The President of the Australian Human Rights Commission, Professor Gillian Triggs, has found that the failure to place Ms Mai in community detention or another less restrictive form of detention (if necessary, with conditions) was arbitrary and inconsistent with her right to liberty in article 9(1) of the International Covenant on Civil and Political Rights (ICCPR).
Ms Mai is a national of Vietnam who arrived on Christmas Island in June 2010. Ms Mai has been detained in immigration detention facilities for about three and a half years, save for a three week period in community detention.
The Department of Immigration advised that the resolution of Ms Mai’s status has become protracted due to delays in obtaining her travel documentation from the Vietnamese Embassy. At times during Ms Mai’s period of detention, case managers and the IHMS have noted her deteriorating mental health and wellbeing and recommended variation to her detention placement.
Ms Mai was placed in community detention for three weeks in September 2011, however the Department advised that this placement was revoked due to ‘significant behavioural concerns’.
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. However, Ms Mai has been detained for over three years. Professor Triggs did not consider that allegations of behavioural concerns in September 2011 (in respect of which no charges have been laid) justify Ms Mai’s ongoing detention in an immigration detention centre.
Professor Triggs found that the Commonwealth has not appropriately justified why she 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 her immigration status was initially resolved and for an ongoing basis during the period her travel documents are being arranged with the Vietnamese Embassy.
The President recommended that Ms Mai be paid compensation in the amount of $200,000 and that the Department refer her case to the Minister for consideration of alternatives to closed detention.
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: Mai v Commonwealth of Australia (Department of Immigration and Citizenship) is available online.
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