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President reports on AQ v Commonwealth of Australia (Department of Immigration and Border Protection) [2014] AusHRC 84


The President of the Australian Human Rights Commission, Professor Gillian Triggs, has found that the Commonwealth’s failure to release Mr AQ from closed immigration detention for a period of 27 months was inconsistent with the prohibition on arbitrary detention in article 9(1) of the International Covenant on Civil and Political Rights (ICCPR). 

Mr AQ is a national of Iran who arrived by boat on Christmas Island on 4 June 2011, seeking asylum under the Convention relating to the Status of Refugees.  He was detained in immigration detention facilities until 6 September 2013.  At that time, he was granted a visa and released into the community. 
The Department of Immigration and Border Protection (at that time known as the Department of Immigration and Citizenship) had assessed Mr AQ to be a refugee on 23 November 2011. 

At all relevant times, it was government policy not to allow people in Mr AQ’s position to apply for a protection visa until they had received a security assessment from ASIO.  Mr AQ received a ‘clear’ security assessment from ASIO on 21 November 2012.  Despite that fact, the Minister for Immigration and Citizenship did not allow him to apply for a protection visa at that time. 

At all times Mr AQ was in detention, the Minister had the power to place him in community detention, or grant him a visa.  On 22 February 2012, and again on 26 October 2012, ASIO advised the Commonwealth that Mr AQ would not pose a risk to security if released into community detention. 
Despite these facts, the Commonwealth did not place Mr AQ in community detention or grant him a visa until 6 September 2013.  In these circumstances, the President found that the Commonwealth had not shown that keeping Mr AQ in detention was necessary and proportionate to any legitimate objective. 

The Commission made recommendations that the Commonwealth pay compensation in the amount of $150,000 to Mr AQ and provide him with an apology. These recommendations were not accepted.

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: AQ v Commonwealth of Australia (Department of Immigration and Border Protection) is online.

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