPS officials that they should restrict questioning to
      matters used for identity verification and that they were not to ask detainees
      about their immigration history.


  4. The measures taken by DIMIA were, for the
    following reasons, inadequate to prevent or significantly reduce the risk of the
    complainants’ privacy being infringed.

    • (i) There were no measures in place to ensure that an interview could be
      stopped if inappropriate questioning commenced. Whilst there were DIMIA
      officers present they sat outside the room and they could not understand the
      language in which the interviews were conducted. As such they had no way of
      knowing what was being said and therefore would have had no basis for stopping
      an interview.


    • (ii) DIMIA gave the MPS officials little guidance as to the parameters of
      the questioning that could occur. No formal briefing of the MPS officials took
      place, nor were there any written guidelines or interview protocols as to the
      procedures to be used in the identification process.


    • (iii) Further:
      1. inadequate steps were taken to ensure that the interviews were properly
        recorded - tapes were lost, several tapes were completely or partially
        inaudible; and


      2. the recordings that were made were not reviewed whilst the interviews were
        occurring.

      Had DIMIA ensured that the interviews
      were being properly recorded and had they reviewed the tapes shortly after the
      interviews and prior to all of the interviews being complete DIMIA could at
      least have taken steps to prevent further interviews from occurring or from
      further inappropriate questioning taking place.


    • (iv) DIMIA did not inform the complainants about the purpose of the
      interviews and the identity of the people conducting the interview. Had the
      complainants been properly informed about these matters they would have been in
      a position to make an informed decision as to what type of information to
      provide. In the absence of such an explanation the risk of the complainants
      disclosing unnecessary personal information was significantly increased.

Misrepresentations by the MPS
officials about the purpose of the interviews

  1. I have found that all of the complainants were misled into thinking that the
    purpose of the interviews was to allow them to ventilate any concerns and the
    interviewers were there to assist the complainants. The misrepresentations by
    the MPS officials about the purpose of the interviews also constituted an
    interference with the complainants’ privacy because in the absence of
    these misrepresentations I find that the complainants were unlikely to have
    volunteered unrelated personal information about themselves, particularly the
    information about their protection visa applications and their religious
    beliefs.

Arbitrary
interference

  1. Article 17(1) of the ICCPR prohibits ‘arbitrary’ interferences
    with a person’s privacy. As I have explained above in Part D, an
    interference with privacy will be ‘arbitrary’ if it is not
    reasonable or necessary in the particular circumstances.


  2. The sole purpose of the interviews was to obtain information that would
    assist DIMIA in identifying these individuals. Given this purpose, questioning
    of the detainees on unrelated issues was unnecessary and therefore constituted
    an arbitrary interference with their privacy.

Findings in
relation to the other complainants

  1. I have only made a finding of breach of privacy in the case of the
    complainants in respect of whom I have transcripts that evidence that they
    disclosed personal information about themselves during the interviews that was
    unrelated to ascertaining their identity.

Findings in relation to complainants
for whom I have transcripts of their interviews which do not disclose a breach
of their privacy under art 17(1)

  1. Of the complainants for whom I have transcripts of their interviews only two
    of them were not asked questions that arbitrarily breached their privacy –
    C1 and C12. As the transcripts of the interviews with C1 and C12 do not disclose
    that they were asked questions unrelated to ascertaining their identity I cannot
    conclude that their privacy was arbitrarily interfered with. In the case of C12
    this appears to be because he refused to cooperate with the interviewers or
    participate in the interview.

Finding in relation to C25

  1. In the case of C25 she said she was asked the following:

a) When
did I come to Australia?

b) How did I come to Australia?

c) Do I have a Chinese passport?

d) How long I stayed in detention?

e) What job I used to do outside for living?

f) Why did not I give my Chinese ID to DIMIA?

g) How much money I earned in Australia?

h) How much money I paid to travel in Australia?

i) Could I give him the contact details of that person who helped me to get a
false Thai passport and visa?

The above is the only evidence I have
as to the questions she was asked during her interview as I do not have a
transcript of her interview. I accept that she was asked these questions.
However, I think that all of the above questions may in some way assist in
identifying C25. Though some questions may appear to of limited relevance I am
not satisfied that as part of a process of questioning, they were of no
relevance. I therefore do not find that the manner in which her interview was
conducted infringed her right to privacy under art 17(1).

Findings in relation to the balance of the
complainants

  1. In relation to C6, C18 and C20 I have transcripts of their interviews but
    the transcripts record very little of the interview. In the case of C6 the
    transcript is two lines and in the case of the other two complainants the
    transcripts are only a page long. Accordingly, the transcripts for these
    complainants contain very little evidence about what was discussed during their
    interviews.


  2. In relation to the balance of the complainants the only evidence that I have
    about the questions they were asked and the information that they disclosed
    during their interviews is the following passage from C3’s
    statement:

    They [the MPS officials] asked us whether we had made
    applications for protection visas and also how much money we had made in
    Australia, whether we had bought houses in China or sent money back to China and
    a lot of questions and some detainees refused to answer their questions. They
    knew my family members details but they asked us to tell them and again.


  3. C3 gives only general evidence about the types of questions the complainants
    were asked. He asserts that all of the complainants were asked whether they made
    applications for protection visas. This assertion is not supported by the
    transcripts of the interviews that the Commission does have. On the basis of the
    transcripts of the interviews that the Commission does have I find that whilst
    some of the complainants were asked about protection visa applications, not all
    of them were, and that in many of the cases where protection visas were
    discussed, it was not as a result of the MPS officials having directly raised
    this topic.


  4. In relation to the complainants in respect of whom I do not have transcripts
    or only partial transcripts of their interviews I do not consider that I have
    sufficient evidence upon which to make any findings about the specific types of
    questions they were asked or the information they gave. Whilst I can conclude,
    given the nature of the interviews and on the basis of the transcripts that I
    have, that they would have been asked for personal information about themselves
    and their families I cannot conclude that they were asked or disclosed personal
    information about themselves or their families unnecessary to ascertaining their
    identity. It may in fact be the case that the privacy of these other
    complainants was arbitrarily infringed but I unfortunately have insufficient
    evidence upon which to reach such a conclusion.

ARTICLE 10(1) – HUMANITY AND
DIGNITY

  1. The obligation arising under art 10(1) of the ICCPR applies in respect of
    all of the complainants because as they were all in immigration detention they
    were all ‘deprived of their liberty’ for the purposes of art 10(1).
    The only question that arises is whether the manner in which the interviews of
    the complainants were organised and conducted constitutes a failure to treat
    them with humanity and respect for their dignity.

