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President reports on AH v Commonwealth of Australia (Department of Immigration and Border Protection) [2014] AusHRC 88


The President of the Australian Human Rights Commission, Professor Gillian Triggs, has found that the Commonwealth’s failure to detain Mr AH in the least restrictive manner possible is inconsistent with the prohibition on arbitrary detention in article 9(1) of the International Covenant on Civil and Political Rights (ICCPR).

Mr AH arrived on Christmas Island as an irregular maritime arrival in April 2009. He was detained in immigration detention centres from April 2009 until September 2009.

In September 2009 Mr AH was transferred to criminal detention at Hakea Prison on charges related to people smuggling. In November 2010 he was convicted of people smuggling related offences and sentenced to five years imprisonment. In January 2012, this conviction was set aside and Mr AH was returned to closed immigration detention where he remains.

At the time the President made her decision, Mr AH had been detained in immigration detention centres for nearly three years.

Under international law, to avoid being arbitrary, detention must be necessary and proportionate to a legitimate aim of the Commonwealth. 

The President found that the Commonwealth has not explained why Mr AH was not able to reside in the community or in a less restrictive form of detention (if necessary with appropriate conditions imposed to mitigate any identified risks) while his immigration status was initially resolved and while ongoing judicial proceedings are determined. The President was not satisfied that the ongoing detention of Mr AH in an immigration detention centre was proportionate to the aims of the Commonwealth’s immigration policy.

The President recommended that the Department refer Mr AH’s case to the Minister for Immigration and Border Protection without further delay, so that the Minister may consider exercising his power to make a residence determination.

The President also recommended that the Commonwealth pay financial compensation to Mr AH in the amount of $200,000.

In response to the President’s recommendations, the Department advised that on 4 July 2014 it made a submission to the Minister in relation to Mr AH so that the Minister could consider whether to make a residence determination. The Department awaits the Minister’s decision.

As this decision can be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth), this is the only statement the Commission will be making on this matter.

A copy of this report AH v Commonwealth of Australia (DIBP) is available online.

Media contact: Sarah Bamford (02) 9284 9758 or 0417 957 525.