Report No. 41: El Masri v Commonwealth (Department of Immigration and Citizenship) (2009)

El Masri v Commonwealth (Department of Immigration and Citizenship)

Report into unlawful and arbitrary detention and the right of people in
detention to humane treatment

(2009) AusHRC 41

ISSN 1837-1183 (Print)

ISSN 1837-1191 (Online)

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Introduction

Part A: Structure of this report

Part B: Summary of findings and recommendations

Part C: The complaints by Mr El Masri

Part D: The Commission’s human rights inquiry and complaints
function

Part E: Mr El Masri’s detention from 14 November 2002 to
14 October 2005

Part F: The detention of Mr El Masri on 28 November 2006

Part G: The detention of Mr El Masri in MSU

Part H: Use of force on 8 August 2005

Part I: Restrictions on Mr El Masri’s telephone calls

Part J: Visits by Mr El Masri’s family

Part K: Findings and recommendations

Appendix 1

Appendix 2
Functions of the Commission

Glossary

August 2009

The Hon Robert McClelland MP

Attorney-General

Parliament House

Canberra ACT 2600

Dear Attorney

I attach my report of an inquiry into the complaints made pursuant to
section 11(1)(f)(ii) of the Human Rights and Equal Opportunity Commission Act
1986 (Cth) by Mrs Cheryle El Masri on behalf of Mr Ahmed El Masri.

I have found that the acts and practices of the Commonwealth breached
Mr El Masri’s right not to be subject to unlawful or arbitrary
detention and his right to be treated with humanity and dignity while in
detention. These fundamental human rights are protected by article 9(1) of and
article 10(1) of the International Covenant on Civil and Political
Rights.

By letter dated 10 July 2009 the Department of Immigration and Citizenship
provided the following response to my findings and recommendations:

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

The department acknowledges the President’s recommendation to:

pay compensation in the amount of $105,000.00 to Mr El Masri;

provide a formal written apology to Mr El Masri for the
breaches of human rights identified in the report; and

amend the Migrations Series Instructions 411: Establishing immigration
status – in the field and in detention to require officers to reassess the
lawfulness of a person’s detention where the basis for that person’s
detention may be affected by recent legal developments, including court
decisions affecting a class of people.

The issue of compensation is
complicated by Mr El Masri’s ongoing damages claim in the NSW
Supreme Court involving the Commonwealth and the detention service providers.
The Commonwealth is currently considering the President’s recommendation
in light of that litigation.

The department accepts the President’s recommendation to provide
a formal written apology and we will forward you a copy once it is sent.

Migration Series Instruction 411 has been updated to require compliance and
detention staff to consider relevant case law when assessing whether or not a
person may be unlawful and liable to be detained. In recognition of the
significance of the issue, the department has also implemented a Chief Executive
Instruction (CEI 33). CEI 33 provides direction to all staff requiring
certain processes to be followed where adverse litigation outcomes have
potential implications for detention and/or removal. The CEI requires the
involvement of departmental officials at the highest levels to ensure that the
processes outlined in the CEI are followed. A copy of CEI 33 is
enclosed for your information.

CEIs are binding on departmental staff and staff can be sanctioned under the
Australian Public Service Code of Conduct in the event of a breach.

At the date this report was finalised, the Department had not provided
further advice about the outcome of their consideration of my recommendation
that Mr El Masri be paid compensation. I have been provided
with a copy of the letter of apology from the Department to
Mr El Masri.

Yours sincerely

The Hon Catherine Branson QC

President

Australian Human Rights
Commission

Introduction

This report is about the detention of Mr El Ahmed Masri and his right
to liberty and humane treatment.
The report finds that the failure to conduct a timely and thorough review of
the legality of Mr El Masri’s detention significantly delayed
his release from immigration detention. It investigates why
Mr El Masri, who has been diagnosed with schizo-affective disorder,
was kept in isolation in what is known as the ‘Management Support
Unit’ of the Villawood Immigration Detention Centre for 77 days. Finally,
it examines the administrative failures that led to
Mr El Masri being again detained a year after his release from
detention despite being the holder of a valid visa.
Mr El Masri has lived in Australia since 1976. He was twelve
years old when he arrived here from Lebanon with his family. He has lived in
Australia ever since but he is still a citizen of Lebanon. In 1992 he married
Cheryle El Masri. They have five children.
Mr El Masri has a long criminal record. In 2002 his visa was
cancelled on character grounds and he was taken into immigration detention.
When Mr El Masri had been in detention for over two years,
the Full Federal Court made a decision about a man called Mr Nystrom who had
lived in Australia from a young age before having his visa cancelled on
character grounds. The Court decided that the decision to cancel Mr
Nystrom’s visa was legally wrong because the Minister did not consider
whether Mr Nystrom had been absorbed into the Australian community.
The decision in Nystrom cast doubt on whether an identifiable class
of people should continue to be detained. Identifying and reviewing the case of
individuals who may have held visas and be entitled to be released from
detention should have been an urgent priority. People’s liberty depended
upon it.
Following the Court’s decision, the Department of Immigration and
Citizenship should have urgently sought to identify whether the type of error
that was made in Mr Nystrom’s case had been made in the cases of other
people who were still in immigration detention. I have found that the
Department took too long to identify that Mr El Masri may have
been ‘Nystrom-affected’.
Once Mr El Masri was identified as someone who may have been
‘Nystrom-affected’, an urgent review of his individual case should
have been commenced – and completed – within 10 days. The person
conducting the review should have made reasonable inquiries – including
giving Mr El Masri to the chance to put his case – before
completing the review. This did not happen.
Instead, it took three months and 13 days for the Department to identify
that, in light of the decision in Nystrom, the reasonable
suspicion that Mr El Masri was an unlawful non-citizen had been
lost. By the time Mr El Masri was released from immigration
detention on 14 October 2005 he had been in immigration detention for two years
and eleven months. His mental health had deteriorated. His discharge summary
said he required ‘ongoing psychiatric care’.
During his last three months in detention Mr El Masri was
detained for 77 days in isolation in the Management Support Unit. He was
diagnosed with schizoaffective disorder and frequently transported from
Villawood Immigration Detention Centre to Bankstown Hospital for psychiatric
assessment and treatment.
The failure of the Department to conduct a timely and thorough review of
Mr El Masri’s case prevented his early release at a time when
medical experts agreed that the best place to treat his mental illness was in
the community. This Report finds that this failure was inconsistent with
Mr El Masri’s right not to be arbitrarily detained.
After Mr El Masri was released, a Federal Court judge
(Justice Allsop) made an order that Mr El Masri had a valid visa.
Although the Department had lodged an appeal to the High Court against the
decision in Nystrom, the Department did not record the fact that
Mr El Masri held a valid visa by reason of the order of Justice
Allsop.
This meant that when the High Court decided on 8 November 2006 that the Full
Federal Court’s decision in Nystrom was wrong, the Department thought this
decision meant that Mr El Masri was again an unlawful
non-citizen. It did not. The order made by Justice Allsop made clear that
Mr El Masri held a valid visa.
Nevertheless, on the 28 November 2006, over a year after
Mr El Masri was released from detention, police and departmental
officers went to his home. His daughter answered the door. Police officers led
Mr El Masri out onto the street in his t-shirt and underwear and
took him to Villawood Immigration Detention Centre.
Seven hours later Mr El Masri was released from detention.
Asked why Mr El Masri was detained on
28 November 2006, the Department has said it had failed to update its
record-keeping system.
Section 189 of the Migration Act 1958 (Cth) (Migration Act) is
expressed in mandatory terms – a departmental officer must detain a person
who they reasonably suspect is an unlawful non-citizen. However, the mandatory
requirement to detain a person under s 189 does not deprive the Department of
its power to do other acts (for example, to continue to review the legality of a
person’s ongoing detention and to keep up-to-date and accurate records).
Doing these acts can protect a person’s right to liberty. Failing to do
these acts may result in a breach of Australia’s obligations under the International Covenant of Civil and Political Rights.
This report finds that two administrative failures – the failure to
conduct a prompt and thorough review of the legality of
Mr El Masri’s ongoing detention and the failure to record the
fact that he had a valid visa – resulted in the unnecessary and arbitrary
detention of a mentally ill man.
I have recommended that Mr El Masri be paid a total of
$105 000 in compensation and that the Commonwealth apologise to
Mr El Masri. The Department has accepted my findings that
Mr El Masri’s human rights were breached and implemented
policies and procedures that I believe will help prevent such breaches
occurring in the future.

Part A : Structure of this
report

This report concerns the human rights of Mr Ahmad El Masri while in
immigration detention. I have found that Mr El Masri’s
human rights were breached by the actions of the Department of Immigration and
Citizenship (the Department) (formerly known as the Department of Immigration
and Multicultural and Indigenous Affairs).¹
I have also inquired into the actions of GSL (Australia) Pty Ltd (GSL)
which at the relevant time was contracted to manage the Villawood Immigration
Detention Centre (VIDC) where Mr El Masri was detained.
I made this inquiry because I accepted these actions were taken on
behalf of the Commonwealth. I have not found that the actions of GSL on
behalf of the Commonwealth breached the human rights of Mr El Masri.
The complaints relate to the following events:

(a) The
detention of Mr El Masri in VIDC from 14 November 2002 to

14
October 2005.

(b) The detention and treatment of Mr El Masri in the
Management Support Unit from 29 July 2005 to 14 October 2005.

(c) An incident on 8 August 2005 where Mr El Masri was
allegedly assaulted by GSL officers.

(d) The circumstances in which Mr El Masri’s visits from his
family occurred.

(e) The restrictions placed on Mr El Masri’s ability to
contact his lawyer and family while in immigration detention.

(f) The detention of Mr El Masri in VIDC for approximately
seven hours on 28 November 2006.
Following the summary of my findings and recommendations in Part B, Part C of this report sets out the background to the complaints. Part
D explains the special nature of the Commission’s functions of
inquiring into complaints of human rights breaches. Parts E-J of this
report explain my conclusion regarding the allegations of breaches of human
rights and Part K sets out my findings and recommendations.
I have also included a glossary at the end of my report that explains
the abbreviations I have used in the report.
‘Human rights’ for the purposes of this report means the human
rights protected by the International Covenant on Civil and Political Rights (ICCPR).²

Part B: Summary of findings
and recommendations

(a) Detention of Mr El Masri from 16 July 2005 to 14 October 2005
inconsistent with art 9(1) of the ICCPR

I find that the failure of the Department to conduct a timely and
thorough review of Mr El Masri’s immigration status following
the Full Federal Court’s decision in Nystrom v Minister for Immigration
and Multicultural and Indigenous Affairs (Nystrom)³ on 1
July 2005 resulted in his unlawful detention and was inconsistent with his right
not to be arbitrarily detained.
A timely and thorough review would have identified that
Mr El Masri held an absorbed person visa. This conclusion was
ultimately reached on 14 October 2005 and Mr El Masri was
released from detention.
In my view, it is reasonable to expect that a review of
Mr El Masri’s immigration status following Nystrom should
have been completed no later than 16 July 2005. I therefore conclude that
Mr El Masri should have been released from immigration detention
no later than 16 July 2005.
I therefore find that Mr El Masri’s detention from 16
July 2005 to 14 October 2005 was unlawful in breach of art 9(1) of the
ICCPR and the failure of the Department to act promptly to review
Mr El Masri’s case was inconsistent with his right not to be
arbitrarily detained.

(b) Failure to treat Mr El Masri with
humanity and dignity inconsistent with art 10(1) of the ICCPR

I find that the placement of Mr El Masri in the
Management Support Unit (MSU) of VIDC for substantially the entire period from
29 July 2005 to 14 October 2005 breached Mr El Masri’s right to
be treated with humanity and dignity under art 10(1) of the ICCPR.
It was inappropriate for a person with Mr El Masri’s mental
health problems to be kept in the restrictive and isolated conditions of MSU.
The conditions and circumstances in which Mr El Masri found
himself in MSU caused him anxiety or mental suffering over and above that
otherwise caused by his detention.

(c) Detention of Mr El Masri
on 28 November 2006 inconsistent with art 9(1) of the ICCPR

I find Mr El Masri was unlawfully detained on
28 November 2006. There were two causal factors for
Mr El Masri’s detention on this date: the failure properly to
record the decision of Justice Allsop on 24 November 2005 to restore
Mr El Masri’s transitional (permanent) visa; and the failure to
conduct appropriate searches of court orders relating to Mr El Masri.
These failures by the Department to act were inconsistent with
Mr El Masri’s right not to be arbitrarily detained.

(d) Other allegations of breaches of human rights not
upheld

I find that Mr El Masri’s initial detention on 14
November 2002 pursuant to s 189 of the Migration Act was not a
discretionary act or practice of the Department and therefore falls beyond the
scope of my power of inquiry under s 11(1)(f) of the Human Rights and Equal
Opportunity Commission Act 1986 (Cth) (HREOC Act).
There is also insufficient evidence to conclude that
Mr El Masri’s detention became arbitrary during the period
between 14 November 2002 and 16 July 2005 when I have found that a
review of Mr El Masri’s immigration status should have been
completed.
The evidence before me does not support a finding that
Mr El Masri was assaulted on 8 August 2005. I therefore find
there was no breach of the prohibition on cruel, inhumane or degrading treatment
(art 7 of the ICCPR) or the obligation to treat detainees humanely (art 10(1) of
the ICCPR) arising out of the incident on that date.
I am not satisfied that the evidence is sufficient to establish that
the restrictions placed upon Mr El Masri’s telephone calls were
arbitrary and in breach of Mr El Masri’s human rights under arts
10, 17(1) and 23 of the ICCPR.
Nor am I satisfied that the evidence is sufficient to establish that
Mr El Masri was denied adequate access to his family or that the
conditions in which visits by his family occurred constituted a breach of
Mr El Masri’s right to humane treatment under art 10(1) of the
ICCPR or an arbitrary interference with, or failure to protect,
Mr El Masri’s right to family under arts 17(1) and 23 of the
ICCPR.

Part C: The complaints by
Mr El Masri

Background

This inquiry is the result of a complaint by Mrs Cheryle El Masri (the
Complainant) on behalf of her husband, Mr Ahmad El Masri, against the
Commonwealth of Australia (the Department).
This complaint can be divided into six allegations:
- Mr El Masri was unlawfully detained in immigration detention
  from 14 November 2002 to 14 October 2005: Part E.
- Mr El Masri was unlawfully detained on
  28 November 2006: Part F.
- Mr El Masri’s prolonged detention in MSU breached his human
  rights: Part G.
  
  The allegation that
  Mr El Masri received inadequate medical care while in MSU
  
  is
  also dealt with in Part G.
- Mr El Masri was assaulted by guards on 8 August 2005: Part
  H.
- Mr El Masri’s phone calls to his family and his legal
  representative were restricted: Part I.
- Mr El Masri’s children were required to visit him when he
  was detained ‘in a cage’: Part J.
Both the Complainant and the Department have provided submissions in this
matter. A summary of the submissions and evidence provided in this matter is
contained at Appendix 1.
The Department and the Complainant have also had the opportunity to respond
to my tentative view dated 19 January 2009.
In response to my tentative view, the Department submitted that the
Commission should not continue to inquire into the acts or practices complained
of by Mr El Masri pursuant to s 20(2)(c)(iv) of the HREOC Act,
‘as it is clear that Mr El Masri is seeking a more
appropriate remedy in relation to the subject matters of the complaint by way of
litigation in the Supreme Court of New South Wales’.⁴
I decided not to discontinue my inquiry. As I explained in my
letter to the Department, there were a number of factors I considered in
making this decision. One important factor was that complaints of breaches of
human rights are, by their nature, different from common law claims. For
example, determining a complaint of being subjected to arbitrary detention
contrary to art 9(1) can be distinguished from an action in a case of false
imprisonment. The tort of false imprisonment will occur when the unlawful
conduct of one person deprives another person of their liberty. A breach of art
9(1) will occur where a person’s detention occurs as a result of unlawful
acts or where a person’s detention becomes arbitrary as a result of unjust
or unreasonable acts or the unjust or unreasonable application of the law.
My function in investigating complaints of human rights is not to determine
whether the Commonwealth has acted consistently with Australian law but whether
the Commonwealth has acted consistently with the human rights defined and
protected by the ICCPR.
It follows that the content and scope of the rights protected by the ICCPR
should be interpreted and understood by reference to the text of the relevant
articles of international instruments and by international jurisprudence about
their interpretation.

Findings of fact

I consider the following statements about the circumstances which have
given rise to Mr El Masri’s complaints to be uncontentious.
Mr El Masri is a citizen of Lebanon. He was born in 1964 and
arrived in Australia with his family in 1976 when he was 12 years old. He has
lived here ever since.
In 1992, Mr El Masri married Mrs Cheryle El Masri, who
brought this complaint to the Commission on his behalf. Together they have five
children.
Mr El Masri has a criminal record.
Mr El Masri’s first criminal offence occurred when he was
thirteen years old, and other convictions followed.
Mr El Masri has a history of mental illness that predates his
entry into immigration detention.
In 2000, Mr El Masri was convicted of three counts of armed
robbery and sentenced to a minimum term of two years and an additional term of
two years.
On 25 August 2002, Mr El Masri’s transitional (permanent)
visa was cancelled on character grounds under s 501(2) of the Migration Act. By
virtue of Mr El Masri’s convictions, he was considered to have a
‘substantial criminal record’ within the meaning of s 501(6)(a) of
the Migration Act and therefore did not pass the character test in s
501(2).
On 14 November 2002, Mr El Masri was taken into immigration
detention. On 15 August 2003, he was transferred from Metropolitan Reception and
Remand Centre (MRRC) at Silverwater to VIDC.
On 1 July 2005, the Full Federal Court handed down its decision in Nystrom.⁵ The Full Federal Court considered whether the
decision of the Minister to cancel Mr Nystrom’s transitional (permanent)
visa on character grounds pursuant to s 501 of the Migration Act was affected by
jurisdictional error. The Court held that the Minister committed a
jurisdictional error by failing to take into consideration the fact that Mr
Nystrom also held an absorbed person visa. Alternatively, if Mr Nystrom held
only an absorbed person visa and not a transitional (permanent) visa, as Mr
Nystrom contended, the Minister had cancelled a non-existent visa, which was not
a valid exercise of power.
On 29 July 2005, Mr El Masri was placed in the MSU, a short
term facility in VIDC where people who are disruptive or at risk of self-harm
are detained in isolation under frequent observation.
On a date no later than 29 August 2005, Mr El Masri was
identified by the Department as a person who may be Nystrom affected.
On 30 August 2005, a departmental officer sent an email stating that the
question of whether Mr El Masri held an absorbed person visa was
‘legally tricky’ and that it may be appropriate to seek external
advice.⁶
Over two weeks later on 16 September 2005, the same departmental officer
sent an email titled ‘PRELIMINARY ADVICE – NOT FINAL – NOT YET
SECOND COUNSELLED’ that stated ‘on balance, I think it is open
for the view to be taken that Mr A S El Masri probably never ‘ceased
to be an immigrant’ before the critical date of 2 April 1984 and therefore
is not deemed to have held an absorbed person visa by operation s 34 of the
Migration Act 1958’.⁷
On 28 September 2005 Mr El Masri’s lawyer, Ms Michaela
Byers, sent an email to the Director of the Detention Case Co-ordination stating
Mr El Masri had instructed her to ‘make a habeas corpus
application in the Federal Court to seek his release from detention’. Ms
Byers stated Mr El Masri should be released pursuant to the
Federal Court’s authority in Nystrom.⁸
On 4 October 2005 Ms Byers wrote to Australian Government solicitors
advising that she had filed an application on behalf of
Mr El Masri in the Federal Court, a directions hearing had been
set down for 19 October 2005, and her client would be ‘making an
application for injunction for release this week’.
On 14 October 2005, Mr El Masri was released from VIDC on the
basis that he met the objective criteria for the granting of an absorbed person
visa under s 34 of the Migration Act. The same day an email from a departmental
officer asked that Mr El Masri be advised that ‘[h]aving
regards to the information now available, including the letter of today, the 14
October 2005, from your legal representative Ms Michaela Byers, we are releasing
you from immigration detention on the basis that you may hold an absorbed person
visa by operation of section 34 of the Migration Act 1958 and may also hold a
transitional (permanent) visa’.⁹
On 24 November 2005, Justice Allsop ordered that a writ of
certiorari be issued, quashing the decision of the Minister to cancel
Mr El Masri’s transitional (permanent) visa.¹⁰ Both
Mr El Masri and the Minister agreed that the decision to cancel
Mr El Masri’s transitional (permanent) visa was vitiated by
jurisdictional error on the authority of Nystrom.¹¹
At the time of the order of Justice Allsop, the Department had lodged a High
Court appeal against the decision in Nystrom.
As a result of the decision of Justice Allsop, Mr El Masri’s
transitional (permanent) visa was re-instated. However, departmental systems
were not updated with the information that Mr El Masri’s
transitional (permanent) visa had been restored to him.
On 8 November 2006, the High Court upheld an appeal from the decision of the
Full Federal Court in Nystrom.¹² The High Court said that when
the Minister cancelled a transitional (permanent) visa on character grounds, the
Minister automatically cancelled the person’s absorbed person visa,
whether the Minister considered cancelling this visa or not.
The decision of the High Court to overturn the Full Federal Court’s
decision in Nystrom did not validate the original cancellation of
Mr El Masri’s transitional (permanent) visa because, by virtue
of the order of Justice Allsop, Mr El Masri’s transitional
(permanent) visa had been reinstated.
On 28 November 2006, Mr El Masri was detained in
VIDC. The duration of his detention from the time of his arrest at 5:50 am to
his release at 1:00 pm on the same day was approximately 7 hours.