Findings in
relation to the complainants who had made protection visa applications prior to
the interview

  1. I find that DIMIA’s failure to take adequate steps to prevent or at
    least minimise the risk of these complainants disclosing or being asked
    questions about their protection visa applications amounted to a failure to
    treat them with humanity and respect for their inherent dignity as human beings
    because:

    • (i) DIMIA placed them in a situation where this risk arose;


    • (ii) DIMIA knew about the risk; and


    • (iii) DIMIA should have been aware that if the risk eventuated it may cause
      them the following harm:

      1. it may place them at risk of persecution if they were returned to the PRC
        (the risk of persecution has been documented in the US Country Report on the PRC
        and the UNHCR Advisory Opinion); and


      2. cause them to be anxious and distressed as a result of a fear of such
        persecution.


  2. Knowing the risks faced by these complainants and failing to take adequate
    steps to minimise those risks shows a disregard for their rights and interests
    that amounts to a failure to treat them with humanity and dignity.


  3. I also find, in the circumstances of this case, that DIMIA’s failure
    to inform them about the documents it had given to the MPS officials and its
    failure to provide them with an adequate explanation of the purpose of the
    interviews and the identity of the interviewers amounted to a failure to treat
    them with humanity and dignity.


  4. The absence of an explanation about the documents that were given to the MPS
    officials contributed to these complainants forming the mistaken view that these
    officials had been given information about their protection visa applications
    which caused them to be frightened and distressed. The fear and distress was
    compounded by the absence of an adequate explanation of the purpose of the
    interview and the identity of the interviewers. The failure to provide such an
    explanation amounted to a failure to treat them humanely because:

    • (i) DIMIA should have recognised the risk that, in the absence of an
      adequate explanation about the purpose of the interviews, the role of the MPS
      officials and the process that had been arranged, the complainants would become
      unnecessarily anxious and fearful as a result of the interviews;


    • (ii) the interviews did cause them to become frightened and distressed;
      and


    • (iii) the absence of an explanation increased the risk of them disclosing
      information about their protection visa applications.


  5. DIMIA should have recognised the risk of these complainants becoming
    frightened and distressed about the interviews in the absence of an explanation
    because:

    • (i) these complainants were applicants for protection visas who were
      alleging that they had reasonable grounds to fear persecution in the PRC;


    • (ii) the interviews were conducted by PRC officials; and


    • (iii) they were going to be questioned about the circumstances surrounding
      their arrival in Australia and other personal information about themselves and
      their families.


  6. The failure on the part of DIMIA to inform these complainants of the
    information provided to the PRC officials and the failure to adequately explain
    the interview process to them further demonstrates a disregard for the rights
    and interests of the complainants that amounts to a failure to treat them with
    humanity and dignity.

Findings in relation to C18 and C20

  1. In the case of C18 and C20 I do not find that the manner in which their
    interviews were conducted breached their rights under art 10(1)
    because:

    • (i) as they had not applied for protection visas I do not have any evidence
      upon which to conclude that DIMIA should have been aware that the disclosure of
      information by these applicants during their interviews would have had adverse
      consequences for them; and


    • (ii) I have insufficient evidence to conclude that their privacy was
      breached or that they disclosed any information to the MPS officials that would
      have had adverse consequences for them.

Accordingly,
whilst the manner in which these complainants were interviewed was still
unsatisfactory, for the above reasons, I do not think that it was so
unsatisfactory as to amount to a breach of their rights under art 10(1).

PART G: SEPARATION
DETENTION

EVIDENCE

Length of detention and who was
detained

  1. DIMIA admit that following the interviews the
    following male complainants were taken to a different part of the detention
    centre known as the Manning Building where they were held for the following
    periods of time:

    • (i) C1 – detained from 16 May 2005 to 31 May 2005
      (interviewed on 13 May 2005);


    • (ii) C3 – detained from 17 May 2005 to 31 May 2005
      (interviewed on 17 May 2005);


    • (iii) C4 – detained from 30 May 2005 to
      31 May 2005 (interviewed on 30 May 2005);


    • (iv) C8 – detained from 17 May 2005 to 30 May 2005
      (interviewed on 17 May 2005);


    • (v) C9 – detained from 16 May 2005 to 31 May 2005
      (interviewed on 16 May 2005);


    • (vi) C10 – detained from 16 May 2005 to 31 May 2005 (interviewed on
      13 May 2005);


    • (vii) C11 – detained from 16 May 2005 to
      31 May 2005 (interviewed on 12 May 2005);


    • (viii) C13 – detained from 16 May 2005 to 31 May 2005
      (interviewed on 13 May 2005);


    • (ix) C14 – detained from 19 May 2005 to 31 May 2005 (interviewed
      on 18 May 2005);


    • (x) C15 – detained from 31 May 2005 to 31 May 2005
      (interviewed on 31 May 2005);


    • (xi) C17 – detained from 19 May 2005 to 31 May 2005
      (interviewed on 18 May 2005);


    • (xii) C18 – detained from 30 May 2005 to 31 May 2005 (interviewed on
      30 May 2005);


    • (xiii) C20 – detained from 17 May 2005 to 31 May 2005 (interviewed on
      17 May 2005);


    • (xiv) C22 – detained from 16 May 2005 to 31 May 2005 (interviewed on
      16 May 2005);


    • (xv) C23 – detained from 18 May 2005 to
      31 May 2005 (interviewed on 17 May 2005);


    • (xvi) C21 – detained from 16 May 2005 to 31 May 2005 (interviewed
      on 13 May 2005);


    • (xvii) C24 – detained from 30 May 2005 to 31 May 2005 (interviewed on
      30 May 2005);


    • (xviii) C26 – detained from 16 May 2005 to 31 May 2005 (interviewed on
      12 May 2005).

Reason
for detention

  1. DIMIA’s response states as follows as to the reason for the separation
    detention:

    The delegation requested that those clients who had been
    interviewed be kept away from the general population while the interviews were
    ongoing. This was requested so that those clients who had been interviewed could
    not relay the questions asked by the delegation to others. The delegation was
    briefed on Australia’s laws and our obligations to detainees and that
    arrangement for separation was not a standard operating procedure.

    However the delegation insisted on separation and a concern arose that the
    interview visit may be aborted. Agreement was reached that the protocols adopted
    for separation during entry screening of unauthorised arrivals would be
    used.

What were the detainees told about the
separation detention

DIMIA’s evidence

  1. In a letter from DIMIA to the Commission dated
    19 March 2008 it states:

    the department also concedes that the
    clients were not provided with an adequate explanation of the purpose of the
    detention, the anticipated duration of the detention or the reasons for the
    conditions of such detention.

Evidence from the transcripts

  1. Only the transcript of the interview with C9
    records any discussion about the separation detention. None of the other
    transcripts record any conversation taking place about the separation detention
    (apart from the detainees relaying what they had heard about it from other
    detainees). C9 was told as follows (at p. 20 of his transcript of
    interview)

    Female 2: (inaudible) people who have already been
    interviewed are being moved to the main building in stage two for a short term
    stay (English voice).

