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President reports on Jafari v Commonwealth of Australia (Department of Immigration and Border Protection) [2014] AusHRC 85


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

Mr Jafari is a national of Afghanistan and of the United Kingdom who arrived on Christmas Island in April 2010 as an undocumented Irregular Maritime Arrival.

Mr Jafari was detained in immigration detention centres from April 2010 until he was removed to the United Kingdom in June 2012.

Under international law, asylum seekers who enter a State party’s territory may be detained for a brief initial period in order to document their entry, record their claims, and determine their identity if it is in doubt.

Mr Jafari was detained for approximately two years and two months.

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

The Department did not, at any time during Mr Jafari’s detention, refer his case to the Minister to consider granting Mr Jafari a visa or placing him in community detention.

The President found that the Commonwealth has not explained why Mr Jafari 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 for the period his judicial review proceedings were ongoing. The President was not satisfied that the detention of Mr Jafari in an immigration detention centre was proportionate to the aims of the Commonwealth’s immigration policy.

The President recommended that Mr Jafari be paid compensation in the amount of $140,000.

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

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