Part D: The Commission’s human rights inquiry and
complaints function

Section 11(1)(f) of the HREOC Act gives the Commission the function of
inquiring into any act or practice that may be inconsistent with or contrary to
any human right.
Section 20(1)(b) of the HREOC Act requires the Commission to perform that
function when a complaint is made to it in writing alleging such an act or
practice.
The phrase ‘inconsistent with or contrary to any human right’ in
the HREOC Act is not defined or otherwise explained in the HREOC Act.
I understand the phrase ‘inconsistent with or contrary to’ be a
composite expression with the consequence that the Commission has the function
of inquiring into any act or practice that may be inconsistent with or contrary
to a person’s human rights, as recognised in international human rights
jurisprudence.¹³

The Commission can inquire into acts or
practices done by or on behalf of the Commonwealth

The Commission has the function of inquiring into any act or practice that
may be inconsistent or contrary to ‘human rights’, as defined in the
HREOC Act.
The expressions ‘act’ and ‘practice’ are defined in
s 3(1) of the HREOC Act as follows 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.
An ‘act’ or ‘practice’ only invokes the human rights
complaints jurisdiction of the Commission where the relevant act or practice is
within the discretion of the Commonwealth, its officers or agents.
As a judge of the Federal Court, in Secretary, Department of Defence v
HREOC, Burgess & Ors (‘Burgess’),¹⁴ I found
that the Commission can not, in conducting its inquiry, disregard the legal
obligations of the Secretary in exercising a statutory power. Therefore, if a
law requires that the act or practice be done by or on behalf of the
Commonwealth, its officers or its agents, and there is no discretion involved,
the act or practice done pursuant to that statutory provision will be outside
the scope of the Commission’s human rights inquiry
jurisdiction.¹⁵
It is clear that decisions about Mr El Masri’s treatment and
accommodation within the immigration detention system while he was detained in
VIDC are acts and practices to which the HREOC Act applies.
In the circumstances of this complaint, some of the alleged acts (or
omissions) were performed by officers employed by GSL, a private company
contractually engaged by the Commonwealth to provide immigration detention
centre services on behalf of the Commonwealth. In my view, the acts of GSL are
acts done ‘by or on behalf of the Commonwealth’ for the purposes of
s 3(1).¹⁶
The situation is not so clear in respect of Mr El Masri’s
complaint that his detention was unlawful or arbitrary contrary to art 9(1) of
the ICCPR. Mr El Masri was detained under s 189(1) of the
Migration Act, which provides:

If an officer knows or reasonably
suspects that a person in the migration zone is an unlawful non-citizen, the
officer must detain the person.
Where an officer has a ‘reasonable suspicion’ that a person is
an unlawful non-citizen, they are required under s 189 to detain them. They have
no discretion in relation to that decision and it accordingly falls beyond the
scope of Commission’s human rights inquiry jurisdiction.
However, officers retain a degree of discretion in relation to their
statutory powers and functions concerning a person who is held in mandatory
immigration detention. It is not the case that all acts, including failures to
act, in relation to a person who is in immigration detention are beyond the
scope of the Commission’s human rights inquiry jurisdiction.
Relevant to this case, s 189 does not prevent an officer from
reconsidering their suspicion or checking the bases upon which that suspicion
has been formed to consider its reasonableness. In my view, a failure to do so
is an ‘act’ into which I can inquire.
I therefore consider that the Commission has the power to inquire into
the discretionary administrative acts and practices of officers of the
Commonwealth – including failures to act – which may have the effect
of unjustly or inappropriately prolonging a person’s detention in breach
of art 9(1) of the ICCPR.

‘Human rights’ relevant to
these complaints

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 allegations in this matter raise questions about whether acts or
practices of the Commonwealth are inconsistent with the rights of
Mr El Masri under the ICCPR. The articles that are of particular
relevance to the complaint are:
- Art 9(1) (prohibition on arbitrary detention);
- Art 10(1) (humane treatment of people deprived of their liberty);
- Art 7 (prohibition on cruel, inhumane and degrading treatment);
- Art 17(1) (prohibition against arbitrary interference with family) and art
  23 (protection of family).

(a) Article 9(1) of the
ICCPR

Mr El Masri’s allegation that his detention was unlawful
raises for consideration art 9(1) of the ICCPR, which provides:

Everyone has the right of 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 procedures as are
established by law.
The right to liberty in art 9(1) guarantees that ‘no one shall be
subjected to arbitrary arrest or detention’. Detention includes
immigration detention.¹⁷
The requirement that detention not be ‘arbitrary’ is separate
and distinct from the requirement that a detention be lawful. In Van Alphen v
The Netherlands,¹⁸ the United Nations Human Rights Committee
(UNHRC) said:

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

[T]he 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
In MIMIA v Al Masri,²² the Full Federal Court stated that
art 9(1):

.... requires that arbitrariness is not to be equated with
‘against the law’ but is to be interpreted more broadly, and so as
to include a right not to be detained in circumstances which, in the individual
case, are ‘unproportional’ or unjust.²³
This broad view of arbitrariness has also been stated in the case of Manga v Attorney-General,²⁴ where Hammond J concluded
that:

The essence of the position taken in the tribunals, the case
law, and the juristic commentaries is that under [the ICCPR] all unlawful
detentions are arbitrary; and lawful detentions may also be arbitrary, if they exhibit elements of inappropriateness, injustice, or
lack of predictability or proportionality (emphasis added)....

It has also been convincingly demonstrated that the reason for the use of
the word ‘arbitrary’ in the drafting of the international covenant
was to ensure that both ‘illegal’ and ‘unjust’ acts are
caught. The (failed) attempts to delete the word ‘arbitrary’ in
the evolution of art 9(1), and replace it with the word ‘illegal’
are well documented (emphasis added).²⁵
In another New Zealand case dealing with arbitrary arrest and detention, Neilsen v Attorney-General,²⁶ it was held that:

An
arrest or detention is arbitrary if it is capricious, unreasoned, without
reasonable cause: if it is made without reference to an adequate determining
principle or without following proper procedures.²⁷
In the context of the European Convention on Human Rights, a broad view has
also been taken as to the scope of the term arbitrary. The European Court of
Human Rights has held that:

[I]t is a fundamental principle that no
detention which is arbitrary can be compatible with [art] 5(1) and the notion of
‘arbitrariness’ in [art] 5(1) extends beyond lack of conformity with
national law, so that a deprivation of liberty may be lawful in terms of
domestic law but still arbitrary and thus contrary to the
Convention.²⁸
The Court further held that ‘one general principle established in the
case law is that detention will be ‘arbitrary’ where, despite
complying with the letter of national law, there has been an element of bad
faith or deception on the part of the authorities’.²⁹
A person’s detention that is initially not unlawful or arbitrary may
come to breach art 9(1) by reason of subsequent events which change the nature
of the detention. This may occur where a person’s detention is prolonged
in circumstances which are inappropriate, unjust, or lack predictability or
proportionality.
Determining if prolonged detention has become arbitrary involves the
application of a ‘proportionality test’.³⁰ Detention may
become arbitrary in circumstances where the limitation imposed upon a
person’s right to freedom is no longer demonstrably necessary and
proportionate to the pursuit of legitimate aims.³¹
Even a short period of detention may be considered arbitrary. For example,
in Spakmo v Norway,³² 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).

(b) Article 10(1) of the ICCPR

The allegations regarding Mr El Masri’s detention and
medical treatment in the MSU, as well as the allegations concerning restrictions
placed on Mr El Masri’s contact with his family, raise potential
breaches of art 10(1) of the ICCPR, which provides:

All persons
deprived of their liberty shall be treated with humanity and with respect for
the inherent dignity of the person.
Article 10(1) of the ICCPR requires States to treat all persons deprived of
their liberty ‘with humanity and respect for the inherent dignity of the
human person’.³³ This requirement is generally applicable to
persons deprived of their liberty – including in immigration
detention.³⁴
Article 10(1) imposes a positive obligation on State parties to take actions
to prevent inhumane treatment of detained persons.³⁵ However, a
complainant must demonstrate that he or she has suffered more than just the
condition of detention to substantiate a breach of the right to be treated
humanely in detention under art 10(1) of the ICCPR.³⁶
In particular, the alleged breach of art 10(1) must impact on one or more
human needs other than liberty or freedom.³⁷ For example, failing to
respect the rights and interests of detainees to maintain family
connections,³⁸ know one’s own personal
information,³⁹ hunger,⁴⁰ company, light, sanitation and
bedding⁴¹ as well as personal space.⁴²
In the Commission’s 2009 Report into complaints by immigration
detainees, the Commission expressed the view that arranging for Chinese
officials to interview asylum seekers without explaining the purpose of the
interview, causing fear and distress, was a violation of art 10 of the
ICCPR.⁴³
In this report, the Commission expressed the view that ultimately, whether
there has been a breach of art 10(1) 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.⁴⁴
In determining this question regard should be had to the jurisprudence of
the UNHRC; the Standard Minimum Rules for the Treatment of Prisoners (the
Standard Minimum Rules);⁴⁵ and the Body of Principles for the
Protection of all Persons under Any Form of Detention (the Body of
Principles).⁴⁶
The UNHRC has indicated that compliance with the Standard Minimum Rules and
the Body of Principles is the minimum requirement for compliance with the
obligation imposed under art 10(1) that people in detention be treated
humanely.⁴⁷

(i) Standards of medical care

Art 10(1) places a positive obligation on Australia to provide a certain
level of basic services, including medical care.
The content of this obligation is informed by principle 24 of the Body of
Principles, which states:

A proper medical examination shall be
offered to a detained or imprisoned person as promptly as possible after his
admission to the place of detention or imprisonment, and thereafter medical care
and treatment shall be provided whenever necessary. This care and treatment
shall be provided free of charge.
The Standard Minimum Rules state:
22. (1) At every institution
there shall be available the services of at least one qualified medical officer
who should have some knowledge of psychiatry. The medical services should be
organized in close relationship to the general health administration of the
community or nation. They shall include a psychiatric service for the diagnosis
and, in proper cases, the treatment of states of mental abnormality.

(2) Sick prisoners who require specialist treatment shall be transferred to
specialized institutions or to civil hospitals. Where hospital facilities are
provided in an institution, their equipment, furnishings and pharmaceutical
supplies shall be proper for the medical care and treatment of sick prisoners,
and there shall be a staff of suitable trained officers.

.....

24. The medical officer shall see and examine every prisoner as soon as
possible after his admission and thereafter as necessary, with a view
particularly to the discovery of physical or mental illness and the taking of
all necessary measures; the segregation of prisoners suspected of infectious or
contagious conditions; the noting of physical or mental defects which might
hamper rehabilitation; and the determination of the physical capacity of every
prisoner for work.

25. (1) The medical officer shall have the care of the physical and mental
health of the prisoners and should daily see all sick prisoners, all who
complain of illness, and any prisoner to whom his attention is specially
directed.

(2) The medical officer shall report to the director whenever he considers
that a prisoner’s physical or mental health has been or will be
injuriously affected by continued imprisonment or by any condition of
imprisonment.

26. (1) The medical officer shall regularly inspect and advise the director
upon:

(a) The quantity, quality, preparation and service of food;

(b) The hygiene and cleanliness of the institution and the prisoners;

(c) The sanitation, heating, lighting and ventilation of the institution;

(d) The suitability and cleanliness of the prisoners’ clothing and
bedding; and

(e) The observance of the rules concerning physical education and sports, in
cases where there are no technical personnel in charge of these activities.

(2) The director shall take into consideration the reports and advice that
the medical officer submits according to rules 25 (2) and 26 and, in case he
concurs with the recommendations made, shall take immediate steps to give effect
to those recommendations; if they are not within his competence or if he does
not concur with them, he shall immediately submit his own report and the advice
of the medical officer to higher authority.

The United Nations principles for the protection of persons with mental
illness and the improvement of mental health care make it clear that people
with mental illness should have the right to be treated and cared for, as far as
possible, in the community in which they live.⁴⁸
Standard Minimum Rule 82 specifically addresses the situation of mentally
ill persons who are held in detention. It provides:

B. INSANE AND
MENTALLY ABNORMAL PRISONERS

82. (1) Persons who are found to be insane shall not be detained in prisons
and arrangements shall be made to remove them to mental institutions as soon as
possible.

(2) Prisoners who suffer from other mental diseases or abnormalities shall be
observed and treated in specialized institutions under medical management.

(3) During their stay in a prison, such prisoners shall be placed under the
special supervision of a medical officer.

(4) The medical or psychiatric service of the penal institutions shall
provide for the psychiatric treatment of all other prisoners who are in need of
such treatment.

83. It is desirable that steps should be taken, by arrangement with the
appropriate agencies, to ensure, if necessary, the continuation of psychiatric
treatment after release and the provision of social-psychiatric after-care.

(ii) Interaction between article 7 and article 10(1)

The allegation concerning the use of force against
Mr El Masri by GSL officers on 8 August 2005 raises for
consideration the application of arts 7 (prohibition on cruel, inhuman and
degrading treatment) and 10(1) (requirement to treat detainees humanely) of the
ICCPR.
Art 7 of the ICCPR provides that ‘[n]o one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment’.
In the case of detained persons, there is an overlap between art 7 and 10(1)
in that inhuman or degrading treatment or punishment will also constitute a lack
of treatment with humanity and respect for the inherent dignity of the human
person. However, the UNHRC has said that 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.⁴⁹
In the case of C v Australia, a finding of ‘cruel, inhumane and
degrading treatment’ under art 7 of the ICCPR was made where an
immigration detainee’s prolonged arbitrary detention was reported as
contributing to his mental health problems, and the authorities were aware of
this but they delayed releasing the detainee from immigration
detention.⁵⁰
Standard Minimum Rule 54(1) describes the circumstances in which force may
be used against detainees as follows:

Officers of the institutions
shall not, in their relations with the prisoners, use force except in
self-defence or in cases of attempted escape, or active or passive physical
resistance to an order based on law or regulations. Officers who have recourse
to force must use no more than is strictly necessary and must report the
incident immediately to the director of the institution.

(iii) Minimum standards for communication with family and legal
counsel

Principle 15 of the Body of Principles provides:

Notwithstanding
the exceptions contained in principle 16, paragraph 4, and principle 18,
paragraph 3, communication of the detained or imprisoned person with the outside
world, and in particular his family or counsel, shall not be denied for more
than a matter of days.
Principle 18 of the Body of Principles sets out a detained person’s
right to communicate with his or her lawyer:

A detained or
imprisoned person shall be entitled to communicate and consult with his legal
counsel.

A detained or imprisoned person shall be allowed adequate time and facilities
for consultation with his legal counsel.

The right of a detained or imprisoned person to be visited by and to consult
and communicate, without delay or censorship and in full confidentiality, with
his legal counsel may not be suspended or restricted save in exceptional
circumstances, to be specified by law or lawful regulations, when it is
considered indispensable by a judicial or other authority in order to maintain
security and good order.
The wording of Principle 18 is strict. It provides that a detained person is
entitled to communicate with his legal counsel without delay. This right may not
be suspended or restricted except in extremely limited circumstances. Even then,
Principle 15 provides that access to a detainee’s legal counsel shall not
be denied for more than a matter of days.⁵¹
Principle 19 further provides that:

A detained or imprisoned
person shall have the right to be visited by and to correspond with, in
particular, members of his family and shall be given adequate opportunity to
communicate with the outside world, subject to reasonable conditions and
restrictions as specified by law or lawful regulations.

(c) Article 17(1) and 23(1) of the ICCPR

The complaints that Mr El Masri’s phone contact with his
family was restricted and his children were required to visit him in a cage
raise a potential breach of art 17(1) and art 23 of the ICCPR, as well as art
10(1). These articles provide:

Art 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.