    Female 2: That is to say, just let you know, those who have been interviewed,
    later one will be taken to stage two, to stay there for a short while.

    Female 2: There will be someone taking them there now. They will be there for
    just a short term stay, a few weeks. But they won’t be allowed any phone
    calls or visitors (English voice)

    Female 1: That is to say someone is going to take you there in a minute, to
    stage two. You are going to stay there for a few weeks, only a few weeks. There,
    you will be taken there. During that period you are not allowed to make phone
    calls, just this few weeks. The rest is the same.

    (background voice inaudible)

    Female 2: (inaudible)

    Female 1: That is to say someone is here to take you there. He is going to
    take you there. You are going to stay there for a few weeks

    (background voice inaudible)

Conditions in separation detention

Complainants’ evidence

  1. The complainants’ allege as follows about the conditions in which they
    were kept:

    (i) the Manning Building was surrounded by a fence and
    was constantly staffed by security guards;

    (ii) the detainees were ‘placed in separate rooms. We were isolated in
    these rooms for 24 hours per day’ (C3’s statement – [6]).
    Although in C14’s statement he says (at [10]) ‘we were located in
    one building, surrounded by fence and security for 24 hours for 16
    days’;

    (iii) they were not permitted to make or receive any phone calls or
    faxes;

    (iv) they were denied visitors;

    (v) in C3’s statement he says ‘we were denied all communications
    including talking to other detainees, or a doctor or a nurse or lawyers’.
    In C14’s affidavit he says they were denied communications and that
    included talking to other detainees from in the fence. He further states
    ‘[i]n some cases, most all, were told by GSL officials not to talk to a
    doctor or nurse’ ([14]); and

    (vi) meals were taken to the detainees rooms – they were given cold
    food.

DIMIA’s evidence

  1. DIMIA advised that as it did not have any written procedures for the
    detention that took place DIMIA requested that GSL generally follow the
    Operation Procedure OP 5.1 – Separation Detention; and OP 10.5 -
    Access to Outside Representatives and Interested Bodies. DIMIA’s response
    does not advise who within DIMIA made this request or precisely what GSL was
    told nor has DIMIA provided any evidence of what the GSL employees who were
    working in Manning at the time of the separation detention were told about the
    conditions of the separation detention.


  2. In relation to the two operational procedures that DIMIA states GSL were
    asked to follow I note the following:

    • (i) the purpose of the separation detention procedure is to ‘maintain
      the integrity of Australia’s protection visa determination process’
      ([1.1] OP 5.1);


    • (ii) Clause 4.3.2 of the performance standard (set out in cl. 3 of OP 5.1)
      provides:

      In order to protect the integrity of
      Australia’s visa assessment process, detainees in separation detention do
      not, except with the Department’s approval:

      • Have contact with detainees in open detention;


      • Receive personal visits or have community contacts;


      • Have access to telephone/faxes for incoming or outgoing calls/messages;
        or


      • Have access to incoming mail.

      However, visits and communications
      between detainees in Separation detention and the Commonwealth Ombudsman or
      Human Rights and Equal Opportunity Commission are permitted in accordance with
      the standards applying to other detainees.


    • (iii) Clause 4.1.3 of OP 5.1 provides:

      Upon arrival in
      Separation Detention, staff will read from the DIMIA script to explain the
      reasons for separation detention in a language and terminology detainees can
      understand. It may be preferable to use an interpreter for this purpose,
      whether on-site or the Telephone Interpreter Service...Detainees will be given
      every opportunity to ask questions about their circumstances.


    • (iv) Clauses 4.2.1 and 4.2.2 of OP 5.1 provide:

      4.2.1 Whilst
      accommodated within Separation Detention, except with the written approval of
      the DIMIA Centre Manager, detainees will not be permitted to:

      • Have access to detainees in open detention or members of the public


      • Make or receive telephone calls


      • Have access to faxes for incoming or outgoing messages


      • Correspond with people in the Australian community


      • Have access to incoming mail*


      • Have access to a computer with a modem


      • Have access to television, radio, newspapers or
        magazines

      *Correspondence received for detainees located within the
      separation detention unit will be forwarded to the DIMIA Centre Manager, who
      will then decide if the mail is to be forwarded to the detainee in question.

      4.2.2 However, detainees will be permitted to:

      ...

      • Associate freely with other detainees in Separate Detention...


      • Access the full range of detention facilities and services
        including...


    • (v) Neither OP 5.1 nor OP 10.5 provide that a detainee has a right to visits
      from legal representatives.
  3. DIMIA advises in its response that detainees did receive visitors even
    though OP 5.1 would seem to prohibit this so it appears that OPs 5.1 and 10.5
    were not entirely adhered to.


  4. DIMIA’s response to the specific allegations were as follows:
    • (i) the Manning Building is a normal accommodation block within Villawood
      Detention Centre;


    • (ii) restrictions on meeting other clients were not in place at the time of
      the separation detention;


    • (iii) GSL has advised DIMIA that those clients who requested visits while in
      separation detention received visits – they have provided a table listing
      visitor dates and the name of the complainants who received visits, they have
      also provided visitor records for C8 which show that he received one visit from
      his wife whilst he was in separation detention;


    • (iv) GSL has advised DIMIA that whilst the complainants were kept in
      separation detention they were not denied access to medical staff or legal
      representatives. Further DIMIA in their response say that the International
      Health and Medical Services (IHMS) ‘has notified the department that none
      of the detainees accessed medical services in the two weeks after they were
      interviewed’;


    • (v) meals were delivered to the Manning Building and rooms were set up to
      enable detainees to consume meals and access coffee, tea, juice and prepare food
      between meal times. DIMIA’s response does not indicate whether the food
      was hot or cold; and


    • (vi) additional televisions sets and other equipment were given to the
      detainees.


  5. DIMIA did not respond to the allegation that the complainants were not
    permitted to make or receive any phone calls or faxes.

Impact of separation detention on
the complainants

  1. C14 and C3 both state that the detainees felt threatened and frightened and
    they could not eat or sleep because they did not know what would happen to
    them.

SUBMISSIONS

  1. Ms Byers submitted that the separation detention constituted a breach
    of art 10(1) of the ICCPR. She submitted it breached art 10(1) because it
    demonstrated a disregard for the dignity and the physical and mental integrity
    of the complainants.


  2. DIMIA has not provided any direct submissions on this
    issue.

FINDINGS OF FACT

Length of detention and who was
detained

  1. I accept DIMIA’s evidence that following the interviews the
    complainants listed in paragraph 267 were held in separation detention for the periods identified in that
    paragraph.