Art 23(1)

The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.
Professor Manfred Nowak has noted that:

[T]he significance of
Art. 23(1) lies in the protected existence of the institution
“family”, whereas the right to non-interference with family life is
primarily guaranteed by Art. 17. However, this distinction is difficult to
maintain in practice.⁵²
For the reasons set out in Nguyen and Okoye,⁵³ I consider that in cases alleging a State’s arbitrary interference
with a person’s family, it is appropriate to assess the alleged breach
under art 17(1). If an act is assessed as breaching the right not to subjected
to an arbitrary interference with a person’s family, it will usually
follow that that breach is in addition to (or in conjunction with) a breach of
art 23(1).
In its General Comment on art 17(1), the UNHRC confirmed that a lawful
interference with a person’s family may nevertheless be arbitrary, unless
it is in accordance with the provisions, aims and objectives of the Covenant and
is reasonable in the particular circumstances.⁵⁴
It follows that the prohibition against arbitrary interferences with family
incorporates notions of reasonableness.⁵⁵ In relation to the meaning
of ‘reasonableness’, the UNHRC stated in Toonan v
Australia:⁵⁶

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.⁵⁷

The relevant issue is whether there was an arbitrary interference with
Mr El Masri’s family life. There is no clear guidance in the
jurisprudence of the UNHRC as to whether a particular threshold is required in
establishing that an act or practice constitutes an ‘interference’
with a person’s family.
In Estrella v Uruguay,⁵⁸ the UNHRC found that art
17(1) encompasses a general right of prisoners to receive regular visits by
family members.⁵⁹

Forming my opinion

In forming an opinion as to whether any act or practice was inconsistent
with or contrary to any human right I have been guided by the well-known
statement of Dixon J in Briginshaw v Briginshaw,⁶⁰ as
explained by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty
Ltd.⁶¹
I have had regard to the seriousness of each allegation made, the
inherent unlikelihood of an occurrence of the kind alleged and the gravity of
the consequences that would flow from any particular finding.
I have taken particular care to assess the whole of the evidence before
reaching a final determination of the issues in dispute in this matter.
I note I have carefully considered the further evidence and
submissions received from the parties in response to my tentative view.

Part E: Mr El Masri’s detention from
14 November 2002 to 14 October 2005

Complaint

The Complainant alleges that her husband’s detention from
14 November 2002 to 14 October 2005 was unlawful.
I consider that the submissions of the Complainant involve two distinct
arguments:

(a) First, the Complainant argues that
Mr El Masri has always held a valid absorbed person visa
and that his visa should never have been cancelled under s 501; and

(b) Secondly, the Complainant contends that, after the decision of the Full
Federal Court in Nystrom,⁶² the Department should have
immediately released Mr El Masri.
I have considered whether all or parts of Mr El Masri’s
detention are inconsistent with the right not be arbitrarily detained (art 9(1)
of the ICCPR).
As I have explained, this involves considering whether
Mr El Masri’s detention was lawful and whether it was arbitrary.

Chronology of Mr El Masri’s
detention

I have set out a chronology of the dates Mr El Masri was
detained and released from detention and the dates of Court decisions that the
Complainant has raised in seeking to argue that all, or alternatively, part, of
Mr El Masri’s detention was unlawful.

Date	Event
25 August 2002	Mr El Masri’s transitional (permanent) visa was cancelled on character grounds under s 501 (2) of the Migration Act.
14 November 2002	Mr El Masri was taken into immigration detention pursuant to s 189(1) of the Migration Act.
19 August 2003	An application by Mr El Masri for judicial review of the decision to cancel his visa under s 501(2) was unsuccessful.⁶³
1 July 2005	The Full Federal Court handed down its decision in Nystrom. The Court held that the Minister’s decision to cancel Mr Nystrom’s transitional (permanent) visa on character grounds pursuant to s 501 of the Migration Act was affected by jurisdictional error, due to the Minister’s failure to take into consideration the fact that Mr Nystrom also held an absorbed person visa. Alternatively, if Mr Nystrom held only an absorbed person visa and not a transitional (permanent) visa, as Mr Nystrom contended, the Minister had cancelled a non-existent visa, which was not a valid exercise of power.
29 July 2005	Mr El Masri was placed in the MSU at VIDC.
29 August 2005	The Department states this was the latest date by which Mr El Masri was identified as Nystrom-affected.
30 August 2005	A senior officer of the Department, who was examining whether Mr El Masri was Nystrom-affected, observed that the question was ‘legally tricky’.
16 September 2005	On 16 September 2005 the officer furnished preliminary advice that on balance it was open for the view to be taken that Mr El Masri was not an absorbed person as at the critical date of 2 April 1984 and did not have an absorbed person visa. The advice is titled ‘PRELIMINARY ADVICE Р NOT FINAL Р NOT YET SECOND COUNSELLED’. The advice appears to have been written without seeking submissions or information from Mr El Masri or his legal representative.
22 September 2005	Michaela Byers visited Mr El Masri in detention and took instructions to act as his legal representative.
28 September 2005	Ms Byers wrote to the Department seeking the release of Mr El Masri.
29 September 2009	A solicitor from Australian Government Solicitors sent an email to Ms Byers stating that the solicitor was currently seeking instructions in relation to the matters raised by Ms Byers.
4 October 2005	Ms Byers sent a letter to the Director of Detention Case coordination. It states: I respectfully submit that Mr El Masri is the holder of an absorbed person visa in accordance with section 34 of the Migration Act. He entered Australia on 21 September 1976 and was absorbed into Australian community by 2 April 1984 and ceased to be an immigrant. I also rely on the Federal Court decision in the matter of Nystrom that was delivered on 1 July 2005. Ms Byers also sent an email to the Department’s legal representative advising she had filed an application in the Federal Court and would be making an application for injunction for release ‘this week’.
14 October 2005	The Department received a letter from Ms Byers. The officer who previously considered whether Mr El Masri was Nystrom-affected wrote an email that asked for the following written advice to be provided to Mr El Masri: Having regards to the information now available, including the letter of today, the 14 October 2005, from your legal representative Ms Michaela Byers, we are releasing you from immigration detention on the basis that you may hold an absorbed person visa by operation of section 34 of the Migration Act 1958 and may also hold a transitional (permanent) visa. We have identified your case as one which is similar to the case which was the subject of the decision of the Full Federal Court in Nystrom v Minister for Immigration and Multicultural Affairs [2005] FCAFC. According to that decision, if you held an absorbed person visa (as well as a transitional (permanent) visa), that visa needed to be identified and considered by the Minister in making the decision to cancel your transitional (permanent) visa under section 501 of the Migration Act 1958. This was not done in your case. Mr El Masri was released from immigration detention.
24 November 2005	The Federal Court (Justice Allsop) quashed the Minister’s decision to cancel Mr El Masri’s transitional (permanent) visa. The Court reinstated Mr El Masri’s transitional (permanent) visa.
8 November 2006	The High Court upheld an appeal against the decision of the Full Federal Court in Nystrom.⁶⁴The High Court held that: (1) Mr Nystrom held two visas simultaneously; (2) by operation of s 501F of the Migration Act, the Minister’s cancellation of Mr Nystrom’s transitional (permanent) visa automatically cancelled his absorbed person visa as well; and (3) there were no material considerations which the Minister should have taken into account in cancelling Mr Nystrom’s absorbed person visa compared with his transitional (permanent) visa.
28 November 2006	Mr El Masri was detained in VIDC. The duration of his detention from the time of his arrest at 5:50 am to his release at 1:00 pm on the same day was approximately 7 hours.
17 July 2008	The Full Federal Court in Sales v Minister for Immigration and Citizenship (Sales)⁶⁵ found that s 501(2) of the Migration Act does not authorize the cancellation of a visa that is simply ‘held’ by a person. It only permits cancellation of a visa that had been ‘granted’ or deemed by express statutory provision to ‘have been granted’ to a person. Therefore, a transitional (permanent) visa that is simply ‘held’ by virtue of the Migration Reform (Transitional Provisions) Regulations of 1994 is neither granted, nor deemed to be granted, and thus cannot be cancelled under s 501(2).

Relevant statutory provisions in the Migration Act

(a) The power to cancel Mr El Masri’s visa

Mr El Masri’s transitional (permanent) visa was cancelled on
25 August 2002, pursuant to s 501(2) of the Migration Act. This section provides
that the Minister may cancel a person’s visa if the Minister reasonably
suspects that the person does not pass the character test and if the person does
not satisfy the Minister that they pass the character test. Section 501G(1) and
(2) provide that a person must be provided with notice of the cancellation of
their visa under s 501 of the Migration Act.⁶⁶
On 19 August 2003, Mr El Masri’s application for judicial
review of the decision to cancel his visa under s 501(2) was
dismissed.⁶⁷

(b) The power to detain Mr El Masri

A person whose visa has been cancelled under s 501 becomes an unlawful
non-citizen and is then subject to mandatory detention under s 189 and removal
from Australia under s 198 of the Migration Act.
Section 189(1) of the Migration Act provides that ‘if an officer knows
or reasonably suspects that a person in the migration zone is an unlawful
non-citizen, the officer must detain the person’.⁶⁸
Section 196 of the Migration Act provides:

(1) An unlawful
non-citizen detained under section 189 must be kept in immigration
detention until he or she is:

(a) removed from Australia under section 198 or 199; or

(b) deported under section 200; or

(c) granted a visa.

(2) To avoid doubt, subsection (1) does not prevent the release from
immigration detention of a citizen or a lawful non-citizen.

(3) To avoid doubt, subsection (1) prevents the release, even by a
court, of an unlawful non-citizen from detention (otherwise than for removal or
deportation) unless the non-citizen has been granted a visa.

(4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained
as a result of the cancellation of his or her visa under section 501, the
detention is to continue unless a court finally determines that the detention is
unlawful, or that the person detained is not an unlawful non-citizen.

(4A) Subject to paragraphs (1)(a), (b) and (c), if the person is
detained pending his or her deportation under section 200, the detention is
to continue unless a court finally determines that the detention is unlawful.

(5) To avoid doubt, subsection (4) or (4A) applies:

(a) whether or not there is a real likelihood of the person detained being
removed from Australia under section 198 or 199, or deported under
section 200, in the reasonably foreseeable future; and

(b) whether or not a visa decision relating to the person detained is, or may
be, unlawful.

(5A) Subsections (4) and (4A) do not affect by implication the
continuation of the detention of a person to whom those subsections do not
apply.

(6) This section has effect despite any other law.

(7) In this section:

“visa decision” means a decision relating to a visa
(including a decision not to grant the visa, to cancel the visa or not to
reinstate the visa).

(c) Goldie v Commonwealth

In Goldie v Commonwealth of Australia & Ors,⁶⁹ the
Full Federal Court placed a strict onus on an official detaining a person
pursuant to s 189(1) of the Migration Act to justify his or her suspicion as
reasonable. In this case, an officer, Mr Cain, formed the view that Mr Goldie
should be detained under s 189(1) on the basis that computer records showed
that the last visa issued to Mr Goldie had ceased. The officer did not make any
further searches to verify this view and the computer records were
incorrect.
In determining what is meant by ‘reasonable suspicion’, Gray and
Lee JJ stated:

The definitions of the words “suspect”
and “suspicion” in the Macquarie Dictionary make it plain that a
suspicion may be formed “with insufficient proof or with no proof”,
or “on little or no evidence”, or “on slight evidence or
without evidence”. By itself, the word “suspects” would be
capable of being construed to include the formation of an imagined belief,
having no basis at all in fact, or even conjecture. Plainly, to empower an
arrest on the basis of an irrational suspicion would offend the principle of the
importance of individual liberty underlying the common law. It would also allow
the possibility of arbitrary arrest, with the consequence that Australia would
be in breach of its international obligations pursuant to [a] rt 9 of the
International Covenant on Civil and Political Rights 1966 [adopted in] New York
on 19 December 1966. To avoid these consequences, the word
“reasonably” has been placed before the word “suspects”
in s 189(1). The adverb makes it clear that, in order to justify arrest and
detention, the suspicion that a person is an unlawful non-citizen must be
justifiable upon objective examination of relevant material. Given that
deprivation of liberty is at stake, such material will include that which is
discoverable by efforts of search and inquiry that are reasonable in the
circumstances.⁷⁰
Therefore, according to Gray and Lee JJ, ‘an officer, in forming a
reasonable suspicion, is obliged to make due inquiry to obtain material likely
to be relevant to the formation of that suspicion’.⁷¹ In this
case, the evidence revealed that there was ‘an absence of a sufficient
search or inquiry to make the formation of the suspicion justifiable on
objective examination’. The computer records were ‘plainly, not up
to date’ and Mr Cain only conducted ‘a partial search of the
relevant record’.⁷² Mr Cain did not conduct a search of visas
granted after Mr Goldie entered the country. Further, at the time Mr Cain made
his decision, he had in his possession other documents that showed

Mr Goldie
held a valid visa.⁷³
Gray and Lee JJ concluded that, having regard to all the circumstances,

Mr Cain’s suspicion that Mr Goldie was an unlawful non-citizen was not
reasonable. Their Honours said:

It is unnecessary to speculate
but perhaps, if the only facts known to

Mr Cain at the time had been
those contained in the computer record, it may have been that his suspicion
would have been reasonable. However, Mr Cain had other facts before
him. He chose to prefer to base his state of mind on the computer record, the
information in which was incomplete and older, than the other materials
available to him. He chose to disregard the other facts and rely on the
information obtained from a partial search of the record. In choosing to form a
suspicion on the basis of a computer record two years old, without making
inquiries or checking more recent records, Mr Cain did not act reasonably
(emphasis added).⁷⁴
The Court held that Mr Goldie’s arrest ‘was precipitate and not
justified by section 189(1) of the Migration Act’.⁷⁵ His
detention was unlawful and he had a right to damages from the
Commonwealth.⁷⁶

(d) Ruddock v Taylor

In Ruddock v Taylor,⁷⁷ the High Court considered whether
immigration officers could lawfully detain a person under s 189 of the Migration
Act, even though the decision to cancel that person’s visa was later found
to be legally invalid.
In this case, British-born Mr Taylor was twice placed in immigration
detention following two separate decisions by the Minister to cancel his visa on
character grounds, pursuant to s 501 of the Migration Act. Both these decisions
were subsequently quashed by the courts.
Mr Taylor successfully brought an action in the District Court of NSW
claiming damages for false imprisonment. After this decision was upheld on
appeal to the Court of Appeal of NSW, the Commonwealth appealed to the High
Court.
The majority of the High Court held that, provided an officer had the
requisite knowledge or reasonable suspicion that a person was an unlawful
non-citizen, detention was required by s 189 of the Migration Act. The High
Court stated:

What constitutes reasonable grounds for suspecting a
person to be unlawful non-citizen must be judged against what was known or
reasonably capable of being known at the relevant time.⁷⁸
A belief or suspicion was capable of being reasonable even though founded on
a mistake of law. The majority stated:

[Section] 189 may apply in
cases where the person detained proves, on later examination, not to have been
an unlawful non-citizen. So long as the officer had the requisite state of mind,
knowledge or reasonable suspicion that the person was an unlawful non-citizen,
the detention of the person concerned is required by s 189. And if the
Minister brought about a state of affairs where an officer knew or reasonably
suspected that a person was an unlawful non-citizen by steps which were beyond
the lawful exercise of power by the Minister, it does not automatically follow
that the resulting detention is unlawful. Rather, separate consideration must be
given to the application of s 189 – separate, that is, from
consideration of the lawfulness of the Minister’s exercise of
power.⁷⁹
The lawfulness of Mr Taylor’s detention therefore turned on whether
the exercise of power under s 189 was lawful. The High Court said this question
must be given separate consideration from that of whether the exercise of power
by the Minister to cancel the visa under s 501 was lawful. Demonstrating
that a person is not an unlawful non-citizen does not necessarily make detention
pursuant to s 189(1) unlawful.⁸⁰
On the basis of this reasoning, the majority of the High Court found that

Mr Taylor’s detention was lawful and required by the Migration Act.
The majority noted:

[N]othing was said to have occurred during
either period of detention that would affect the conclusions that, until an
order was made quashing the relevant decision to cancel the respondent’s
visa, those who detained the respondent reasonably suspected that he was an
unlawful non-citizen, and that accordingly, his detention was lawful and
required by the Act.⁸¹

(e) Coleman v Minister for Immigration & Citizenship

In Coleman v Minister for Immigration & Citizenship,⁸² the Minister cancelled Mr Coleman’s visa on character grounds. Mr Coleman
was subsequently detained as an unlawful non-citizen.
It was contended on behalf of Mr Coleman that the effect of the High
Court’s decision in Re Patterson⁸³ was that s 501
of the Migration Act could not apply to him as he was a British subject.
The argument put forward on behalf of Mr Coleman was that until the
subsequent High Court decision in Shaw v Minister for Immigration &
Multicultural Affairs (Shaw)⁸⁴ his detention was
unlawful.
In dismissing this application as having no reasonable prospects of success,
Edmonds J accepted the following distinction between ‘knowing’ a
person was an unlawful non-citizen and ‘reasonably suspecting’ a
person was an unlawful non-citizen:

(a) where the officer believes
the person to be an unlawful non-citizen and is ultimately correct in that
belief – [the officer] ‘knows’; and

(b) where the officer believes the person to be an unlawful non-citizen,
ultimately is not correct about that but had reasonably [sic] grounds for the
belief – [the officer] ‘reasonably suspects’.⁸⁵
Edmonds J noted that the judgment in Shaw had put it beyond argument
that Mr Coleman was at all material times an alien and, not having a valid visa,
was therefore an unlawful non-citizen (under s 14 of the Migration Act).
His Honour concluded:

The short answer to the applicant’s
case is that the officer was correct in forming the view that the deceased was
an unlawful non-citizen – the officer relevantly “knew” him to
be such. In these circumstances, the detention was authorised under s 189 of the
Act and the applicant’s present application must fail.⁸⁶
His Honour added that there were a number of hurdles in the way of raising
unlawful detention to a level of being a cause of action with reasonable
prospect of success:

[T]he idea that Mr Coleman’s detention
was unlawful from 10 March 2003 until the High Court handed down its decision in
Shaw on 9 December when the applicant effectively conceded that it thereupon
became lawful, flies in the face of the principle of the retrospective operation
of judicial lawmaking, so that even if Re Patterson changed the law, Shaw
changed it back with retrospective operation. As Sackville J, with whom Foster
and Lehane JJ agreed in Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581,
observed at 594:

In the absence of a doctrine of prospective overruling, changes in the law
offered by judicial decisions are not confined to events or transactions
occurring after the date of the decision changing the law. Doubtless from a
historical perspective, this owes a good deal to the declaratory theory of the
law...⁸⁷
With respect, this aspect of the reasoning in Coleman appears to be
inconsistent with that of the High Court in Ruddock v Taylor. In Ruddock v Taylor, the High Court held that it was necessary to consider
‘what was known or reasonably capable of being known at the relevant
time’. Section 189 of the Migration Act operates by reference to the state
of mind of the relevant officer as to the person’s migration status,
irrespective of the person’s migration status in law. The latter may
change as a result of subsequent judicial determination. The former, in my view,
does not.
In other words, an officer’s actual state of mind cannot be altered by
the subsequent declaration of a court as to the state of the law. What is
relevant is the state of the law as was known (or should reasonably have been
known) to an officer acting under the Migration Act. An officer cannot
‘know’ what is yet to be decided by a court. Nor can they, in my
view, ‘reasonably suspect’ that which is contrary to the state of
the law as it stands.

(f) Reviewing the basis for
detention

While s 189 is expressed in mandatory terms, it does not prevent
departmental officers from reviewing the ‘reasonable suspicion’ upon
which the person’s detention is based.
In particular, when new information is acquired or the state of the law
changes following a decision by a court, it may be necessary for the Department
to take action to check that the suspicion a person is an unlawful non-citizen
can still be reasonably held.
The continuing obligation to review the continuing validity of a
person’s immigration detention is now reflected in Migration Series
Instruction (MSI) 411: Establishing Immigration status – in the field and
in detention. This MSI was registered in December 2005.
The MSIs give officers ‘an understanding of the legal requirements and
policy guidelines that apply when deciding whether a person must or may be
detained, or kept in detention, under the Migration Act’.⁸⁸
The MSIs explain that although the power to detain under s 189 is
‘mandatory in nature, its exercise depends wholly upon whether an officer
knows or reasonably suspects that a person is a non-citizen’.⁸⁹ They further state:

[T]he requirement to detain a person only comes
into play once an officer has formed one of the following states of mind:
knowledge that the person is an unlawful non-citizen or reasonable suspicion
that the person is an unlawful non-citizen. Similarly, the continued detention
of a person will only be lawful if an officer continues to either know or
reasonably suspect that the person is a non-citizen.⁹⁰
The MSIs also state that the ‘the exercise of power under section 189
involves not only taking a person into immigration detention but also keeping a
person in immigration detention’. According to the
MSIs:

[There is] an ongoing obligation to continue to reassess the
lawfulness of the detention where a person has been detained under section 189
based on a reasonable suspicion that they were a non-citizen... if an officer
goes from reasonably suspecting that a detainee is an unlawful non-citizen to no
longer reasonably suspecting it, then the person must be released from
immigration detention immediately.⁹¹
The MSIs are not legally enforceable and they were not registered in
September 2005. However, they confirm that it was within the power of officers
to take such actions to resolve questions that arose about a person’s
immigration status and to review detention cases to ensure that the reasonable
suspicion that a person was an unlawful non-citizen remained valid.

The initial decision to detain Mr El Masri on
14 November 2002

I accept the Department’s submissions that the decision of the
Minister to cancel Mr El Masri’s visa under s 501 created a
reasonable suspicion that Mr El Masri was an unlawful
non-citizen. The relevant departmental officer was obliged to detain
Mr El Masri under s 189 of the Migration Act.
I do not accept the Complainant’s argument that by reason of the
decision of the Full Federal Court in Nystrom and the subsequent decision
of the Full Federal Court in Sales,⁹² the entire period of
Mr El Masri’s detention was unlawful because his visa was not
validly cancelled.
The question of whether the act of detaining Mr El Masri was
lawful depends on whether the immigration officer knew or reasonably suspected
that Mr El Masri was an unlawful non-citizen on 14 November 2002.
The lawfulness of the exercise of power under s 189 has to be determined by
reference to what was known or reasonably capable of being known at the relevant
time.
The Complainant submitted that a reasonable compliance officer would have
known that s 501 visa cancellation decisions had been quashed by the courts and
therefore, that there was an obligation to review regularly
Mr El Masri’s detention after 14 November 2002 to ensure that
the ‘reasonable suspicion continued to be valid’.⁹³
The Complainant also claimed that the Department became aware that Lebanon
refused to accept Mr El Masri on 30 December 2004. The
Complainant argued that ‘at this point in time deportation became
impossible and [the Department] should have reviewed
Mr El Masri’s file and discovered he was an absorbed person and
made arrangements for alternative detention’.⁹⁴
The Department has not responded to the claim that there was no reasonable
prospect of removing Mr El Masri to Lebanon. However, even if
there had been no reasonable prospect of removing Mr El Masri to
Lebanon, the discovery of the fact would not have led to the loss of the
reasonable suspicion that Mr El Masri was an unlawful
non-citizen. This is because s 189 can operate to oblige an immigration officer
to detain a person even if there is no reasonable prospect of that detention
ending in the foreseeable future.
Therefore, prior to the decision of the Full Federal Court in Nystrom there would not appear to be an intervening event that, in the event of a
review of the continuing validity of Mr El Masri’s detention,
would have been likely to lead to the conclusion that the reasonable suspicion
that Mr El Masri was an unlawful non-citizen could not be
maintained.
I conclude that the initial detention of Mr El Masri on
14 November 2002 was required by s 189 of the Migration Act. It therefore does
not constitute a discretionary act or practice of the Department and falls
beyond the scope of my power to inquire under s 11(1)(f) of the HREOC Act.
I further find that that Mr El Masri’s continued
detention until 1 July 2005 did not breach his human rights. Prior to the
decision of the Full Federal Court in Nystrom there was no material
change in Mr El Masri’s circumstances that would have altered
the reasonable suspicion that he was an unlawful non-citizen.

The
ongoing detention of Mr El Masri after the decision in
Nystrom

On 1 July 2005, the Full Federal Court in Nystrom held that the
decision of the Minister for Immigration to cancel Mr Nystrom’s
transitional (permanent) visa on character grounds, pursuant to s 501 of the
Migration Act, was not validly made.⁹⁵ The Court held that the
Minister committed a jurisdictional error by failing to take into consideration
the fact that Mr Nystrom also held an absorbed person visa.
Mr El Masri was ultimately released from immigration
detention 105 days (3 months and 13 days) after the decision in Nystrom on the basis that he too held an absorbed person visa.
The Department states that following the decision of the Full Federal Court:

[A] number of detainees were identified by the [D]epartment as
likely to be holding an absorbed person visa (of whom
Mr El Masri was one) and they were released from detention (as
the reasonable suspicion required under s 189 had been lost).
Mr El Masri was released from detention on 14 October
2005.⁹⁶
The Department submits that the question of whether
Mr El Masri had an absorbed person visa is ‘an
inherently complex question of fact and law’.⁹⁷

(a) Determining whether Mr El Masri held an absorbed person
visa

An absorbed person visa is a visa that enables the holder to remain in, but
not to re-enter, Australia. Section 34 of the Migration Act provides that an
absorbed person is deemed to have been granted to a person on and from 1
September 1994 if the conditions set out in s 34(2) are satisfied. These
conditions are:

(a) That the person was in Australia before 2 April
1984;

(b) Before 2 April 1984, the person ceased to be an immigrant

as a result
of the doctrine of absorption;

(c) The person had not left Australia between 2 April 1984 and
1 September 1994; and

(d) Immediately before 1 September 1994, the person was not

subject to s
20 of the Act as then in force.
The Department states:

The absorbed person visa is provided for
by s 34 of the [Migration] Act, which itself contains the criteria. Unlike most
other visas, an absorbed person visa is not obtained as a result of a process of
administrative decision-making. Nor is there any instrument or other physical
document that proves that a person has an absorbed person visa – unless
the person has obtained declaratory or similar relief from a Court determining
that he/she has such a visa. Thus, whether a person has such a visa can not be
answered by checking the files or database to see whether an administrative
decision to grant has been made. Certainly, in this case, whether
Mr El Masri has a visa could not be ascertained simply by
checking the file.⁹⁸
The Department continues:

Given the nature of the criteria, it
is simply not possible to specify a number of hours – or even months
– within which it will always be possible to determine whether a person is
deemed by s 34 of the Act to have an absorbed person visa. The question of how
much time will be reasonable or necessary to complete that task ought to be seen
as one to be addressed on a case by case basis. The difficulty of assessing how
much time will be required is also compounded by the fact that important
evidence will often be uniquely within the knowledge or access of the individual
non-citizen, or other person known to the non-citizen but not the Department.
The complex question of whether the individual moved beyond the immigration
prior to 2 April 1984 by being absorbed into the Australian community is
self-evidently one where relevant evidence will not always be ‘on
file’ or readily available without inquiry from the non-citizen or others.
Also, at least as a matter of administrative good practice, time may be
necessary to give the non-citizen a reasonable opportunity to collect evidence,
to put his/her case and to answer concerns that may exist. In some cases,
application to a Court may also eventuate, or at least need to be
considered.⁹⁹
The Department states that while in Nystrom it was conceded the
applicant held an absorbed person visa, in Mr El Masri’s case
‘there is no evidence of any such view being formed when
Mr El Masri was taken into detention until it was decided to
release him from immigration detention on 14 October 2005’.¹⁰⁰

(b) Steps taken by the Department to reassess the reasonableness
of the suspicion Mr El Masri was an unlawful non-citizen

There is no evidence before me about what steps, if any, the Department took
in the days immediately following the publication of the decision in Nystrom on 1 July 2005 to identify Nystrom-affected
detainees.
It is, however, clear that the Department did recognise that it was
necessary to conduct such a review to reassess the lawfulness of continuing to
detain people who may have been affected by the decision in Nystrom.
Submissions on behalf of the Department state:

We are instructed
that early electronic searches by the Department identified 430 individuals who
may possibly have been affected by the decision in Nystrom. We are further
instructed that the average time to recover possible affected persons’
files was 3 to 4 days. This time is an average only and can be significantly
lengthened depending upon how many files were recorded and located. It is
observed that many older files may have been destroyed in accordance with normal
Commonwealth archival procedures.¹⁰¹

The Department also states that ‘upon the delivery of the Full Court
decision advice was sought and analysis undertaken by the Department as to the
ramifications and implications of the decision. These considerations included
the impact the decision would have upon the pending s 501 cases and previous s
501 cancellation decisions’.¹⁰²
The Department has not submitted evidence about what date it began
identifying individuals in immigration detention who may have been affected by
the decision in Nystrom.
The Department states that it began considering if
Mr El Masri held an absorbed person visa no later than 29 August
2005.
The Department states that:

In Nystrom itself, it was
conceded that the applicant held an absorbed person visa. In the present case,
there is no evidence of any such view having been formed when
Mr El Masri was taken into detention until it was decided to
release him from immigration detention on 14 October 2005. In fact, on
30 August 2005, a senior officer of the department, who was then examining
whether Mr El Masri held an absorbed person visa (at the request
of another officer who approach him no later than 29 August 2005) observed that
the question was uncertain and ‘legally tricky’. He was not
confident that he would be able to say, even in the future ‘with any
certainty ... whether Mr El Masri held an absorbed person
(visa)’.¹⁰³
The Department has provided a copy of the email from the departmental
officer dated 30 August 2005. The subject of the email is ‘Possible Nystrom-affected cases: status of Mr El Masri’. In the email the
officer states:

[A]s discussed I’m still looking at the El
Masri case. It is not a case where I am able to say with any certainty
at this early stage – and perhaps not even in the future – whether
Mr E held an absorbed person. As you know, absorption is a creation of the High
Court and involves a lot of subjective judgment. I will continue with my
consideration of the case and provide my more considered views on it as soon as
I can...¹⁰⁴
The officer goes on to state that ‘[i]n such legally tricky cases it
may be appropriate that an external opinion be sought so that the Department is
acting on the basis of an arms length legal opinion – Senior Counsel AGS
may be suitable. Especially as I understand that there may be other similar
cases to this in the pipeline’.¹⁰⁵
The resolution of the question of whether Mr El Masri had an
absorbed person clearly had profound consequences for
Mr El Masri’s liberty, as he was being detained in MSU at that
time. However, there is no evidence that the question was addressed with urgency
or with the thoroughness that it deserved.
On the 16 September 2005, over two weeks after
Mr El Masri was identified as a person who may be Nystrom affected, the same departmental officer provided further preliminary advice that
Mr El Masri was not an unlawful non-citizen. The email is titled
‘PRELIMINARY ADVICE – NOT FINAL – NOT YET SECOND
COUNSELLED’. It states, in part:

This case illustrates the
difficulties that can arise in making a determination whether in a particular
case, the ‘immigrant’ can be said to have ceased to be an immigrant
because of being absorbed into the Australia [sic] community. Such a
determination requires the balancing of a number of factors in assessing whether
the Australian community at the relevant time would have regarded that person as
fully integrated into that community. In any court proceeding where that issue
arose, it would be open to the judge to make that determination.

On balance I think it is open for the view can [sic] be taken that
Mr A S ElMasri probably never ‘ceased to be an
immigrant’ before the critical date of 2 April 1984 and therefore is
not deemed to have held an absorbed person visa by operation of s 34 of the
Migration Act 1958.¹⁰⁶
There is no evidence before the Commission that any efforts were made to
confirm this preliminary advice, or to seek advice from Australian Government
Solicitor as previously suggested as being appropriate.
I also find that the officer provided this advice without seeking
information or submissions from Mr El Masri or his legal
representative that may have assisted in resolving the question of whether
Mr El Masri was an absorbed person. This is despite the fact that
the Department has submitted that ‘as a matter of good administrative
practice, time may be necessary to give [a] non-citizen a reasonable opportunity
to collect evidence, to put his/her cases and to answer concerns that may
exist’ on the complex question of whether an individual is an
‘absorbed person’.¹⁰⁷
The Complainant’s legal representative initiated contact with the
Department on 28 September 2005, when she sent an email to the Director of
Detention Services. This email stated that Mr El Masri should be
released from immigration detention because, ‘like Nystrom, Mr El Masri holds an absorbed person visa as he
entered Australia on 21 September 1976 and has not departed Australia
since’.
Ms Byers proceeded to file an application in the Federal Court seeking
Mr El Masri’s release and on 4 October 2005 she sent an email to
the Department stating these proceedings had been commenced and that her client
would seek an injunction to be released from detention.
The Department states that:

...upon receipt of Ms Byers email
[of 28 September 2005, the Department] again reviewed
Mr El Masri’s circumstances and indeed sought further
information and assistance in respect of Mr El Masri’s family so
as to inform the consideration of the absorption question. That review was
finalised on 14 October 2005 and he was released on the same day.
The departmental officer asked for the following written advice to be
provided to Mr El Masri:

Having regards to the information
now available, including the letter of today, the 14 October 2005, from your
legal representative Ms Michaela Byers, we are releasing you from immigration
detention on the basis that you may hold an absorbed person visa by operation of
section 34 of the Migration Act 1958 and may also hold a transitional
(permanent) visa.

We have identified your case as one which is similar to the case which was
the subject of the decision of the Full Federal Court in Nystrom v
Minister for Immigration and Multicultural Affairs [2005] FCAFC. According
to that decision, if you held an absorbed person visa (as well as a transitional
(permanent) visa), that visa needed to be identified and considered by the
Minister in making the decision to cancel your transitional (permanent) visa
under section 501 of the Migration Act 1958. This was not done in your
case.¹⁰⁸
Mr El Masri was accordingly released from immigration
detention on 14 October 2005.

Conclusion: detention after
16 July 2005 was inconsistent with Mr El Masri’s human
rights

(a) Was Mr El Masri’s ongoing detention lawful?

The first issue I have considered in assessing whether
Mr El Masri’s ongoing detention following the decision in Nystrom was inconsistent with or contrary to art 9 of the ICCPR is
whether that detention was lawful.
The relevant question is whether an officer held a reasonable suspicion that
Mr El Masri was an unlawful non citizen. If such a reasonable
suspicion was held, Mr El Masri’s detention was required by
s 189 of the Migration Act and there was no discretionary act into which
I have the power to inquire, for the reasons set out above. On the other
hand, if there was no such reasonable suspicion, detention was not required and
Mr El Masri’s continued detention is an act done by the
Commonwealth into which I may inquire.
In my view, it was not reasonable to maintain a suspicion that
Mr El Masri was an unlawful non-citizen for the entire 105 day
period between the decision in Nystrom and the day of his release.
It was not reasonable because the Department failed promptly and thoroughly
to reconsider Mr El Masri’s situation despite the significant
change in the circumstances relating to Mr El Masri. When proper
consideration was given to his case, including the receipt of information from
Mr El Masri that was vital to the issue of whether he was an
‘absorbed person’, the suspicion that he was an unlawful non-citizen
was no longer held and he was released from detention.
I accept the Department’s submission that the issue of whether
Mr El Masri held an absorbed person visa was ‘an
inherently complex question of fact and law’. It was the
Department’s failure to act promptly to resolve that question, including
seeking information from Mr El Masri on the relevant questions of
fact, which resulted in the unlawfulness of Mr El Masri’s
detention.
This analysis is not altered by the High Court’s ultimate decision in Nystrom or the Full Federal Court’s decision in Sales. This
is because the lawfulness of Mr El Masri’s detention after 1
July 2005 and before his release on 14 October 2005 must be assessed by
reference to what was reasonably capable of being known by an immigration
officer at this time. As I have indicated above, an officer cannot
‘know’ what is yet to be decided by a court. Nor can they
‘reasonably suspect’ that which is contrary to the state of the law
as it stands.

(b) Mr El Masri’s detention became unlawful
when the suspicion that he was an unlawful non-citizen could no longer be
reasonably maintained

In my view it is possible to identify a point in time by which it can be
said that Mr El Masri’s detention had become unlawful. This is
based on timeframes within which it was reasonable for Department to do the
things necessary to reconsider the suspicion that Mr El Masri was
an unlawful non-citizen following the decision in Nystrom.
In my view, a reasonable timeframe within which the Department should have
identified that Mr El Masri may have been affected by the Nystrom decision was within four days of that decision being published on
1 July 2005. This takes into account the average time identified by the
Department as necessary to recover possible affected persons’
files.¹⁰⁹ There is no suggestion by the Department that there was any
particular difficulty recovering Mr El Masri’s files that would
have meant that it would have taken more than four days to identify that
Mr El Masri may have been affected by Nystrom. Such a
timeframe reflects the importance of what is at stake – a person’s
liberty.
The Department identified that the following criteria would need to be
assessed in determining whether a person was affected by Nystrom:

(a) he/she had an absorbed person visa under s 34 of
the Migration Act

(‘the Act’);

(b) he/she had a transitional (permanent) visa cancelled (or purportedly
cancelled) under s 501 of the Act; and

(c) the said cancellation decision had been taken without consideration

of its effect on the person’s absorbed person visa.
In my view, criteria (b) and (c) were not complicated questions and could
have been resolved within the four days that I have decided was an
appropriate time within which to recover the files of persons potentially
affected. However, it is the first of these criteria – whether a person
held an absorbed person visa – that the Department submits was a
potentially complicated question.
I accept that whether a person holds an absorbed person visa is a
potentially complicated question. However, in my view the circumstances required
that urgent action be taken to determine whether persons in detention may have held such a visa.
In my view, it should have been possible for the Department to determine
within four days whether a person was in Australia before 2 April 1984, a
threshold question in determining whether a person held an absorbed person visa.
Having determined this question in the affirmative, it was then necessary to
consider further the individual’s circumstances.
The Department states Mr El Masri was identified by the
Department as a person who may be Nystrom affected no later than 29
August 2005, a period of 59 days from the decision in Nystrom. In my view
this was a manifestly excessive period of time.
Upon a person being identified as potentially affected by Nystrom,
immediate steps should have been taken to determine whether that person held an
absorbed person visa. In Mr El Masri’s case, my view is that
such a decision could have been reached within 10 days. In this time information
could have been sought from Mr El Masri on the relevant questions
of fact and the legal issues could have been resolved. Again, given the
importance of the decision for a person who was deprived of their liberty,
I regard this as a reasonable period of time.
I therefore conclude that the suspicion that
Mr El Masri was an unlawful non-citizen ceased to be reasonable
after 14 full days had passed following the publication of the decision in Nystrom: ie Mr El Masri should have been released by no
later than 16 July 2005 and his ongoing detention after this date until his
release on 14 October 2005 (a period of 90 days) was unlawful.
In my view the ‘preliminary advice’ given by the departmental
officer on 16 September 2005 that Mr El Masri did not have
an absorbed person visa was not sufficient to maintain a reasonable suspicion
that Mr El Masri was an unlawful non-citizen. This is because of
the failure to seek information or submissions from
Mr El Masri or his legal representative and the failure to take
steps to finalise the advice such as seeking the advice of external counsel, as
recognised as being appropriate on 30 August 2005. Such failures made any
suspicion that Mr El Masri was an unlawful non-citizen
unreasonable.