  2. Further, based on the information provided by DIMIA, I find that not all of
    the complainants were separately detained. For example C6 and C25 who were
    interviewed on 18 May 2005 were never separately detained. Further:

    • (i) all of the complainants who were interviewed on 12 and 13 May 2005
      were not separately detained until 3 or 4 days after their interviews;


    • (ii) those interviewed on 18 May 2005 were not separately detained
      until the day after their interviews; and


    • (iii) C23 was not detained until the day after his
      interview.

Reason for
separation detention

  1. Based on DIMIA’s response I find that DIMIA’s reason for
    separately detaining these complainants was because the MPS officials had
    requested them to do so and DIMIA was concerned that if it refused the MPS
    officials would not proceed with the interviews. I accept DIMIA’s evidence
    that the reason the MPS officials gave for requesting the separation detention
    was their concern that those detainees that had been interviewed would relay the
    questions asked by the delegation to the others. I infer from this that the MPS
    officials were of the view that if the detainees knew the questions in advance
    then it may frustrate their ability to obtain the necessary information to
    identify the detainees.


  2. I find that the separation detention of the complainants was not reasonably
    necessary to secure the integrity of the interview process given the following:

    • (i) DIMIA has not claimed that it thought that separation detention was
      reasonably necessary to achieve this;


    • (ii) it is not standard operating procedure to separately detain detainees
      in such situations;


    • (iii) DIMIA originally resisted the request for separation detention and had
      ‘briefed [the MPS officials] on Australia’s laws and our obligations
      to detainees and that arrangement for separation was not a standard operating
      procedure’;


    • (iv) DIMIA permitted the complainants who were in separation detention who
      requested visitors to have visitors; and


    • (v) DIMIA did not separately detain all of the complainants – some of
      the complainants interviewed on 18 May 2005 were never separately detained and
      several of the complainants were not separately detained until the day after or
      a few days after their interviews. If DIMIA had real concerns about the
      separation detention being necessary then presumably the separation detention
      would have occurred immediately following the interview with each of the
      complainants.


  3. I also find, for the following reasons, that it was not reasonably necessary
    for DIMIA to have separately detained the complainants simply to ensure that the
    MPS officials would proceed with the interviews:

    • (i) if the interviews had not proceeded there were other ways in which DIMIA
      could have identified the complainants – for example DIMIA officials could
      have conducted the interviews and could have been briefed by the MPS officials
      as to appropriate questions to ask; and


    • (ii) the MPS officials conducted interviews on 12 and 13 May 2005, even
      though none of the complainants were separately detained until
      16 May 2005. If the MPS officials had been intent on not proceeding
      with the interviews if the separation detention did not take place they would
      not have conducted any interviews until such time as DIMIA agreed to the
      separation detention.

What the complainants were told
about the separation detention

  1. Given DIMIA’s admission referred to at [269] above and given the evidence of the
    complainants on this issue I find that DIMIA failed to give the complainants an
    adequate explanation about the reason for the separation detention, the duration
    of the separation detention and the conditions in separation detention.


  2. Based on the evidence of the complainants and the evidence of DIMIA as to
    what the complainants were permitted to do whilst in separation detention I also
    find that there was considerable confusion amongst the detainees as to what they
    were and were not permitted to do whilst in separation detention. I find that
    this confusion was caused by the failure to provide them with an adequate
    explanation of the conditions and because they were told inconsistent things
    about what they could and could not do whilst in separation
    detention.

Conditions in separation detention

  1. DIMIA admits and I find that the complainants held in separation detention
    were moved away from their usual accommodation area to a separate part of the
    detention centre.


  2. I accept DIMIA’s evidence that the following were the conditions in
    separation detention:

    • (i) the Manning Building is a normal accommodation block within Villawood
      Detention Centre;


    • (ii) restrictions on meeting other clients were not in place at the time of
      the separation detention;


    • (iii) whilst the complainants were kept in separation detention they were
      not denied access to medical staff or legal representatives and none of them
      accessed medical services whilst in separation detention;


    • (iv) meals were delivered to the Manning Building and rooms were set up to
      enable detainees to consume meals and access coffee, tea, juice and prepare food
      between meal times;


    • (v) additional television sets and other equipment were given to the
      detainees.


  3. Based on the visitor records from the detention centre provided by DIMIA I
    find that the complainants were not prevented from having visitors whilst in
    separation detention. I do find, however, based on the complainants’
    evidence and based on the excerpt from the transcript of the interview with C9
    set out above at [270] that at least
    some of the complainants placed in separation detention were told either by GSL
    staff or DIMIA officers that they were not able to have visitors whilst in
    separation detention.


  4. I do, however, find that the complainants were prohibited from making or
    receiving telephone calls and facsimiles and making or receiving other forms of
    correspondence without the prior consent of the DIMIA Centre Manager. Operation
    Procedures OP 5.1 (Separation Detention and Operational Procedure) and 10.5
    (Access to Outside Representatives and Interested Bodies) require such
    restrictions to be imposed on detainees held in separation detention. Further,
    DIMIA did not deny this allegation in its response.


  5. In summary I find that the complainants held in separation detention:
    • (i) were moved from their usual accommodation in the detention centre to a
      different part of the detention centre; and


    • (ii) they were prohibited from making or receiving telephone and facsimiles
      and making or receiving other forms of correspondence without the prior consent
      of the of the DIMIA Centre Manager, a restriction that did not usually apply to
      their detention;

    but

    • (iii) they were permitted visitors if they requested it;


    • (iv) they did have access to other detainees;


    • (v) they were not restricted to their rooms;


    • (vi) they had access to televisions and other equipment;


    • (vii) they were given food although some of the food may have been cold;
      and


    • (viii) they had access to a kitchen and were provided with facilities to
      make themselves food and drink.

Impact of separation detention
on the complainants

  1. I accept the complainants’ evidence that being placed in separation
    detention caused them to feel distressed and
    frightened.

CONCLUSIONS REGARDING
ALLEGED BREACHES OF HUMAN RIGHTS

  1. For the reasons discussed below I do not find that the complainants placed
    in separation detention had their rights under art 9(1) of the ICCPR breached
    but I do find that their rights under art 10(1) were
    breached.

ARTICLE 9(1) –
ARBITRARY DETENTION

  1. Relevantly, for the purposes of this complaint, art 9(1) prohibits
    ‘detention’ that is ‘arbitrary’.


  2. In Part D I concluded that art 9(1) can be breached where a person in
    immigration detention is moved from one part of the immigration detention centre
    to another part of the centre but only where the move involves a further and
    serious deprivation of their liberty. In this case the only difference between
    the conditions of the complainants’ detention after they were placed in
    separation detention is that they were in a different part of the detention
    centre and they had restrictions placed on their ability to correspond with
    persons outside the detention centre. Whilst I do not think the move or the
    restrictions were necessary, given that the complainants were still able to have
    visitors and communicate with other detainees and had access to television and
    other amenities I do not think the difference between their usual conditions in
    detention and the conditions in separation detention were so marked and
    significant that it constituted a breach of art
    9(1).