(c) Was Mr El Masri’s ongoing detention
arbitrary?

The second issue raised under art 9(1) concerning
Mr El Masri’s ongoing detention following the decision in Nystrom is whether that detention was arbitrary.
In my view, while the issues concerning arbitrariness are closely linked
with those concerning lawfulness in this case, the questions are distinct ones.
In my view, the failures of the Department to act in
Mr El Masri’s case were acts that were inconsistent with his
right not to be arbitrarily detained.
The Department submits that lawful detention under s 189 cannot be arbitrary
even if it is ‘disproportionate’.¹¹⁰ It submits that
while proportionality may have some place in relation to discretionary
detention, or where the limits of a purposive power are being identified, it
does not assist in a case arising under s 189 where the requisite suspicion, or
reasonable belief, exists. The Department states: ‘Once an officer
reasonably suspects that a person is an unlawful non-citizen in the migration
zone, the officer must detain that person. There is no
discretion’.¹¹¹
I agree that where detention is required by law under s 189, the
act or practice of detaining that person is not an ‘act’ or
‘practice’ that falls within the scope of the Commission’s
human rights complaints jurisdiction.
However, in my view, this does not mean the Commission can not inquire into
the discretionary acts and practices of officers of the Commonwealth –
including failures to act – which may have the effect of unjustly or
inappropriately prolonging a person’s detention.
In my view, where an officer of the Commonwealth fails to do an act that has
the effect of prolonging a person’s detention under the Migration Act, and
such failure is unreasonable in all of the circumstances, it will be open to the
Commission to find that the failure is an ‘act’ or
‘practice’ that is inconsistent with or contrary to a person’s
right not to be arbitrarily detained.
Not all delays or failures that prolong detention will be unreasonable and
in some cases there may be appropriate and sufficient reasons for delay. This
was not such a case.

(d) The failure of the Department to act was
inconsistent with Mr El Masri’s right not to be arbitrarily
detained

I find that the failure to take action promptly to identify
Mr El Masri as a person who was potentially affected by Nystrom, and to promptly and thoroughly review his immigration status to
determine whether the ‘reasonable suspicion’ persisted, is an act or
practice that was inconsistent with Mr El Masri’s right not to
be arbitrarily detained.
There is no explanation offered by the Department for the delay of 59 days
from the date of the decision in Nystrom to the time at which
Mr El Masri was identified by the Department as a person who may
be Nystrom affected. I have found that this assessment should have
been made within four days. In my view, the delay was unreasonable.
I also find unreasonable the Department’s failure to conduct a
prompt and thorough review of Mr El Masri’s immigration status
once he was identified as being potentially Nystrom affected. The
Department failed to seek information or submissions from
Mr El Masri on this issue that affected his liberty.
The Department also failed to finalise its consideration beyond the
‘preliminary advice’ finally provided on 16 September 2005. In
particular, the Department failed to seek the opinion of external counsel
despite this having been recognised as ‘appropriate’ on 30 August
2005, given the ‘legally tricky’ nature of the case.
Also relevant to the unreasonableness of the Department’s failures and
delays in Mr El Masri’s case is the fact that between the
decision in Nystrom and his release on 14 October 2005,
Mr El Masri’s prolonged detention was known to be exacerbating
his mental health problems and medical experts had recommended that the best
course of treatment would be to release him into the community. These
circumstances added to the urgency of deciding questions upon which
Mr El Masri’s liberty depended.
I therefore find that the failures to take action to identify
Mr El Masri as a person who was potentially affected by Nystrom and to promptly and thoroughly review his immigration status were
acts that were inconsistent with Mr El Masri’s right not to be
arbitrarily detained. Had such action been taken promptly,
Mr El Masri’s detention would not have been prolonged. The
decision that was ultimately reached on 14 October 2005 would have been made
much earlier.
For the reasons set out above, I am of the view that it would have been
appropriate to have reviewed Mr El Masri’s case by 16 July 2005.
Accordingly, I find that, as a result of the failure of the Department to
act consistently with Mr El Masri’s human rights his detention
from 16 July 2005 until his release on 14 October 2005 (a period of 91 days) was
arbitrary.

Part F: The detention of
Mr El Masri on 28 November 2006

Complaint

The Complainant alleges that Mr El Masri was unlawfully
detained on 28 November 2006 in breach of art 9(1) of the ICCPR.
Further concerns expressed by the Complainant about the detention of
Mr El Masri on 28 November 2006 include:
- The failure of the Department to check file and computer systems and
  maintain up to date files of court decisions;
- The failure of the Department to conduct an assessment about the
  appropriateness of alternative detention considering that
  Mr El Masri had schizophrenia and diabetes;
- The failure of the Department to conduct assessments as to ‘whether
  detention and then deportation could occur as Lebanon’s position in
  December 2004 was that Lebanon would not issue a travel document’; and
- The placement of Mr El Masri in Stage 1 during
  ‘fighting between rival Asian and Arabic
  gangs’.¹¹²

Findings of Fact

On 24 November 2005, Justice Allsop ordered that a writ of
certiorari be issued quashing the decision of the Minister for Immigration
to cancel Mr El Masri’s transitional (permanent)
visa.¹¹³
Both Mr El Masri and the Minister for Immigration agreed that
the decision to cancel Mr El Masri’s transitional (permanent)
visa was vitiated by jurisdictional error on the authority of the decision of
the Full Federal Court in Nystrom.¹¹⁴
On 8 November 2006, the High Court upheld the appeal against the decision of
the Full Federal Court in Nystrom.¹¹⁵ Following this decision,
Mr El Masri was again detained on 28 November 2006.
The duration of Mr El Masri’s detention from the time of his
arrest at 5:50 am to his release at 1:00 pm on the same day was approximately 7
hours.
The circumstances in which this detention occurred are set out in the
submissions of the Department and the statements of
Mr El Masri and his wife. I accept that:

(a) At 5:50 am, four NSW police, seven departmental officers, and a
locksmith went to Mr El Masri’s home. Two other officers were
stationed in an adjacent street.

(b) Two police officers and two departmental officers went to the front door.
One of Mr El Masri’s daughters answered the door. She said
her father was not home.

(c) The departmental officers entered the house and located and detained
Mr El Masri. He was led to a departmental vehicle, without using
handcuffs, in his t-shirt and underwear.

(d) The Department did not permit Mr El Masri to go back to
the house to dress ‘based on his history of violence’.

(e) Mr El Masri was calm and cooperative but his wife was
distressed.

(f) When Mr El Masri was in detention, his legal
representative contacted the Department.

(g) The Department then discovered that its records were incomplete and their
legal division confirmed that Mr El Masri held a transitional
(permanent) visa which had been restored to him as a result of the Federal Court
order of 24 November 2005.

(h) Mr El Masri was released at 1:00 pm on
28 November 2006.¹¹⁶
The Department submits that departmental systems were not updated with
information about the orders of Justice Allsop.¹¹⁷ In an undated
letter to Ms Byers, the Department denied that the Compliance Officer who caused
Mr El Masri’s detention was negligent. The Department said:

A failure to update departmental systems and to keep accurate
records, not [the Compliance Officer’s] actions directly contributed to
the detention of Mr El- Masri. At the time National [O]ffice reviewed
Mr El Masri’s case it would appear that
Mr El Masri’s client related paper records and system records
did not contain any useful information that would have alerted the reviewing
office to the existence of the consent orders. This review was undertaken to
inform a compliance strategy in relation to the imminent High Court decision in
Nystrom. Based on a reasonable belief that Mr El-Masri was released from
detention as a result of being Nystrom affected, NSW [police] was advised
accordingly and he was subsequently detained following the High Court’s
decision.
It is difficult to understand how information as important as
Mr El Masri’s Federal Court proceedings and the consequent
reinstatement of his visa could have been omitted from his file. Nevertheless,
I accept the Department’s submission that departmental systems were
not updated with a complete record of the orders made by Justice Allsop on
24 November 2005.
I find that there was a failure to update departmental systems and to
record that Mr El Masri was, by reason of the orders of Justice
Allsop, a lawful non-citizen.

Conclusion:
Mr El Masri’s detention on 28 November 2006 breached
his right not to be arbitrarily detained

Mr El Masri was not affected by the High Court’s
decision in Nystrom. The effect of the decision of Justice Allsop on 24
November 2005 was that his transitional (permanent) visa was restored to him.
When the Department discovered Mr El Masri was not affected by
the High Court’s decision in Nystrom, the Department released
him.
The Department submitted that Mr El Masri’s detention on
28 November 2006 was not arbitrary. The Department said ‘[t]he
circumstances surrounding Mr El Masri being taken into custody
would indicate that this was not an arbitrary detention but part of an action
involving a group of people affected by the High Court decision in Nystrom’.¹¹⁸
I do not accept the Department’s submission.
Mr El Masri was not affected by the decision of the High Court
because Justice Allsop had restored his transitional (permanent) visa. Further,
for the reasons I set out below, I consider the failure of the
Department to keep proper records was an act that was inconsistent with
Mr El Masri’s right not to arbitrarily detained.
I find that the detention of Mr El Masri on
28 November 2006 and the acts leading to it, were inconsistent with
art 9(1) of the ICCPR. In my view, there two are alternative bases upon which
this finding can be made.

(a) The failure to keep adequate
records was inconsistent with Mr El Masri’s right not to be
arbitrarily detained

The Department has stated that the detention of
Mr El Masri was a result of its failure to keep adequate records.
Given that s 189 of the Migration Act requires a non-citizen to be detained
if they do not hold a valid visa, the significance of failing to record details
of a decision reinstating a person’s visa is, and should have been,
obvious. The fact that departmental record systems did not contain ‘any
useful information’ concerning the orders of Justice Allsop is
unacceptable.
Recording such information on Mr El Masri’s file would have
avoided his detention – the circumstances of which I accept were
traumatic for both Mr El Masri and his family – on
28 November 2006.
The failure to keep adequate records was inconsistent with
Mr El Masri’s right not to be arbitrarily detained. The failure
was unreasonable and had the clearly foreseeable consequence of
Mr El Masri’s detention, given the strict terms of s 189 of the
Migration Act.
I note that when Mr El Masri was released, the letter
informing him of his release foreshadowed that the appeal of Nystrom to
the High Court may have resulted in his status and release from detention being
revisited. The importance of the decision of the Federal Court to reinstate
Mr El Masri’s visa when his freedom was otherwise seen as
conditional on the outcome of the High Court’s decision in Nystrom should therefore have been obvious.

(b) Mr El Masri’s
detention was unlawful because the suspicion he was an unlawful non-citizen was
not reasonable

To deprive a person of his or her liberty pursuant to s 189 of the Migration
Act, an officer must hold a ‘reasonable suspicion’ that a person is
an unlawful non-citizen. I am of the view that the orders made by Justice
Allsop were on the public record and reasonably capable of being discovered.
Mr El Masri had been in the community for over a year and it
was incumbent upon immigration officers to check Mr El Masri’s
immigration status, including whether there were any court orders restoring
Mr El Masri’s visa. I also find it difficult to accept that
there was nothing on Mr El Masri’s file that would have alerted
an officer to the court proceedings before Justice Allsop. I therefore
consider that the suspicion that Mr El Masri was an unlawful
non-citizen was not reasonable in all the circumstances.

Part
G: The detention of Mr El Masri in MSU

Complaint

The Complainant alleges that placing Mr El Masri in the MSU
breached his human rights. In particular, the Complainant has expressed concern
about the impact of Mr El Masri’s prolonged detention in MSU on
his mental health.
The Complainant also alleges that the Department did not provide
Mr El Masri with appropriate medical care whilst he was detained
in MSU and that the Department refused him access to his long-standing treating
psychiatrist, who I will refer to in this report as ‘the first
independent psychiatrist’.
These complaints raise the question of whether Mr El Masri’s
prolonged detention and treatment in MSU breached art 10(1) of the ICCPR, which
places a positive obligation upon the Department to treat those in immigration
detention humanely.
The decision to place Mr El Masri in MSU was taken by the
Management team at VIDC, who also took responsibility for
Mr El Masri’s management while in MSU. The Department states
that this management team consisted of ‘DIAC, GSL, PSS (Professional
Support Services) and IHMS’.
I am treating the act of placing Mr El Masri in MSU as
an act of the Department, which I take to have ultimate responsibility for
the decisions relating to Mr El Masri’s ongoing placement in
MSU.

The purpose of MSU

VIDC is divided into Stages 1, 2 and 3. Stage 1 has been described by the
Department as a ‘purpose built facility which accommodates single males,
predominantly in large dormitories’.¹¹⁹ It provides the most
secure facility of the VIDC stages.
MSU is a short term facility that is used for ‘separation
detention’.¹²⁰ It is a short term facility where detainees are
segregated from other detainees and kept under frequent observation. It is the
most restrictive detention environment in VIDC.
The Department states detainees are placed in the MSU only when there is no
other viable alternative for ensuring good order and security of the detention
facility and the safety of those in it, including the detainee.
The Department said that when a detainee is placed in MSU, emphasis is
placed on addressing the issues of concern which led to the placement in the
first place, in order for the detainee to be reintegrated into stages 1, 2 or 3
as soon as possible.

Findings of fact concerning Mr El Masri’s
medical conditions

(a) Mr El Masri had a number of identified medical conditions, including
schizoaffective disorder

At the time Mr El Masri was detained in MSU he was diagnosed
with schizoaffective disorder. Schizoaffective disorder is a term that
encompasses bipolar disorder and schizophrenia.
The Department was aware that Mr El Masri had a number of
medical conditions, including schizoaffective disorder.
Mr El Masri was also known to have a problem with illicit
substance abuse; be an insulin dependant diabetic; and have been diagnosed with
Hepatitis C.
Mr El Masri’s Management plan (dated 30 July 2005)
states:

Mr El Masri has presented several instance of
self-harm and has been on various levels of SASH [Suicide and Self Harm] since
28 October 2004. He has been on 2 minute observations since 8 April 2005. He
continues to present challenging behaviours (attempted escapes, demonstrated
verbal and physical aggression and threats). His behaviour can be unpredictable,
he can become volatile [sic] and he appears to try and manipulate his
environment and the people who live and work with him. He has a history of drug
use. He requires very close management and ongoing monitoring.¹²¹

(b) Mr El Masri had a long history of mental health problems

Mr El Masri had a history of mental health illness prior to
his detention in VIDC.
The Department states that Mr El Masri was diagnosed with
chronic psychosis when he was in corrective services and continued to exhibit
this condition when he was taken into immigration detention.
Incident reports indicate that Professional Support Services (PSS), a
national organisation which provides psychological counselling services under
subcontract to the Detention Services Provider (DSP) closely monitored and
regularly assessed Mr El Masri, including arranging for a psychiatric
assessment at Banks House on 4 July 2005.
Mr El Masri had a long history of self-harm while in
immigration detention. In November 2003 Mr El Masri was admitted
to Liverpool Hospital with a self-inflicted laceration to his neck. A report in
2005 by an independent psychiatrist (who I will refer to in this report at
‘the second independent psychiatrist’) observed ‘this was a
serious suicide attempt in that it could easily have been fatal’.
Mr El Masri’s medical file records that on 3 May 2005, the
first independent psychiatrist described Mr El Masri’s
depression as ‘situational’.¹²² On 17 May 2005, the
first independent psychiatrist stated ‘Mr El Masri has been
on constant suicide and self-harm watch since early April 2005 ... his affect is
flat and he presents as hopeless. His current detention situation has been
ongoing for a long time and he is unable to see an end to
it’.¹²³
On 25 May 2005, the Senior Psychologist at VIDC stated
Mr El Masri had been on constant suicide and self-harm watch
since early April 2005. She expressed concern Mr El Masri would
repeat previous attempts to commit suicide and added ‘[h]e appears to have
resigned himself to the fact he will die in detention and has said on a number
of occasions that he will do it when he is not being
watched’.¹²⁴
On 6 June 2006, the Senior Psychologist at VIDC reported that
Mr El Masri’s suicidal ideations appeared to be a result of
‘his ongoing detention situation, his hopelessness and familial
stressors’. She observed ‘those stressors that lead him to feel
suicidal continue to remain and it appears that until these stressors are
removed he remains at high risk’.¹²⁵
On 24 June 2005, the first independent psychiatrist said that it would be
helpful for Mr El Masri’s depression and suicidal ideation if
Mr El Masri was released back into the community, although the
first independent psychiatrist noted ‘there are legal and other issues and
that is not an easy answer’.¹²⁶
An undated letter from a third psychiatrist who examined
Mr El Masri concluded ‘it would appear that
[Mr El Masri’s] suicidal ideation is directly linked to his
detention status and the only way he can continue to be managed in detention is
to remain on 2 minute observations to avoid direct self-injury. I feel his
management in detention is now compromised’.¹²⁷

Justification by the Department for placing
Mr El Masri in MSU

The Department has stated that the decision to transfer
Mr El Masri to MSU was taken by VIDC management in order for the
Department, GSL and medical staff to monitor Mr El Masri closely.
The Department considered this monitoring was necessary, given concern that the
actions of Mr El Masri may pose a risk to himself and others, as
well as for the protection and good order and security of VIDC.
The Department states the accommodation of Mr El Masri in MSU
was considered to be the most appropriate option based on:

(a) the
recommendations by the second independent psychiatrist;

(b) Mr El Masri’s non-compliance with established behavioural
limits (ie self-harm attempts, hunger strike, refusing his medication, use of
illicit drugs) and ongoing behavioural and psychological concerns; and

(c) his refusal to be placed in another other location at VIDC except Stage
3.¹²⁸
Management Plans indicate the purpose of placing
Mr El Masri in MSU was to enable him to be closely supervised, to
help prevent further incidents and to reduce the opportunities available for him
to self-harm. There is evidence that Mr El Masri did not comply
with established behavioural limits (ie self-harm attempts, hunger strikes,
refusing his medication, use of illicit drugs).¹²⁹
The Incident Reports document the Department’s concern over
Mr El Masri’s possession of prohibited items (drugs, razors,
knives, scissors and mobile phones) and his behaviour (threatening self-harm,
barricading himself in his room, throwing items off a balcony and refusing to
let his children leave the detention centre following a visit).
The only security risk assessment for Mr El Masri that has
been provided to the Commission is dated 15 September 2005. It states that
Mr El Masri’s substance abuse and mental health problems are
currently under supervision. The security assessment refers to numerous
incidents that Mr El Masri had been involved in whilst in
detention, including major disturbances in the centre, possession of prohibited
articles and damage to the centre, aggressive behaviour and violence towards
others, an attempt to escape, threats of self-harm and actual self-harm, and his
history of substance abuse and mental health problems. It also states that that
Mr El Masri has had ‘numerous successful attempts at
causing serious injury [to himself] and...a history of being aggressive, abusive
and causing damage to property’.¹³⁰
The Department also provided the Commission with a number of Behavioural
Agreements and Reintegration Plans which were put in place with
Mr El Masri’s agreement. The stated purpose of the Reintegration
Plans was to ‘enable a structured reintegration of
Mr El Masri into the general population of the Centre and to
better support his return to the daily routine and activities at the
Centre’.¹³¹

Consideration by the Department of
alternatives to detaining Mr El Masri in MSU

The Department states that it considered the following alternatives to
placing Mr El Masri in MSU:

Two options considered
but not trialled were increased escorts to his home and a reward system. These
options were not implemented as they were considered as short term solutions and
VIDC management were not confident that Mr El Masri would agree
to the conditions attached to these options. During
Mr El Masri’s accommodation in the Management Support Unit
between late July and mid October 2005, he had been participating in a
reintegration process to return to Stage 3. Part of that process would involve
him spending three hours a day in Stage 3 and having lunch in Stage 2.