ARTICLE 10(1) – HUMANITY
AND DIGNITY

  1. As I have found earlier, all of the complainants were deprived of their
    liberty for the purposes of art 10(1) by virtue of the fact that they were in
    immigration detention. The only question therefore that arises is whether any
    aspect of the separation detention could warrant a finding that DIMIA failed to
    treat the complainants in separation detention with humanity and respect for
    their dignity.


  2. I find that DIMIA failed to treat these complainants with humanity for the
    following reasons:

    • (i) DIMIA unnecessarily moved the complainants away from their usual
      accommodation and imposed restrictions on their ability to correspond;


    • (ii) given the following circumstances DIMIA should have realised that there
      was a real risk the separation detention would cause distress and fear to the
      complainants:

      1. they were not given any adequate explanation about the reason for the
        separation detention, the conditions in separation detention or its duration;


      2. the separation detention took place after they had participated in an
        interview they did not know the purpose of with people they suspected to be
        Chinese government officials but whose identity they were not entirely certain
        of; and


      3. the complainants were told inconsistent and in some cases incorrect things
        about the conditions in separation detention; and


    • (iii) the separation detention did in fact cause the complainants to feel
      distressed and frightened.


  3. Given the above I find that DIMIA breached the rights of the complainants
    under art 10(1) of the ICCPR when it placed them in separation
    detention.

PART H: RECOMMENDATIONS

Remedy sought by the complainants

  1. The complainants seek the following remedies:
    • (i) that they be released from immigration detention under s 48B of the
      Migration Act; and


    • (ii) that they each be paid $24,000 in compensation.


  2. I do not have the power to grant the complainants the first remedy that they
    seek. This is only something that can be done by the Minister for Immigration.
    Further I note that the majority of the complainants have been or are in the
    process of being released from immigration detention.


  3. I consider the claim for compensation below.

Power to make
recommendations

  1. Where, after conducting an inquiry, the Commission finds that an act or
    practice engaged in by a respondent is inconsistent with or contrary to any
    human right, the Commission is required to serve notice on the respondent
    setting out its findings and reasons for those
    findings.[44] The Commission may
    include in the notice any recommendation for preventing a repetition of the act
    or a continuation of the
    practice.[45]


  2. The Commission may also recommend:
    • (i) the payment of compensation to, or in respect of, a person who has
      suffered loss or damage; and


    • (ii) the taking of other action to remedy or reduce the loss or damage
      suffered by a
      person.[46]

Compensation

Compensation should be paid to the
detainees

  1. I am satisfied that DIMIA breached the rights of
    all of the complainants under either or both (in some cases) arts 10(1) and
    17(1) of the ICCPR.


  2. Further, as I said earlier, I am satisfied that the above complainants
    experienced feelings of distress and fear as a result of being subjected to the
    interviews and as a result of being placed in separation detention. I am
    therefore satisfied that it is appropriate that compensation be paid to these
    complainants.

Calculation of
compensation

  1. In the Commission Report, Report of Complaint by Mr Huong Nguyen and Mr
    Austin Okoye Against the Commonwealth of Australia and GSL (Australia) Pty
    Ltd    ,[47] I concluded
    that, so far as is possible by a recommendation for compensation, the object
    should be to place the injured party in the same position as if the wrong had
    not occurred. [48]


  2. Compensation for the complainants’ distress and fear would, in tort
    law or unlawful discrimination law, be characterised as ‘non-economic
    loss’. There is no obvious monetary equivalent for such loss and courts
    therefore strive to achieve fair rather than full or perfect
    compensation.[49]


  3. In unlawful discrimination and sexual harassment cases, which involve a form
    of a breach of human rights, the courts whilst cautioning against too excessive
    an award for non-economic loss have also cautioned against awarding too low an
    amount.[50] The courts have also
    emphasised that ultimately the amount awarded depends on the facts of each case
    and is a matter of judgment for the judicial officer hearing the
    matter.[51] In Hall v
    Sheiban    ,[52] a sexual harassment
    case, Wilcox J cited with approval the following statement of May LJ in Alexander v Home
    Office    :[53]

    As with
    any other awards of damages, the objective of an award for unlawful racial
    discrimination is restitution...For the injury to feelings however, for the
    humiliation, for the insult, it is impossible to say what is restitution and the
    answer must depend on the experience and good sense of the judge and his
    assessors. Awards should not be minimal, because this would tend to trivialise
    or diminish respect for the public policy to which the Act gives effect. On the
    other hand, just because it is impossible to assess the monetary value of
    injured feelings, awards should be restrained. To award sums which are generally
    felt to be excessive does almost as much harm to the policy and the results
    which it seeks to achieve as do nominal awards. Further, injury to feelings,
    which is likely to be of a relatively short duration, is less serious than
    physical injury to the body or the mind which may persist for months, in many
    cases for life.[54]


  4. In a range of unlawful discrimination cases and sexual harassment cases the
    amounts awarded for non-economic loss for hurt, humiliation and distress where
    there is no finding that the applicant suffered from a psychological or medical
    illness as a result of the unlawful conduct has ranged from $500 to
    $20,000.[55] Whilst I am determining
    the amount of compensation based on the facts of this complaint I do that
    bearing in mind the quite varied amounts that Australian courts have awarded for
    actions involving a beach of human rights.


  5. In reaching an appropriate figure, I have taken into consideration the
    following factors:

    • (i) That the events did not merely cause the complainants considerable
      distress but also caused them to be fearful.


    • (ii) The exacerbation of that distress and fear caused by the separation
      detention.


    • (iii) The fear and distress diminished over time but would have persisted
      for a period that would not have been transitory or insignificant.


    • (iv) The fact that none of the complainants have suffered any physical
      injury as a result of the interviews or separation detention.


    • (v) There is no evidence that the complainants suffered from any
      psychological or medical condition as a result of the conduct.


    • (vi) Most of the complainants have now been granted protection visas so this
      has, in part, remedied the danger posed to the safety of the complainants who
      disclosed information about their protection visa applications during the
      interviews.


    • (vii) There is no evidence to suggest a claim for loss of earnings or
      medical treatment costs.


  6. Whilst the harm suffered by each of the complainants arising from the
    interviews and the separation detention may have varied from person to person I
    find that the differences would not be so significant as to warrant an
    individual assessment of the harm. Further, as I said above when awarding
    compensation for non-economic loss courts seek to achieve fairness rather than
    full and perfect compensation. Accordingly, I have calculated compensation on an
    equality basis and awarded each of the complainants the same amount in respect
    of the human rights breaches arising from the interviews and those arising from
    the separation detention.


  7. Taking into account all of the above matters, I recommend that the
    Commonwealth pay $5,000 in compensation to each of the following complainants
    who had their human rights breached as a result of their participation in the
    interviews:

    • (i) C1;


    • (ii) C2;


    • (iii) C3;


    • (iv) C4;


    • (v) C5;


    • (vi) C6;


    • (vii) C7;


    • (viii) C8;


    • (ix) C9;


    • (x) C10;


    • (xi) C11;


    • (xii) C12;


    • (xiii) C13;


    • (xiv) C14;


    • (xv) C15;


    • (xvi) C16;


    • (xvii) C17;


    • (xviii) C19;


    • (xix) C21;


    • (xx) C22;


    • (xxi) C23;


    • (xxii) C24;


    • (xxiii) C25; and


    • (xxiv) C26.


  8. I recommend that the Commonwealth pay an additional $4,000 to each of the
    following complainants to compensate them for the additional distress they
    suffered as a result of the breaches of their human rights associated with the
    separation detention:

    • (i) C1;


    • (ii) C3;


    • (iii) C4;


    • (iv) C8;


    • (v) C9;


    • (vi) C10;


    • (vii) C11;


    • (viii) C13;


    • (ix) C14;


    • (x) C15;


    • (xi) C17;


    • (xii) C18;


    • (xiii) C20;


    • (xiv) C21;


    • (xv) C22;


    • (xvi) C23;


    • (xvii) C24; and


    • (xviii) C26.

Additional
recommendations

Apology

  1. In addition to compensation, I consider that it is appropriate that the
    Commonwealth provide a formal written apology to each of the complainants to
    whom I have awarded compensation for the breaches of their human rights
    identified in this report. Apologies are important remedies for breaches of
    human rights. They, at least to some extent, alleviate the suffering of those
    who have been
    wronged.[56]

Contact
with complainants

  1. Two of the complainants have been removed from Australia – C1 and C8.


  2. I recommend that the Commonwealth undertake all appropriate measures to
    locate C1 and C8 in order to make payment of the compensation recommended above,
    as well as to provide them with a copy of this report and an apology.

Conduct of future interviews of
immigration detainees

  1. Given the risk that such interviews will cause unnecessary distress and
    agitation to detainees and may result in arbitrary breaches of detainees’
    privacy they should only be conducted when all other means of ascertaining
    identity have been exhausted. Further if such interviews are to be arranged DIAC
    should consider conducting the interviews itself with the assistance of overseas
    officials, rather than arranging for the overseas officials to conduct
    them.


  2. If DIAC is to arrange for overseas officials to conduct such interviews in
    the future I would recommend that it consider the following matters which would
    help address any risk posed by the process:

    • (i) DIAC should have regard to the UNHCR Representation in Japan’s Advisory Opinion on the rules of confidentiality regarding asylum
      information       and ensure it acts in accordance with this opinion.


    • (ii) The overseas officials should give DIAC a list of the possible
      questions they may ask during the interviews in advance of the interviews and
      DIAC should review the information they have about the detainees to consider
      whether the questions are necessary to ascertain identity and even if they are
      whether the likely responses to the questions (given the information DIAC has on
      the detainees) would have unduly adverse consequences for the detainees.


    • (iii) DIAC should inform the detainees who will be interviewed of the
      purpose of the interviews and the identity of the interviewers.


    • (iv) There should be clear written guidelines about the manner in which the
      interviews are to be conducted, the types of questions that can be asked and
      what is to happen to detainees following their interviews (ie whether they are
      to be separately detained) prepared by DIAC and given to the overseas officials
      sufficiently in advance of the interviews so that DIAC can discuss any issues
      with the overseas officials prior to them being conducted.


    • (v) At least one DIAC official should be present throughout the interviews
      and that official must be able to understand what is being discussed and be
      properly briefed as to what questions are and are not permissible. The
      guidelines for the interviews should clearly provide the DIAC official with the
      right to direct the overseas officials not to proceed with an impermissible
      question and to terminate an interview if necessary.


    • (vi) The detainees should be permitted to have support people present during
      the interviews.


    • (vii) DIAC’s standard practice for interviewing detainees which
      requires detainees consent to the recording of interviews to be obtained, dual
      tape recordings to be made and detainees being given a copy of the recording
      should be followed.


    • (viii) The detainees should not be separately detained unless DIAC
      determines that such separation is reasonably necessary. If DIAC does consider
      it to be reasonably necessary it should:

      1. prepare guidelines in advance of the interviews setting out the conditions
        of separation detention – no additional restrictions should be placed on
        the detainees other than those which DIAC considers to be reasonably
        necessary;


      2. ensure detention staff are informed of the guidelines so that they clearly
        understand what the conditions are to be; and


      3. inform the detainees of the purpose of the separation detention, the likely
        duration and the conditions that will govern their detention.


    • (ix) If a detainee’s English is not sufficiently proficient any
      explanation provided to them about the interviews or the separation detention
      should be translated.

DIAC’s response

  1. By letter dated 11 August 2008, DIAC was requested to advise the Commission
    whether it has taken or is taking any action as a result of my findings and
    recommendations and, if so, the nature of that action. DIAC was requested to
    provide its response by 25 August 2008, and an extension was subsequently
    granted to 1 September 2008.


  2. DIAC has informed the Commission that it proposes to provide a response.
    However, as my term as President of the Commission is to expire on 8 September
    2008, it is necessary to finalise this report. As at the date of this report, a
    response from DIAC has not been received.

..........................................................

John von Doussa

President

8 September 2008

ANNEXURE 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 HREOC Act. Part II
Divisions 2 and 3 of the HREOC Act confer functions on the Commission in
relation to human rights. In particular, s 11(1)(f) of the HREOC Act empowers
the Commission to inquire into acts or practices of the Commonwealth that may be
inconsistent with or contrary to the rights set out in the human rights
instruments scheduled to or declared under the HREOC Act.

Section 11(1)(f) of the HREOC Act states:

(1) The functions of the Commission are:

...

(f) to inquire into any act or practice that may be inconsistent with or
contrary to any human right, and:

(i) where the Commission considers it appropriate to do so-to endeavour, by
conciliation, to effect a settlement of the matters that gave rise to the
inquiry; and

(ii) where the Commission is of the opinion that the act or practice is
inconsistent with or contrary to any human right, and the Commission has not
considered it appropriate to endeavour to effect a settlement of the matters
that gave rise to the inquiry or has endeavoured without success to effect such
a settlement-to report to the Minister in relation to the inquiry.

Section 3 of the HREOC Act defines an “act” or
“practice” as including an act or practice done by or on behalf of
the Commonwealth or an authority of the Commonwealth.

The Commission performs the functions referred to in s 11(1)(f) of the HREOC
Act upon the Attorney-General’s request, when a complaint is made in
writing or when the Commission regards it desirable to do so (s 20(1) of the
HREOC Act).

In addition, the Commission is obliged to perform all of its functions in
accordance with the principles set out in s 10A of the HREOC Act, namely with
regard for the indivisibility and universality of human rights and the principle
that every person is free and equal in dignity and rights.