A placement in an alternative place of detention (Residence Determination)
was also being considered, but Mr El Masri was discharged from
immigration detention before the Minister could make a final decision on the
granting of Residence Determination. Mr El Masri continued to
have regular consultations with the psychiatrist, psychologist and mental health
nurses from Professional Support Services (PSS) during his accommodation in the
MSU. Mr El Masri also spent time at Banks House (a mental health
facility attached to Bankstown Hospital) on several occasions for psychiatric
assessment and treatment.¹³²
The Department has provided a copy of teleconference minutes from
29 August 2005 and 5 September 2005 at which a multi-stage community
reintegration plan for Mr El Masri was discussed. This plan
involved:
- Continued placement at MSU in VIDC with psychiatric intervention to
  stabilise his presenting psychiatric symptomology and at-risk behaviour or
  admission to a psychiatric facility;
- Progression to a short-term placement option in VIDC Stage 3;
- Progression to a residential determination pending removal sponsored by a
  third party with structured community services
  
  to reduce the likelihood of
  pro-criminal behaviour;
- Residence bridging visa pending removal to be considered if
  Mr El Masri demonstrates ongoing compliance to behavioural
  objectives.¹³³
Following reforms that came into force in June 2005, the Minister had a
statutory power to make a residence determination specifying alternative
residence arrangements for a person in immigration detention.¹³⁴ Under s 197AF this power to make a residence determination may only be
exercised by the Minister personally. There is no duty to consider whether to
exercise the powers.¹³⁵
On 13 July 2005, before Mr El Masri was placed in MSU, the
Minister accepted a submission from the Department to explore residence
determination for Mr El Masri.¹³⁶ However, Mr El
Masri was removed from detention before the Minister could make a decision
about whether to grant a residence determination.¹³⁷

Findings about Mr El Masri’s access to medical
care

I find that Mr El Masri’s access to medical care within
MSU was adequate. His diabetes appears to have been closely monitored and he
received appropriate medication for this condition.
Mr El Masri was seen regularly by psychiatrists and had
multiple admissions to Banks House, a mental health facility attached to
Bankstown Hospital, for psychiatric assessment and treatment. His medical
records show he was receiving regular medication for both physical and mental
health conditions.
I find that Mr El Masri’s requests to see the first
independent psychiatrist were granted. I accept evidence provided by the
Department that indicates Mr El Masri consulted with his treating
psychiatrist on 3 May 2005, 9 June 2005 and 16 August 2005. I note, in
particular, that email records from 16 August 2005 show
Mr El Masri had requested to see the first independent
psychiatrist and the Department had arranged for this to occur at 4:45 pm the
same day.

Findings about Mr El Masri’s mental health
after being placed in MSU

While it appears that Mr El Masri received access to
appropriate medical staff, there is a separate question about whether the
Department and GSL took adequate action to implement the recommendations of
medical staff, notably the two independent psychiatrists, that
Mr El Masri should be moved from MSU to a different
setting.¹³⁸

(a) Evidence about Mr El Masri’s
mental health in MSU

Mr El Masri was transported to Banks House for psychiatric
assessment on 29 July 2005, and 2, 5, 8 and 26 August 2005. These visits
were made for a variety of reasons including incidents of attempted and actual
self-harm, refusal to accept medication or medical treatment, and as a result of
Mr El Masri’s own request. Each time he was returned to VIDC
without being sectioned under the Mental Health Act 1990 (NSW).
On 10 August 2005, the Psychiatry Registrar at Bankstown Hospital reported
that:

[Mr El Masri] has been seen by at least three other
psychiatrists here. He had a history of anti-social personality disorder and
psychosis (nos). We reviewed him yesterday, the reason he gave for this episode
of self harm by stabbing himself with a pen is because he was put in isolation.
There was no evidence of any injury. He complained that he doesn’t have
access to his wife and children. He has minor sleep disturbance. He didn’t
have any psychotic or clear depressive symptoms. The main stressor in his life
is staying in the detention centre and spending time in isolation. His wife has
said the only time some body listens to him in the detention centre is when he
harms himself. It’s obvious he has manipulative behaviour and he remains a
chronic risk of self-harm unless the situation is changed.
On 16 August 2005, the first independent psychiatrist recommended that
‘[Mr El Masri] should be moved from the MSU to Stage III as
he is settled and promising to behave’. He also recommended suicide watch
continue.¹³⁹
On 19 August 2005, the second independent psychiatrist reported that
Mr El Masri had schizoaffective disorder. The second independent
psychiatrist examined Mr El Masri for one hour on 19 August 2005
at VIDC in what the second independent psychiatrist described as an ‘area
(Stage 1) where he was being detained alone under the supervision of officers
and under frequent observation’.¹⁴⁰
The second independent psychiatrist stated:

He wants to be
released and so is likely to continue to engage in behaviour which he believes
will facilitate his release and so is likely to remain a difficult management
problem as long as he remains in detention. There will always be the uncertainty
as to whether his difficult behaviour at any point in time is manipulative or
the result of his psychoses or a mood swing and so the nature of each persistent
behavioural deterioration will need to be determined by a psychiatrist either at
Villawood or at a Public Hospital. As he is currently hypomanic his behaviour
will be unpredictable and difficult to manage if he is not getting his way. Thus
he should remain in his present situation in Stage 1 under close observation at
least until his hypomania settles as whilst he is there he is likely to be
brittle, will need to be humoured and his word could not be relied upon ... When
his hypomania has settled a decision will need to be made as to whether he can
leave Stage 1 and its close observation. The problem will be if he is not going
to be released from detention and his manipulative behaviour continues. In my
opinion the management of manipulative behaviour is by limit setting and so
being returned to Stage 3 would be conditional on him agreeing to abide by the
behavioural limits set on him by the management team including the psychiatrist
and the psychologist. If he does not agree to abide by them he should remain in
Stage 1 or if he agrees and transgresses he should be returned to it. He is at
threat of killing himself in relation to two possibilities: intentional as a
result of a psychotic motivation from a deterioration in his psychoses be it
schizophrenic, depressive or hypomanic; misadventure to affect his
release.¹⁴¹
In the second independent psychiatrist’s opinion,

the
best clinical setting for Mr El Masri’s management given would
be for him to be released to the community under the care of a psychiatrist and
if this is a realistic possibility in the circumstances of his case, as he
believes it is, then I would recommend that it be expedited. If it is
not possible to release him then I would continue his current management at
Villawood and if his psychosis does not settle and proves too difficult to
manage in his current situation then he should be transferred to a psychiatric
hospital (emphasis added).¹⁴²
The second independent psychiatrist stated that if it was not possible for
Mr El Masri to be released into the community under care or
transferred to a prison hospital,

then I see no alternative
other than his management continuing as it has in recent times which will
involve him being moved between Stage 1 and Stage 3 as his behaviour merits and
between Villawood and the State’s Public Health Psychiatric Services and
United for assessment and/or temporary admission under the Mental Health
Act.¹⁴³
The second independent psychiatrist provided the following summary of his
report:

On the basis of his presentation and given that current drug
abuse can be eliminated then Mr El Masri has Bipolar Disorder. If
his history of hearing voices apart from periods of drug abuse is accepted then
he also has Schizophrenia. This combination is diagnosed as Schzioaffective
Disorder.

....

If his psychoses can not be controlled at Villawood then he should be
admitted to a Public Hospital Psychiatric Unit for as long as necessary to
attain therapeutic control. However, when his psychosis is controlled then
unless he is released from detention he is likely to continue his manipulative
behaviour. He will then need frequent psychiatric assessment to ascertain if any
difficult behaviour is manipulative or psychotic. As he is at danger of killing
himself by psychotic intent or misadventure he will be difficult to manage in
the facilities of Villawood. If limit setting fails for either reason then in my
opinion he should be placed in a facility with the appropriate staff resources
and physical facilities and where suitable ongoing behavioural management can
occur such as the Prison Psychiatric Hospital.¹⁴⁴
The second independent psychiatrist’s report does not refer to
Mr El Masri’s placement in MSU. It does, however, refer to Stage
3 and Stage 1.
On 16 August 2005, the first independent psychiatrist recommended that
Mr El Masri be moved from the MSU to Stage 3. Asked what steps
the Department took to implement the recommendations of two independent
psychiatrists, the Department stated:

The management team at
Villawood IDC implemented the following recommendation from [the first
independent psychiatrist’s] report; that Mr El Masri be
moved from MSU and re-integrated into Stage 3. In conjunction with [the first
independent psychiatrist’s] recommendation, the management team also
implemented the following recommendation from [the second independent
psychiatrist’s] report:

That Mr El Masri’s placement in MSU should continue until he
agrees to the behavioural limits set by the management team at Villawood IDC
(including the psychiatrist and psychologist), and his hypomanic condition
settles.

[The second independent psychiatrist] also noted that if
Mr El Masri did not agree to abide by the behavioural limits set
then he should remain in MSU or if he agreed and then transgressed; he should be
returned to MSU.¹⁴⁵
This statement by the Department appears to misquote the second independent
psychiatrist’s report of 18 August 2005, discussed above.
The Department states that detainees in MSU are reviewed every day by the
placement review team to determine whether alternative accommodation is
available or appropriate.¹⁴⁶
Mr El Masri’s reintegration plans stated his placement in
MSU would be reviewed on a daily basis and if he continued to show good
behaviour, consideration would be given to moving him to a less restricted
accommodation area – namely, Stage 1.¹⁴⁷
There is no direct evidence that Mr El Masri’s detention in
MSU was reviewed on a daily basis. On 30 August 2005
Mr El Masri was informed he must stay in MSU for a further 8
days.¹⁴⁸
In response to a question about whether the Department conducted a daily
review of Mr El Masri’s placement in MSU as required in the
Management plans, the Department stated that while the management team at VIDC
regularly reviewed Mr El Masri’s placement, ‘formal
records of Client Placement reviews were not maintained at VIDC in
2005’.¹⁴⁹
The Department has provided a copy of Mr El Masri’s Care
Plan.¹⁵⁰ This plan outlines Mr El Masri’s behavioural
issues and medical management. There are no records of incidents of concern
between late August and 4 October 2005.
In the period before his release from detention,
Mr El Masri was released out of MSU for three hours a day to eat
lunch and interact with other the detainees in the compound. He was also
escorted to Stage 2 to eat lunch and interact with other detainees.
When Mr El Masri was released from detention on 14 October
2005 his discharge summary stated ‘ongoing psychiatric care to be
continued’.¹⁵¹

(b) Findings about the impact of
MSU on Mr El Masri’s mental health

I find that Mr El Masri’s prolonged detention in MSU
had a negative impact on his mental health. It was not suitable for
Mr El Masri to be detained in restrictive and isolated conditions
of MSU for extended periods of time and this form of detention had a negative
impact on his mental health.
I find that Mr El Masri’s prolonged detention in MSU
was not properly reviewed. In particular, I accept that on 30 August 2005
Mr El Masri was informed he must stay in MSU for a further 8
days. I find that Mr El Masri’s uncertainty about when he
would be released from MSU caused him significant additional distress and
anxiety.

Conclusion: Mr El Masri’s treatment in MSU
breached his right to be treated with humanity and dignity

(a) The conditions of Mr El Masri’s prolonged detention in MSU
breached art 10(1) of the ICCPR

I find that Mr El Masri’s prolonged detention in MSU
from the period of 29 July 2005 to 14 October 2005 breached his right to be
treated with humanity and dignity in accordance with art 10(1). This finding is
based upon on a matrix of factors including:

(a) the impact of
prolonged detention in the restricted and isolated conditions of MSU on
Mr El Masri’s known mental health conditions;

(b) the failure to fully implement the recommendations of medical experts;
and

(c) the failure to conduct regular reviews of Mr El Masri’s
placement

in MSU.
Although Mr El Masri’s mental health problems reportedly
predated being taken into immigration detention, the medical evidence leads me
to conclude that his mental health problems were worsened by the conditions of
MSU. The consensus of medical experts was that the best clinical setting for the
treatment of Mr El Masri would have been achieved if he were
released into the community.
The Department accepts that the MSU is not intended to accommodate detainees
for long periods. However, the Department’s claim that
Mr El Masri’s detention in MSU was reviewed daily does not
appear to be supported by the material before me.
I find that that Mr El Masri’s detention was not
reviewed on a daily basis to determine whether more appropriate accommodation
existed and on one occasion Mr El Masri was told he would
continue to be detained in MSU for 8 days. I accept that
Mr El Masri’s uncertainty about when he would be released from
MSU caused him additional distress and anxiety beyond that which he was already
suffering by reason of his prolonged detention.
I note that the Department asserts that Mr El Masri was
accommodated for approximately 71 days, not 78 days. The Department states that
‘the 71 days takes into account the external escort of
Mr El Masri from Villawood IDC on seven occasions between late
July and mid October 2007’.¹⁵²
The merits of the complaint that Mr El Masri’s prolonged
placement in MSU breached his right to be treated with humanity and dignity does
not turn upon whether he was detained for 78 days or 71 days. However,
I note the days the Department sought to exclude include the days when
Mr El Masri was being transported from VIDC to Banks House after
attempting to self-harm.
In all the circumstances, I conclude that the conditions in which
Mr El Masri was detained in MSU breached his right to be treated
with humanity and dignity art 10(1) of the ICCPR.

(b) Unnecessary
to make separate determination about whether detention in MSU breached art
9(1)

For the reasons I have set out in Part E, I consider that
Mr El Masri’s detention after 16 July 2005 and until his release
on 14 October 2005 breached art 9(1) on the basis that his detention was
unlawful, or alternatively that the failure adequately to review his immigration
status was inconsistent with his right not to be arbitrarily detained.
If a comprehensive and immediate review of the implications of the Nystrom decision had occurred, Mr El Masri would have been
identified as a ‘Nystrom affected’ person prior to being
placed in MSU. During the entire period of Mr El Masri’s
detention in MSU he could have been released pursuant to the authority of the
Full Federal Court in Nystrom.
The Commission has previously held that art 9(1) may be breached where a
person’s accommodation in detention changes in a way that involves a
further and serious deprivation of their liberty that significantly alters the
nature of their detention.¹⁵³ I agree with that approach.
Following this precedent, there may be an argument that
Mr El Masri’s detention in MSU constituted an additional
deprivation of liberty resulting in a separate breach of art 9(1) of the ICCPR.
However, as I have found that Mr El Masri’s ongoing
detention after 16 July 2005 breached art 9(1), I consider that it is
unnecessary to determine whether the additional deprivation of liberty imposed
on Mr El Masri by his detention in MSU constituted an additional
breach of art 9(1).

Part H: Use of force on
8 August 2005

Complaint

The Complainant alleges that on the afternoon of 8 August 2005,
Mr El Masri was knocked unconscious to the ground by guards. This
incident occurred at approximately 4:40 pm in the afternoon of 8 August
2005.

Justification of the use of force by the Department

The Department claims that on the evening of 8 August 2005
Mr El Masri was threatening self-harm with a pen.¹⁵⁴ The Department states the GSL Operations Manager directed members of the Control
and Restraint team to ‘confront and secure Mr El Masri in
order to prevent him causing injury to himself’.
The Department states this directive was carried out in a controlled manner.
Three GSL officers were involved in the cell extraction. Once secured,
Mr El Masri was examined by medical staff and mechanical
restraints were removed. Mr El Masri was then taken to Bankstown
Hospital for further examination.

Evidence about the use of
force

(a) The video recording

A video recording was taken of the incident on 8 August 2005 which shows
Mr El Masri being tackled to the ground by three officers and the
subsequent events from 20.42 (as shown in the recording).
It would appear that from 20.49 Mr El Masri was talking and
moving. Mr El Masri states on the video that he did want to
self-harm. He says ‘next time no more talking I’ll just fucking kill
myself’. While Mr El Masri was talking he took off his
clothes.
It is unclear from the video footage whether Mr El Masri was
knocked unconscious.

(b) Medical reports

The officer report dated 8 August 2005 reports that
Mr El Masri did not sustain any physical injuries. It
states:

Wrists and ankles post cuff applications showed redness on
the cuff line and nil skin breaks showed. Detainee was offered his regular night
medications but refused and stated “Just send me to mental
hospital”. Detainee later took his medication and put his clothes on. In
consultation with M.O on call [name deleted] detainee was sent to Bankstown
Hospital for psychiatric assessment. Transferred to the hospital via VIDC
transport at approximately 21:30hrs.
Mr El Masri was admitted to Bankstown Hospital about 11.30 pm
on 9 August 2005. He was discharged from Banks House on the morning of 10 August
2005 and placed in MSU on constant two-minute SASH observations. As discussed
above, the Psychiatry Registrar at Bankstown Hospital, reported that
Mr El Masri claimed his reason for self-harm was in protest of
being in isolation.
On 16 August 2005, Mr El Masri saw a Doctor at VIDC (the VIDC
Doctor). He reported to her that he was crash tackled and hit his head and that
he could feel the right side of his brain. He also reported that when he looked
at things they felt warped and that he had headaches on his right side a few
times per day for a couple of seconds. The VIDC Doctor’s examination found
a very mild tenderness over right temple and dizziness induced with repeated
head flexion.

(c) Police records

On 17 August 2005 Mr El Masri contacted Bankstown Local Area
Command to report the incident as an alleged assault. Two police officers
attended VIDC and spoke to the VIDC centre Manager and the VIDC security
officer. The police decided not to pursue the matter further. It is noted that
the Complainant denies that the police spoke to Mr El Masri.
The ‘COPS’ event entry states:

Upon speaking to the
centre manager and security officer Tim it was established that they had
conducted a cell extraction on the victim as he had in his possession a pen and
was holding it to his chest threatening self harm... the victim had no visible
injuries to indicate excessive force. The victim also did not complain of
excessive force being used he was just unhappy that they did the cell
extraction. It is this reason that police have created this event as
doubtful.¹⁵⁵

Conclusion: no breach of human rights

I find that the use of force against Mr El Masri did not
amount to a breach of either art 7 or 10(1) of the ICCPR. Taking
Mr El Masri’s complaint at its highest, I am not satisfied
that the alleged conduct was disproportionate in the circumstances or reached
the requisite level of severity to constitute a breach of arts 7 or 10(1). This
finding is based on my assessment of the video footage which I consider
does not suggest excessive force was used in the course of the ‘cell
extraction’.