The Commission attempts to resolve complaints under the provisions of the
HREOC Act through the process of conciliation. Where conciliation is not
successful or not appropriate and the Commission is of the opinion that an act
or practice constitutes a breach of human rights, the Commission shall not
furnish a report to the Attorney-General until it has given the respondent to
the complaint an opportunity to make written and/or oral submissions in relation
to the complaint (s 27 of the HREOC Act).

If, after the inquiry, the Commission finds a breach of human rights, it must
serve a notice on the person doing the act or engaging in the practice setting
out the findings and the reasons for those findings (s 29(2)(a) of the HREOC
Act). The Commission may make recommendations for preventing a repetition of the
act or practice, the payment of compensation or any other action or remedy to
reduce the loss or damage suffered as a result of the breach of a person’s
human rights (ss 29(2)(b) and (c) of the HREOC Act).

If the Commission finds a breach of human rights and it furnishes a report on
the matter to the Attorney-General, the Commission is to include in the report
particulars of any recommendations made in the notice and details of any actions
that the person is taking as a result of the findings and recommendations of the
Commission (ss 29(2)(d) and (e) of the HREOC Act). The Attorney-General must
table the report in both Houses of Federal Parliament within 15 sitting days in
accordance with s 46 of the HREOC Act.

It should be noted that the Commission has a discretion to cease inquiry into
an act or practice in certain circumstances (s 20(2) of the HREOC Act),
including where the subject matter of the complaint has already been adequately
dealt with by the Commission (s 20(2)(c)(v) of the HREOC Act).

GLOSSARY

Commission – Human Rights and Equal Opportunity Commission

DIAC – Department of Immigration and Citizenship

DIMIA – Department of Immigration and Multicultural and Indigenous
Affairs

DIMIA’s initial letter to the Commission – letter from DIMIA to
the Commission dated 5 July 2007

DIMIA’s Response – letter from DIMIA to the Commission dated
27 September 2006, DIMIA’s formal response to the first complaint

DIMIA’s second response – letters from DIMIA to the Commission
dated 14 February 2007 and 22 March 2007, DIMIA’s response
to the second complaint

DIMIA’s third response – letter from DIMIA to the Commission
dated 3 December 2007, DIMIA’s response to the third
complaint

GSL – GSL (Australia) Pty Ltd

HREOC Act – Human Rights and Equal Opportunity Act 1986 (Cth)

ICCPR – International Covenant on Civil and Political Rights

Invitation - written invitation issued by DIMIA to the MPS in relation to the
interviews.

MPS officials – the officials from the Chinese Ministry of Public
Security who conducted the interviews

PRC – People’s Republic of China

Refugee Convention - Convention relating to the Status of Refugees

RRT – Refugee Review Tribunal

Separation detention – the detention of some of the complainants in the
Manning Building

UNHRC – United Nations Human Rights Committee

UNHCR – United Nations High Commission on Refugees

UNHCR Advisory Opinion - United Nations High Commission on Refugees
Representation in Japan’s Advisory Opinion on the rules of
confidentiality regarding asylum information dated
31 March 2005

The US Country Report on the PRC - The United States Department of State says
the following in its Country Report on Human Rights Practices in the PRC
for 2004 (released on 28 February 2005)




ENDNOTES

[1] The relevant Department has
since been renamed twice and is currently named the Department of Immigration
and Citizenship (DIAC). To avoid confusion, I have chosen to refer to the
Department as DIMIA throughout this report. DIMIA was the applicable name of the
Department at the time of the relevant allegations and at the time the complaint
was made to the Commission.

[2] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force
3 January 1976).

[3] A more
detailed outline of the Commission’s functions in relation to the
investigation and conciliation of complaints of human rights breaches against
the Commonwealth and its functions in relation to reporting on substantiated
complaints that have not been resolved through the process of conciliation is
contained in Annexure A.

[4] HREOC Report No. 39 – Report of a complaint by Mr Huong Nguyen and Mr
Austin Okoye Against the Commonwealth of Australia and GSL (Australia) Pty
Limited (2008), [48]-[49]; HREOC Report No. 35 - Report of an in inquiry
into a complaint by Mr AV of a breach of his human rights whilst in immigration
detention, April 2006, Part 8.2.1; also see HREOC Report No. 21 – Report of an inquiry into a complaint by six asylum seekers concerning their
transfer from immigration detention centres to State prisons and their detention
in those prisons (2002), Part 4.2.

[5] HREOC Report No. 39
– Report of complaint by Mr Huong Nguyen and Mr Austin Okoye Against
the Commonwealth of Australia and GSL (Australia) Pty Limited (2008),
[48]-[49]; HREOC Report No. 27 – Report of an inquiry into a complaint
by Ms KJ concerning events at Woomera Immigration Reception and Processing
Centre between 29-30 March 2002 (2004), Part
12.

[6] United Nations Human Rights
Committee, General Comment No. 8 (1982),
[1].

[7] Torres v Finland Communication No. 291/1988 UN Doc CCPR/C/38/D/291/1988 and A v Australia Communication No 560/1993 UN Doc
CCPR/C/59/D/560/1993.

[8] Communication No. 456/1991 UN Doc CCPR/C/51/D/456/1991.

[9] Communication No 833/1998 UN Doc
CCPR/C/70/D/833/1998.

[10] (2nd edition,
2004), [11.09].

[11] Communication No. 265/1987 UN Doc
CCPR/C/35/D/265/1987.

[12] Ibid,
[9.4].

[13] HREOC Report No. 24
(2002).

[14] Ibid Part 4.4.1.1.
See also HREOC Report No. 18 - Report of an inquiry into a complaint by Mr
Duc Anh Ha of acts or practices inconsistent with or contrary to human rights
arising from immigration detention (2001),
[15.1].

[15] A v Australia Communication No. 305/1988, CCPR/C/39/D/305/1988, [9.4]; Spakmo v Norway Communication No. 631/1995, CCPR/C/67/D/631/1995. See also Concluding
Comments Regarding Switzerland (1996), CCPR/C/79/Add.70.

[16] Weeks v United Kingdom Series A, No. 114, ECHR, 2 March 1987; Thynne, Wilson and Gunnell v
United Kingdom, Series A, No. 190, ECHR, 25 October 1990; Amuur v
France, Application No. 19776/1992, ECHR, 25 June 1996; Aerts v
Belgium, Application No. 25357/1994, ECHR, 30 July 1998; Erkalo v
Netherlands Application No. 23 807/94, ECHR, 23 September 1998. Cf X v
Switzerland Application No. 7754/77, ECHR, 9 May
1977.

[17] HREOC Report No. 24
– Report of an inquiry into complaints by five asylum seekers
concerning their detention in the separation and management block at the Port
Headland Immigration Reception and Processing Centre (2002), Part
4.4.1.1

[18] Communication No
305/1988 UN Doc
CCPR/C/39/D/305/1988.