Part I: Restrictions on
Mr El Masri’s telephone calls

Complaint

Mr El Masri alleges that whilst he was in MSU his incoming
calls were restricted and his outgoing calls were screened. In particular, the
Complainant alleges that phone calls made to Mr El Masri on 16
and 17 August 2005 by his wife and his previous legal representative were not
allowed through.

Evidence of restrictions placed on phone calls

These complaints raise potential breaches of art 10(1), art 17(1) and art
23(1) of the ICCPR.
It is undisputed that, for a period of time, Mr El Masri’s
use of the telephone was monitored or limited.
The Department claims the reason for the restrictions was
Mr El Masri’s use of the phone to call detainees in Stage 3 to
incite protests, including hunger strikes.
To establish a breach of Mr El Masri’s human rights it would
be necessary to show:
- The restrictions on Mr El Masri’s ability to contact his
  family constituted an arbitrary interference with his family, rather than a
  reasonable and proportionate action to ensure the safety and good order of
  VIDC.
- The right of Mr El Masri to consult and communicate, without
  delay or censorship and in full confidentiality, with his legal counsel was
  restricted contrary to art 10(1).
The Department has stated that the Management Plans are the only records
that describe the restrictions that were placed on Mr El Masri’s
telephone calls between late July and 14 October 2005.¹⁵⁶ According
to the Department:

Some restrictions were placed on outgoing calls
following observations that Mr El Masri was making telephone
calls to people in immigration detention in Stage 3, where he attempted to
incite protests and hunger strikes. No restrictions were placed on telephone
calls to or from Mr El-Masri’s family, HREOC, the Commonwealth Ombudsman,
the Department or Mr El-Masri’s legal representative.¹⁵⁷
A Management Plan dated 30 July 2005 for Mr El Masri states
incoming calls ‘will be permitted from Sunday 31 July 2005’, but it
does not indicate on what dates calls were not permitted. It also indicates
that:

outgoing social calls will be allowed but limited and
dependant on the detainee’s demeanour and compliance. Staff can determine
the duration but 15-20 minutes should seem sufficient. Calls to and from DIMIA,
HREOC and the Ombudsman’s office will occur as per normal protocols. Staff
will make the calls at all times. 2 staff will observe the call – as it
will be made from the Officers station.

A Management Plan dated 10 August 2005 states incoming call phone calls were
permitted. Outgoing calls were permitted but recorded as being ‘dependent
on him [Mr El Masri] meeting the agreed objectives’. The
‘agreed objectives’ are recorded as:
1. No assaults or threats to anyone
2. No threats of self-harm
3. No actual self-harm
4. No major outbursts
5. No disruptive behaviour
6. No deliberate damage to buildings, furnishings or fittings
7. Compliance with requests from staff and lawful instructions.
On 30 August 2005, the Management Plan states that
Mr El Masri was not to make any phone calls to detainees within
VIDC. Outgoing calls were permitted but dependent on him meeting agreed
objectives including no threats, assaults or actual self-harm. Incoming calls
were recorded as permitted.
There are no Management Plans that record what call restrictions, if any,
were imposed on 16 or 17 August 2005.
The Management Plans that have been provided to the Commission would seem to
support the Department’s statement that no restrictions were placed on
calls to the Commission, the Commonwealth Ombudsman, the Department or
Mr El Masri’s legal representative although they do not
specifically state that no restrictions were placed on calls to or from
Mr El Masri’s family.

Conclusion: no breach of
human rights

While I accept that there were restrictions placed on
Mr El Masri’s phone calls, I do not find that these were
disproportionate or unreasonable such as to constitute an arbitrary interference
with Mr El Masri’s family life.
In particular, I do not consider there is sufficient evidence to
support the allegation that phone calls made to Mr El Masri on 16
and 17 August 2005 by his wife and his legal representative were not allowed
through.
I am not satisfied that there is sufficient evidence to find that the
restrictions placed upon Mr El Masri’s phone calls constituted
an arbitrary interference with his privacy or his family life in breach of his
human rights under art 10, art 17(1) and 23 of the ICCPR.
I am not satisfied that there is sufficient evidence to support a
finding that the restrictions placed upon Mr El Masri’s phone
calls restricted his communications with his legal representative in breach of
art 10(1) of the ICCPR.

Part J: Visits by
Mr El Masri’s family

Complaint

The Complainant alleges that when her children visited
Mr El Masri they had to visit him in a cage and they were
concerned about his treatment. The Complainant states the ‘cage’ was
an area of 6 x 6 metres surrounded by wire mesh.
This complaint raises potential breaches of art 10(1), art 17(1) and art 23
(1) of the ICCPR.

Evidence about family visits to
Mr El Masri

The Department has provided evidence that between 26 August 2004 and 9
October 2005, Mrs El Masri and/or other family members visited
Mr El Masri a total of 134 times. Nineteen visits occurred when
Mr El Masri was detained in MSU.
In 2005, these visits occurred in the grassed area of the Stage 3 mess under
the supervision of the assigned officers or the Interview Room in Stage 3. At
times visits were conducted in the Stage 2 visiting area.
The Complainant submits there was no valid reason why the family could not
have seen Mr El Masri in the normal visiting area in Stage 2, and
that requiring Mr El Masri to visit his family in
‘cage’ like conditions was an unnecessary and disproportionate
restriction on his liberty.
The Department and GSL also arranged two external family excursions:

a
family BBQ picnic at a local park on 18 July 2005; and an escorted visit by
Mr El Masri to the family home on 28 July 2005.

Conclusion: no breach of human rights

I do not consider that the evidence provided by the Complainant
supports a finding that Mr El Masri was denied the right to be
visited by his family contrary to Principle 19 of the Body of Principles.
I find therefore that there was no violation of
Mr El Masri’s right under art 10(1). On the evidence currently
before me I am satisfied that Mr El Masri had adequate
access to visits from his family during his detention in VIDC.
There is no evidence before the Commission which supports the allegation
that Mr El Masri’s children were required to visit their father
in a cage. There is also insufficient evidence before me to conclude that the
conditions in which Mr El Masri’s family visited
Mr El Masri were unnecessarily or disproportionately restrictive.
While I accept that Mr El Masri’s children found it
distressing to visit their father in detention, I do not accept that the
conditions in which these visits occurred amounted to an
‘interference’ with Mr El Masri’s family life within
the meaning of art 17(1) of the ICCPR. Instead, I find that these
conditions were an ordinary incidence of his detention.

Part
K: Findings and recommendations

Power to make recommendations

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.¹⁵⁸ The
Commission may include in the notice any recommendation for preventing a
repetition of the act or a continuation of the practice.¹⁵⁹
The Commission may also recommend:

(a) the payment of
compensation to, or in respect of, a person

who has suffered loss or
damage; and

(b) the taking of other action to remedy or reduce the loss or

damage suffered by a person.¹⁶⁰

Submissions from the Complainant and Department

The Complainant has not made submissions about any special damage suffered
by Mr El Masri by reason of the alleged breaches of human rights.
The Department has submitted that since Mr El Masri commenced
common law proceedings, the Commission should not attempt its own assessment of
damages in tort, as such damages will be the subject of determination in the
common law proceedings.
Asked to respond to these submissions, the Complainant
stated:

[The Commission] investigates breaches of human rights under
the International Covenant of Civil and Political Rights which is different from
common law breaches. Mr El Masri may be successful in one
and not the other. We believe that in principle, Mr El Masri’s
matter should be assessed under international standards and there is no
prejudice to the common law court proceedings...

We further submit that the [Commission] should make a recommendation on
compensation if it is found that there were breaches of
Mr El Masri’s human rights as the common law court proceedings
would assess different heads of damages.¹⁶¹

The Complainant has not made submissions that seek to quantify the loss
suffered by Mr El Masri or provided any estimate of the amount of
compensation that is sought.
I acknowledge that common law proceedings commenced by
Mr El Masri are still to be the subject of a judicial
determination.
My statutory function is to inquire into the allegations that the
Commonwealth has acted inconsistently with Mr El Masri’s human
rights.
I have conducted these inquiries and I have found that the
Commonwealth has breached Mr El Masri’s human rights.
I therefore consider it is appropriate to recommend that the Commonwealth
consider compensation be paid to Mr El Masri on this basis.

Consideration of compensation

There is no judicial guidance dealing with the assessment of recommendations
for financial compensation for breaches of human rights under the HREOC
Act.
However, in considering the assessment of a recommendation for compensation
under s 35 of the HREOC Act (relating to discrimination matters under Part
II, Division 4 of the HREOC Act), the Federal Court has indicated that tort
principles for the assessment of damages should be applied.¹⁶²
I am of the view that this is the appropriate approach to take to the
present matter. As such, 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.¹⁶³
Mr El Masri remained in detention for an unnecessarily long
time after the Department failed to take opportunities to thoroughly review and
assess the continuing validity of Mr El Masri’s detention. These
failures prevented Mr El Masri from being released at an earlier
time.
The tort of false imprisonment is a more limited action than an action for
breach of art 9(1). This is because an action for false imprisonment can not
succeed where there is lawful justification for the detention, whereas a breach
art 9(1) will be made out where it can established that the detention was
arbitrary, irrespective of its legality.
Notwithstanding this important distinction, the damages awarded in false
imprisonment provide an appropriate guide for the award of compensation for a
breach of art 9(1). This is because the damages that are available in false
imprisonment matters provide an indication of how the Courts have compensated
the loss of liberty.
The Complainant has not made submissions that seek to quantify the loss
suffered by Mr El Masri, including submissions for pecuniary loss or
damage, medical costs or costs of legal proceedings.
I note, however, that the tort of false imprisonment is actionable
without proof of damage as the right to liberty is ‘the most elementary
and important of all common law rights’.¹⁶⁴
The principal heads of damage for a tort of this nature are injury to
liberty (the loss of time considered primarily from a non-pecuniary standpoint)
and injury to feelings (the indignity, mental suffering, disgrace and
humiliation, with any attendant loss of social status).¹⁶⁵ Damages
may also be aggravated by the circumstances of a particular case, for example,
where a lack of bona fide or improper or unjustifiable conduct on the
part of a respondent is established.¹⁶⁶
I note that the following awards of damages have been made for injury
to liberty and provide a useful reference point in the present case:
- In Taylor v Ruddock,¹⁶⁷ the District Court at first
  instance considered the quantum of general damages for the plaintiff’s
  loss of liberty for two periods of 161 days and 155 days, during which the
  plaintiff was in ‘immigration detention’ under the Migration Act but
  held in NSW prisons.
Although, as discussed above, the
award of the District Court was ultimately set aside by the High Court, it
provides useful indication of the calculation of damages for a person being
unlawfully detained for a significant period of time.

The Court found that the plaintiff was unlawfully imprisoned for the whole
of those periods and awarded him $50 000 for the first period of 161 days and
$60 000 for the second period of 155 days. For a total period of 316 days
wrongful imprisonment, the Court awarded a total of $110 000 (ie $348.10 per
day).

In awarding Mr Taylor $110 000 the District Court took into account the fact
that Mr Taylor had a long criminal record and that this was not his first
experience of a loss of liberty. He was also considered to be a person of low
repute and therefore his disgrace and humiliation was less.

On appeal, the Court of Appeal of New South Wales considered that the award
was low but within the acceptable range.¹⁶⁸ The Court noted that
‘as the term of imprisonment extends the effect upon the person falsely
imprisoned does progressively diminish’.¹⁶⁹
- In Goldie v Commonwealth of Australia & Ors (No
  2),¹⁷⁰ Mr Goldie was awarded damages of $22 000 for false
  imprisonment being wrongful arrest and detention under the Migration Act for
  four days (approximately $5500 per day).
- In Spautz v Butterworth,¹⁷¹ Mr Spautz was awarded $75 000
  in damages for his wrongful imprisonment as a result of failing to pay a fine.
  Mr Spautz spent 56 days in prison and his damages award reflects the length of
  his incarceration. His time in prison included seven days in solitary
  confinement. This is an award for approximately $1400 per day.

Recommendation that compensation be paid

(a) Compensation should be paid for Mr El Masri’s arbitrary
detention after 16 July 2005

I have found Mr El Masri should have been released by 16
July 2005, following the decision in Nystrom on 1 July 2005. The failure
to release him from detention was inconsistent with his right not to be
arbitrarily detained. In my view, his detention was unlawful.
The failures to act promptly were also inconsistent with
Mr El Masri’s right not to be arbitrarily detained. It is not
appropriate for any compensation to be discounted because the effect upon
Mr El Masri of his prolonged detention did not diminish with
time. In his case, his ongoing detention was detrimental to his mental health.
After 16 July 2005, Mr El Masri spent 90 days in detention
until his release on 14 October 2005.
I consider that the Commonwealth should pay to
Mr El Masri an amount of compensation to reflect his loss of
liberty, humiliation and the mental suffering caused by his ongoing detention.
The Complainant has not made submissions on any specific loss that he has
suffered or on an appropriate sum by way of compensation. Assessing compensation
in such circumstances is difficult and requires a degree of judgment. Taking
into account the guidance provided by the decisions referred to above
I consider that payment of compensation in the amount of $90 000 is
appropriate for this aspect of the complaint.

(b) Compensation
should be paid for Mr El Masri’s arbitrary detention on 28 November 2006

I have found that Mr El Masri’s detention on
28 November 2006 was also unlawful and caused by a failure to update
Departmental records, an act that was contrary to Mr El Masri’s
right not to be arbitrarily detained.
I find that the circumstances of Mr El Masri’s
detention on 28 November 2006 were such as to cause him mental
suffering, humiliation and significant indignity. I recommend that the
Commonwealth pay Mr El Masri $5000 for this
incident.

(c) Compensation should be paid in respect of the
failure to treat Mr El Masri with humanity and dignity

I have also made a finding that the Department’s actions in
subjecting Mr El Masri to prolonged detention in the restrictive
conditions of MSU exacerbated the negative impact that his ongoing detention was
having on his mental health and, in particular, his schizoaffective disorder. In
this context, there was a breach of art 10(1) of the ICCPR.
I consider that it is appropriate that compensation of $10 000 is
awarded for this breach.

Apology

In addition to compensation, I consider that it is appropriate that the
Commonwealth provide a formal written apology to Mr El Masri for
the breaches of his human rights identified in this report. Apologies are
important remedies for breaches of human rights. At least to some extent, they
alleviate the suffering of those who have been
wronged.¹⁷²

Other recommendations

I recommend that the Migration Series Instructions 411: Establishing
immigration status – in the field and in detention is amended to
require officers promptly and fully to reassess the lawfulness of a
person’s detention where the basis for that person’s detention may
be affected by recent legal developments, including court decisions affecting a
class of people.

The Department’s response to the
recommendations

By letter dated 25 June 2009, the Department was requested to advise the
Commission within 14 days 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.
By letter dated 10 July 2009 the Department provided the following response
to my notice of recommendations:

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

The department acknowledges the President’s recommendation to:

pay compensation in the amount of $105,000.00 to Mr El Masri;

provide a formal written apology to Mr El Masri for the
breaches of human rights identified in the report; and

amend the Migrations Series Instructions 411: Establishing immigration
status – in the field and in detention to require officers to reassess
the lawfulness of a person’s detention where the basis for that
person’s detention may be affected by recent legal developments, including
court decisions affecting a class of people.

The issue of
compensation is complicated by Mr El Masri’s ongoing damages
claim in the NSW Supreme Court involving the Commonwealth and the detention
service providers. The Commonwealth is currently considering the
President’s recommendation in light of that litigation.

The department accepts the President’s recommendation to provide a
formal written apology and we will forward you a copy once it is sent.

Migration Series Instruction 411 has been updated to require compliance and
detention staff to consider relevant case law when assessing whether or not a
person may be unlawful and liable to be detained. In recognition of the
significance of the issue, the department has also implemented a Chief Executive
Instruction (CEI 33). The CEI 33 provides direction to all staff
requiring certain processes to be followed where adverse litigation outcomes
have potential implications for detention and/or removal. The CEI requires
the involvement of departmental officials at the highest levels to ensure that
the processes outlined in the CEI are followed. A copy of CEI 33 is
enclosed for your information.

CEIs are binding on departmental staff and staff can be sanctioned under the
Australian Public Service Code of Conduct in the event of a breach.

I note the stated aim of the CEI is to ensure:
- Early identification of court decisions which have the potential to
  significantly impact on detention status and/or removal policy and procedures.
- Effective and prompt departmental response and protocols to manage such
  cases.
- Review of existing policy/procedures and effect any changes required.
The CEI provides that the litigation branch at the Department has
responsibility for reviewing all court decisions within two days of receipt of
written reasons for judgment to identify those court decisions which have the
potential to significantly impact on detention status and/or removal policy
procedures.
The CEI sets out what action must be taken upon the identification of
such a case. Importantly, upon the identification of such a case, a copy of the
judgement is to be provided to the department’s Special Counsel with a
request for his or her urgent advice on detention and/or removal implications.
The CEI also requires the Department to maintain a register of cases
identified, and in respect of each such case, copies of the advice received,
actions plans, and the report on the completion of the action plan.
At the date this report was finalised, the Department had not provided
further advice about the outcome of their consideration of my recommendation
that Mr El Masri be paid compensation. I have been provided
with a copy of the letter of apology from the Department to
Mr El Masri.

The Hon Catherine Branson QC

President

Australian Human Rights Commission

August 2009

Appendix 1

Initial submissions from the Department

On 13 January 2006, the Department provided a formal response to the
complaint which denied the allegations made by Mr El Masri. The
submissions from the Department included the following evidence:
- Incident reports relevant to Mr El Masri’s time in MSU;
- A security risk assessment for Mr El Masri;
- Mr El Masri’s Management Plans;
- Mr El Masri’s behaviour agreement;
- An undated reintegration plan;
- A copy of the daily occurrence log for the period of 29 July 2005 to 8
  August 2008;
- Video footage of the incident on 8 August 2005;
- Copies of officer report forms in relation to an earlier incident;
- Copy of teleconference minutes of a meeting on 5 September 2005 and a
  proposed community integration plan;
- Record of visits by Mrs El Masri and other family members to VIDC;
- Report of the second independent psychiatrist on 19 August 2005;
- Care plans for Mr El Masri; and
- A copy of an email of Mr El Masri’s request to see the first
  independent psychiatrist and a copy of the second independent
  psychiatrist’s subsequent report.

Submissions by
the Complainant

On 31 May 2006, the Complainant’s legal representative made
submissions in response to the Department’s submission of 13 January
2006.
On the 27 October 2006, the Complainant’s legal representative sent
two separate letters to the Commission.

Additional Complaint about
Mr El Masri’s detention on 28 November 2006

On 28 November 2006, the Complainant’s legal representative
emailed the Commission. The email stated in part that
‘Mr El Masri was woken up by Immigration Officials who then
arrested and detained him’. Mr El Masri’s legal
representative stated ‘I will be adding this to the complaint’.
On 15 December 2006, the Complainant’s legal representative made
further submissions in relation to the allegations made by the Complainant. This
included an allegation that Mr El Masri was unlawfully detained
on 28 November 2006.
On 23 May 2007, the Commission wrote to the Department seeking the
Department’s response to the Complainant’s allegations that
Mr El Masri was unlawfully detained on
28 November 2006.
On 27 July 2007, the Department provided the Commission with a response to
the allegation that Mr El Masri was wrongfully detained on
28 November 2006.