[19] Ibid
[5.8].

[20] Communication No
560/1993 UN Doc
CCPR/C/59/D/560/1993.

[21] Ibid
[9.2].

[22] Communication No
631/1995 UN Doc CCPR/C/67/D/631/1995,
[6.3].

[23] UNHRC General Comment
21, [2].

[24] Cabal and Pasini v Australia Communication No 1020/2001 Un Doc CCPR/C/78/D/1020/2001, [7.2].

[25] Walker and Richards v
Jamaica Communication No 529/1993 UN Doc CCPR/C/60/D/639/1995; Kennedy v Trinidad and Tobago Communication No 845/1998 Un Doc CCPR/C/74/D/845/1998; R.S. v Trinidad and Tobago Communication No 684/1996 UN Doc CCPR/C/74/D/684/1996.

[26] [2007] NZSC 70.

[27] Ibid
[79].

[28] Communication No.
74/1980 UN Doc CCPR/C/18/D/74/1980.

[29] Communication No 726/1996 UN
Doc CCPR/C/76/D/726/1996.

[30] Ibid. Mr Rivas Posada, with
whom Messrs Bhagwati and Ando agreed, dissented in the case and found that mere
obstruction of access to medical records per se did not breach Article
10(1).

[31] See discussion the
meaning of the word ‘dignity’ in a different context in A, R (on
the application of) v East Sussex County Council [2003] EWHC 167,
[86]-[89].

[32] UNHRC
General Comment 16, [4].

[33] Communication No. 488/1992 UN Doc
CCPR/C/50/D/488/1992.

[34] Ibid
[8.3]. Whilst this case concerned a breach of article 17(1) in relation to
privacy, these comments would apply equally to an arbitrary interference with
family.

[35] (2nd ed,
2005).

[36] M Nowak, UN Covenant on Civil and Political Rights CCPR Commentary (2nd ed, 2005) 380 [7].

[37] UNHRC
General Comment 16, [1].

[38] IP v Finland Communication No 450/1991 UN Doc
CCPR/C/48/D/450/1991 – this involved a complaint about disclosure of
personal information. Whilst the UNHRC ultimately held that the disclosure did
not breach art 17(1) it did not suggest that a disclosure of personal
information would not fall within the terms of this
article.

[39] (1938) 60 CLR 266,
362 per Dixon J.

[40] (1992) 110
ALR 449, 449-450 per Mason CJ, Brennan, Deane and
Gaudron JJ.

[41] Opened for
signature 28 July 1954, 189 UNTS 150 (entered into force 22 April
1954).

[42] The importance of
taking all reasonable steps to remove illegal immigrants has been recognised by
the Privy Council in Tan Le Lim [1984] 1 WLR 704. In that case the Privy
Council held that the Hong Kong Director of Immigration’s power to detain
illegal immigrants is subject to the limitation that she must take all
reasonable to ensure the removal of an illegal
immigrant.

[43] Section 3(3) of
the HREOC Act provides that a reference to, or to the doing of, an act includes
a reference to a refusal or failure to do an
act.

[44] HREOC Act s
29(2)(a).

[45] HREOC Act s
29(2)(b).

[46] HREOC Act s
29(2)(c).

[47] HREOC Report No.
39 (2008), [313].

[48] See Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217, 239 (Lockhart
J).

[49] Sharman v Evans (1977) 138 CLR 563, 589 (Gibbs and Stephen
JJ).

[50] Hall v Sheiban (1989) 20 FCR 217, 256; McAlister v SEQ Aboriginal Corporation [2002]
FMCA 109, [156]; Phillis v Mandic [2005] FMCA 330, [23]; Rankilor v
Jerome Pty Ltd [2006] FMCA 922, [41]; Gilroy v Angelov [2000] FCA
1775, [105]; Re Susan Hall; Dianne Susan Oliver and Karyn Reid v A & A
Sheiban Pty Ltd; Dr Atallah Sheiban and Human Rights and Equal Opportunity
Commission (1989) 20 FCR 217,
[70].

[51] Phillis v
Mandic [2005] FMCA 2, [79]; Hall v Sheiban (1989) 20 FCR 217,
256.

[52] (1989) 20 FCR 217,
256.

[53] [1988] 2 All ER 118.

[54] Ibid
122.

[55] Carr v Boree
Aboriginal Corp [2003] FMCA 408; McMahon v Bowman [2000] FMCA 3; San v Dirluck Pty Ltd (2005) 222 ALR 91; Font v Paspaley v Pearls [2002] FMCA 142; Grulke v KC Canvas Pty Ltd [2000] FCA 1415; Cooke
v Plauen Holdings [2001] FMCA 91; Song v Ainsworth Game Technology Pty
Ltd [2002] FMCA 31; Escobar v Rainbow Printing Pty Ltd (No 2) [2002]
FMCA 122; Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd [2003]
FMCA 160; Kelly v TPG Internet Pty Ltd [2003] FMCA 584; Gardner v All
Australia Netball Association (2003) 197 ALR 28; Ho v Regulator Australia
Pty Ltd [2004] FMCA 62; Howe v Qantas Airways Ltd (2004) 1888 FLR 1; Dare v Hurley [2005] FMCA 844; Fenton v Hair & Beauty Gallery Pty
Ltd [2006] FMCA 3; Rankilor v Jerome Pty Ltd [2006] FMCA 922; Wattle v Kirkland (No 2) [2002] FMCA 135; Aleksovski v Australia Asia
Aerospace Pty Ltd [2002] FMCA 81; McAlister v SEQ Aboriginal Corporation [2002] FMCA 109; Beamish v Zheng [2004] 60; Hughes v Car Buyers
Pty Ltd (2004) 210 ALR 645; Cross v Hughes & Anor [2006] FMCA
976; Hewett v Davies & Anor [2006] FMCA 1678; Haar v Maldon
Nominees (2000) 184 ALR 83; Travers v New South Wales (2001) 163 FLR
99; McKenzie v Department of Urban Services and Canberra Hospital (2001)
163 FLR 133; Sheehan v Tin Can Bay Country Club [2002] FMCA 95; Randell v Consolidated Bearing Company (SA) Pty Ltd [2002] FMCA 44; Bassanelli v QBE Insurance [2003] FMCA 412; Clarke v Catholic
Education Office (2003) 202 ALR 340; Power v Aboriginal Hostels Ltd [2004] FMCA 452; Hurst & Devlin v Education Queensland [2005] FCA
405; Drury v Andreco Hurll Refractory Services Pty Ltd (No 4) [2005] FMCA 1226; Vickers v The Ambulance Service of NSW [2006] FMCA
1232.

[56] D Shelton, Remedies in International Human Rights Law (2000) 151.