Additional submissions and evidence
provided in 2008-2009

On 4 January 2008, the Commission wrote to the Department seeking additional
information, including the Complainant’s medical file.
The Department provided a formal response to this further request for
information by letter dated 27 May 2008. This included a copy of
Mr El Masri’s medical file.
In 2008, the Commission sought and obtained the COPS entry record for
8 August 2005.
Further submissions were provided on behalf of the Complainant on
26 August 2008.
The Department provided a formal response to this further request for
information by letter dated 27 May 2008.
On 26 August 2008, the Complainant provided further submissions in response
to the further material provided by the Department.
On 24 September 2008, the Commission wrote to the Complainant seeking
further submissions in response to a statement of issues in dispute.
On 24 October 2008, the Department provided further submissions.
On 3 November 2008, the Complainant provided further submissions in
response.
On 26 February 2009, the Complainant provided submissions in response to the
President’s tentative view.
On 27 February 2009, the Department provided submissions in response to the
President’s tentative view.
On 17 April 2009, the Department provided further submissions in response to
the President’s tentative view.

Appendix 2 Functions of the 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).

References

The relevant Department has since been renamed twice and is currently called
the Department of Immigration and Citizenship (DIAC).
Opened for signature 16 December 1966, 999 UNTS 171 (entered into force
3 January 1976).
[2005] FCAFC 121 (Moore and Gyles JJ; Emmett J dissenting).
Submissions by the Department, dated 27 February 2009, [4].
[2005] FCAFC 121.
Submission by the Department, dated 17 April 2009, Attachment 1.
Submission by the Department, dated 17 April 2009, Attachment 2.
Email from Ms Byers to the Director of Detention Case Co-ordination at the
Department of Immigration and Citizenship, dated 28 September 2005.
Submissions by the Department, dated 17 April 2009, Attachment 3.
El Masri v Minister for Immigration and Multicultural and Indigenous
Affairs [2005] FCA 1685.
Ibid [2].
Minister for Immigration and Multicultural and Indigenous Affairs v
Nystrom (2006) 228 CLR 566 (‘Nystrom’).
Report of complaints by immigration detainees against the Commonwealth of
Australia (2009) AusHRC 40 [76]; Report of a complaint by Mr Huong Nguyen
and Mr Austin Okoye against the Commonwealth of Australia and GSL (Australia)
Pty Ltd (2007) AusHRC 39, [51]-[55].
(1997) 78 FCR 208.
Secretary, Department of Defence v HREOC, Burgess & Ors (1997) 78
FCR 208.
This conclusion has been reach in previous reports. See for example, Report of complaints by immigration detainees against the Commonwealth of
Australia (2009) AusHRC 40 [73]-[75]; Report of a complaint by Mr Huong
Nguyen and Mr Austin Okoye Against the Commonwealth of Australia and GSL
(Australia) Pty Limited (2007) AusHRC 39 [48]-[49]; Report of an inquiry
into a complaint by Mr AV of a breach of his human rights whilst in immigration
detention (2006) AusHRC 35, 8.2.1; also see 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) Aus HRC 21, 4.2.
United Nations Human Rights Committee, General Comment 8, Article 9
(Sixteenth session, 1982), Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.6
(2003) 130, [1]. See also A v Australia, Communication No
560/1993, UN Doc CCPR/C/59/D/560/1993; C v Australia, Communication No
900/1999 UN Doc CCPR/C/76/D/900/1999; Baban v Australia, Communication No
1014/2001 UN Doc CCPR/C/78/D/1014/2001.
Communication No 305/1988, UN Doc CCPR/C/39/D/305/1988.
Ibid [5.8].
Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993.
Ibid [9.2].
(2003) 126 FCR 54.
Ibid [152].
[2000] 2 NZLR 65.
Ibid [40], [42], references listed at [41], [42].
[2001] 3 NZLR 433.
Ibid [34].
Saadi v United Kingdom [2008] ECHR 80, [67].
Ibid [69].
See for example, A v Australia, Communication No 560/1993, UN Doc
CCPR/C/59/D/560/1993 (30 April 1997), [9.2].
United Nations Human Rights Committee, General Comment 31, Nature of the
General Legal Obligation on States Parties to the Covenant, UN Doc
CCPR/C/21/Rev.1/Add.13 (2004) [6]. See also Handyside v United Kingdom [1976] ECHR 5, [48]-[49]; The Sunday Times v the United Kingdom [1979]
ECHR 1, [62].
Communication No 631/1995, UN Doc CCPR/C/67/D/631/1995,
[6.3].
Comments of Ms Cecilia Medina in an individual opinion concurring with the
majority decision given in Tatiana Zheludkova v Ukraine, Communication No
726/1996 UN Doc CCPR/C/76/D/726/1996.
United Nations Human Rights Committee, General Comment 21, Article 10
(Forty-fourth session, 1992), Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.6
(2003) 153; United Nations Human Rights Committee, General Comment 9, Article
10 (Sixteenth session, 1982), Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.6
(2003) 131.
United Nations Human Rights Committee, General Comment 21, Article 10
(Forty-fourth session, 1992), Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.6
(2003) 153.
See United Nations Human Rights Committee, General Comment 21, Article 10
(Forty-fourth session, 1992), Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.6
(2003) 153. The UNHRC also considered this relevant in Jensen v
Australia, where it found a complaint of both art 7 and art 10 inadmissible
because it failed to demonstrate that the treatment departed from that of an
ordinary prisoner.
Taunoa v Attorney-General [2008] 1 NZLR 429.
Miguel Angel Estrella v Uruguay, Communication No
74/1980, UN Doc CCPR/C/18/D/74/1980.
Tatiana Zheludkova v Ukraine, Communication No 726/1996, UN
Doc CCPR/C/76/D/726/1996.
Michael and Brian Hill v Spain, Communication No 526/1993, UN Doc
CCPR/C/59/D/526/1993 (1997).
See Daley v Jamaica, Communication No 750/1997, UN Doc
CCPR/C/63/D/750/1997 (1998), [7.6]; Teesdale v Trinidad and Tobago,
Communication No 677/1996, UN Doc CCPR/C/74/D/677/1996 (2002), [9.1].
McTaggart v Jamaica, Communication 748/1997, UN Doc
CCPR/C/67/D/748/1997 (1999), [8.5].
Report of Complaints by immigration detainees against the Commonwealth of
Australia (2009) AusHRC 40.
Ibid [106].
The Standard Minimum Rules were approved by the United Nations Economic and
Social Council in 1957. They were subsequently adopted by the United Nations
General Assembly in resolutions 2858 of 1971 and 3144 of 1983: UN Doc
A/COMF/611, Annex 1.
The Body of Principles were adopted by the United Nations General Assembly
in resolution 43/173 of 9 December 1988 Annex: UN Doc A/43/49 (1988).
United Nations Human Rights Committee, General Comment 21, Article 10
(Forty-fourth session, 1992), Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.6
(2003) 153. See also Mukong v Cameroon, Communication No 458/1991, UN Doc
CCPR/C/51/458/1991, [9.3]. The Body of Principles apply to all persons under any
form of detention or imprisonment. The Standard Minimum Rules are directed at
the treatment of prisoners and the management of penal institutions. Although
immigration detention facilities are not penal institutions in the sense that
they do not house convicted criminals or people charged with a criminal offence,
the Standard Minimum Rules are expressed to set out minimum conditions which are
accepted as suitable by the United Nations for the general management of
institutions housing all categories of prisoner.
United Nations Principles for the protection of persons with mental illness
and the improvement of mental healthcare, Adopted by General Assembly Resolution
46/119 of 17 December 1991, principle 7.1; see also principle 20.
M Nowak, UN Covenant on Civil and Political Rights: CCPR
commentary (2^nd ed, 2005) 247-8.
C v Australia, Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999
(2002), [8.4]. Commentators have suggested that there is ‘little
doubt’ that the majority’s decision was linked with its finding that
the detention was arbitrary. S Jospeh, J Schultz and M Castan, The
International Covenant on Civil and Political Rights: Cases, materials and
commentary (2^nd ed, 2004) [9.51].
Principle 15: ‘Notwithstanding the exceptions contained in principle
16, paragraph 4, and principle 18, paragraph 3, communication of the detained or
imprisoned person with the outside world, and in particular his family or
counsel, shall not be denied for more than a matter of days.’
M Nowak, UN Covenant on Civil and Political Rights: CCPR commentary (2^nd ed, 2005) 518.
Report of a complaint by Mr Huong Nguyen and Mr Austin Okoye against the
Commonwealth of Australia and GSL (Australia) Pty Ltd (2007) AusHRC 39,
[80]-[88].
United Nations Human Rights Committee, General Comment 16 (Twenty-third
session, 1988), Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.6 (2003) 142 (The
right to respect of privacy, family, home and correspondence, and protection of
honour and reputation), [4].
S Joseph, J Schultz and M Castan, The International Covenant on Civil and
Political Rights: Cases, materials and commentary (2^nd ed, 2004)
482-3.
Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992.
Ibid [8.3]. Whilst this case concerned a breach of art 17(1) in relation to
privacy, these comments would apply equally to an arbitrary interference with
family.
Communication No 74/1980, UN Doc CCPR/C/OP/2 (1990), 93.
Ibid [9.2].
(1938) 60 CLR 336, 362 (Dixon J).
(1992) 110 ALR 449, 449-50 (Mason CJ, Brennan, Deane and
Gaudron JJ).
[2005] FCAFC 121.
El Masri v Minister for Immigration [2003] FMCA 344 (19
August 2003) (‘El Masri (No 2)’).
Minister for Immigration and Multicultural and Indigenous Affairs v
Nystrom [2006] HCA 50.
[2008] FCAFC.
This notice must set out the reasons for the decision. A failure to comply
with these notice requirements does not affect the validity of a decision to
cancel a visa under s 501(2). See s 501G.
El Masri (No 2) [2003] FMCA 344. An appeal against this decision
was not allowed as it was out of time: El-Masri v Minister for
Immigration & Multicultural & Indigenous Affairs [2004] FCA 742 (11
June 2004).
An officer is defined by s 5 of the Migration Act to include an officer of
the Department and a member of the Australian Federal Police or the Police Force
of a State. Sections 13 and 14 of the Migration Act define lawful and non-lawful
citizens. Section 13 provides that a lawful non-citizen is a non-citizen in the
migration zone who holds a visa that is in effect. Under s 14 an unlawful
non-citizen is a citizen in the migration zone who is not a lawful non-citizen.
(2002) 117 FCR 566; [2002] FCA 433 (2002).
Ibid, 569, [6] (Gray and Lee JJ).
Ibid.
Ibid, 570, [9].
Ibid, 570-571.
Ibid, 572-573, [19].
Ibid, 573, [20].
In Goldie v Commonwealth of Australia & Ors [2004] FCA 156
(‘Goldie (No 2)’), Mr Goldie was awarded damages of $22 000
for false imprisonment being wrongful arrest and detention under the Migration
Act.
(2005) 222 CLR 612.
(2005) 222 CLR 612, 626, [40] (Gleeson CJ, Gummow, Hayne, Callinan and
Heydon JJ, McHugh and Kirby JJ dissenting).
Ibid, 622 [28] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).
Ibid.
Ibid, 628, [51].
[2007] FCA 1500.
(2001) 207 CLR 391.
(2003) 218 CLR 28.
[2007] FCA 1500, [8].
Ibid.
Ibid [11].
[MSI 411.1].
[MSI 411.1].
[MSI 411.1].
[MSI 411.10].
(2008) FCAFC 132.
Submissions by Michaela Byers, dated 3 November 2008.
Submissions by Michaela Byers, dated 27 October 2006 and 15 December 2006;
see also submissions dated 3 November 2008 where Ms Byers submitted that
‘no review of Mr El Masri’s case was undertaken after his
initial processing of his detention’.
Nystrom v Minister for Immigration and Multicultural and Indigenous
Affairs [2005] FCAFC 121.
Email from the Department to the Commission, dated 27 July 2007.
Submissions of the Department, dated 17 April 2009; see also submissions of
the Department, 27 February 2009, [12].
Submissions by the Department, dated 17 April 2009, [4].
Submissions by the Department, dated 17 April 2009, [9]-[12].
Submissions by the Department, dated 17 April 2009, [12].
Submissions by the Department, dated 27 February 2009, [8].
Submissions by the Department, dated 27 February 2009, [16].
Submissions by the Department, dated 17 April 2009, [12]-[13].
Submissions by the Department, dated 17 April 2009, Attachment 1.
Submissions by the Department, dated 17 April 2009, Attachment 1.
Submissions by the Department, dated 17 April 2009, Attachment 2.
Submissions by the Department, dated 17 April 2009, [11].
Submissions by the Department, dated 17 April 2009, Attachment 3.
Submissions by the Department, dated 27 February 2009, [8].
Submissions by the Department, dated 17 April 2009, [23]-[25].
Submissions by the Department, dated 17 April 2009, [24].
See further email from Michaela Byers to the Commission, dated 4 May
2007.
El Masri v Minister for Immigration and Multicultural and Indigenous
Affairs [2005] FCA 1685.
Ibid [2].
Minister for Immigration and Multicultural and Indigenous Affairs v
Nystrom [2006] HCA 50.
Email from the Department to the Commission, dated 27 July 2007; see also
undated letter from the Department to Michaela Byers, December 2006.
Email from the Department to the Commission, dated 27 July 2007.
Ibid.
‘Villawood Immigration Detention Centre (VIDC) – Sydney
NSW’, Department of Immigration and Citizenship
<http://ww.immi.gov.au/detention/facilities_villawood.htm> at 7 November
2005.
Ibid.
Management Plan for Detainees in Management Unit, Ahmed Salah El Masri,
dated 30 July 2005.
Referral by the second independent psychiatrist to the VIDC doctor, dated 3
May 2005.
Letter from the first independent psychiatrist to the VIDC Doctor, dated 17
May 2005. The first independent psychiatrist also stated that
Mr El Masri told him ‘there is hope that he will not be
deported and likely to be released from Villawood Detention Centre into the
community although he is not sure when this will happen’.
Report by the Senior Psychologist at VIDC, dated 25 May 2005.
Report by the Senior Psychologist at VIDC, dated 6 June 2006.
Letter from the first independent psychiatrist, dated 24 June 2005.
Letter from the VIDC Doctor (undated).
These four reasons are identified in the Department’s response to the
Commission’s questions, dated 27 May 2008.
Some of these incidents, however, occurred at a time prior to
Mr El Masri’s placement in MSU, some incidents dating back as
early as April 2005; others concern incidents that occurred shortly before his
placement in MSU (July 2005); and others during his time in MSU.
Security Risk Assessment for VW2261: El Masri, Ahmad Salah.
See also the Department’s response to the Commission’s
questions, dated 27 May 2008, Attachment 0 (5 September 2005) and P (29 August
2005).
The Department’s response to the Commission’s questions, dated
27 May 2008, Attachment 0 (5 September 2005).
The Department’s response to the Commission’s questions, dated
27 May 2008, Attachment 0 (5 September 2005) and P (29 August 2005).
Migration Act 1958 (Cth), s 197AB.
Migration Act 1958 (Cth), s 197AE.
The Department’s response to the Commission’s questions, dated
27 May 2008.
It is noted that the Migration Amendment (Detention Arrangements) Act
2005 (Cth) gave the Minister new powers to grant a visa to a person in
immigration detention where the Minister is satisfied that it is in the public
interest to do so. See Migration Act 1958 (Cth), s 195A. The explanatory
memorandum states that the new provision is intended to ‘be used to
release a person from detention where it is not in the public interest to
continue to detain them’.
See further the Department response to the Commission dated 27 May 2008,
question 4.
Letter from the first independent psychiatrist dated 16 August 2005.
Report by the second independent psychiatrist, and psychologist, p 1, dated
18 August 2005. It is noted that although this report is dated 18 August 2005,
the report states the second independent psychiatrist’s examination of
Mr El Masri took place on 19 August 2005. See also the
Department’s response to the Commission’s questions, dated 27 May
2008, Attachment 0 (5 September 2005) and P (29 August 2005).
Report by the second independent psychiatrist and psychologist, pp 11-12,
dated 18 August 2005.
Report by the second independent psychiatrist and psychologist, p 13, dated
18 August 2005.
Ibid.
Ibid.
The Department’s response to the Commission’s questions, dated
27 May 2008.
Letter from the Department to the Commission, dated 13 January 2006.
See also the Department’s response to the Commission’s
questions, dated 27 May 2008, Attachment 0 (5 September 2005) and P (29 August
2005).
Management Plan for Detainees in Management Unit, Ahmed Salah El Masri, 10
August 2005, updated 30 August 2005. Page 3 of the Plan states ‘Detainee
El Masri was visited by the Centre Management Team and advised there would
be no changes to his current status at the MSU for a period of at least
8 days’.
The Department’s response to the Commission’s questions, dated
27 May 2008.
Letter from the Department to the Commission, dated 13 January 2006,
Attachment L.
Discharge summary for Mr Ahmed El Masri, dated 14 October 2005.
The Department’s response to the Commission’s questions, dated
27 May 2008.
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, (2002) AusHRC 24,
[4.4.1.1]. See also 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) AusHRC 18, [15.1].
Officer report forms also record that earlier on 8 August 2005,
Mr El Masri produced a sharpened toothbrush from his underwear.
He then reportedly told a psychologist he was not going to use the toothbrush to
harm himself. Mr El Masri handed the tooth brush to the General
Deputy Manager. He is also recorded as having said ‘I want to give to
her so I can show that I’m over it now and want to get out the
Management Unit’: see further letter from the Department to the
Commission, dated 13 January 2006.
NSW Police Service, Event Ref E 24901705, created 17/8/2005.
The Department’s response to the Commission’s questions, dated
27 May 2008.
Ibid.
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s
29(2)(a).
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s
29(2)(b).
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s
29(2)(c).
Email from the Complainant’s solicitor to the Commission, dated 18 May
2009.
Peacock v The Commonwealth (2000) 104 FCR 464, 483 [55] (Wilcox
J).
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217, 239 (Lockhart
J).
Trobridge v Hardy (1955) 94 CLR 147, 152 (Fullagar J); see also Murray v Ministry of Defence [1988] 1 WLR 692, 701-703; Re Bolton; Ex
parte Beane (1987) 162 CLR 514, 523 (Brennan J); and Sadler & State
of Victoria v Madigan [1998] VSCA 53 (1 October 1998), [51].
Cassell & Co Ltd v Broome (1972) AC 1027, 1124; Spautz v
Butterworth & Anor (1996) 41 NSWLR 1,

14-15 (Clarke JA); Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 (22 November
1999], [87].
Spautz v Butterworth & Anor (1996) 41 NSWLR 1, 15-17 (Clarke JA); Hall v A & A Sheiban Pty Limited (1989) 20 FCR 217, 239-240 (Lockhart
J).
Taylor v Ruddock (unreported, 18 December 2002, NSW District Court
(Murrell DCJ)).
Ruddock v Taylor (2003) 58 NSWLR 269.
Ruddock v Taylor (2003) 58 NSWLR 269, [48]-[49].
[2004] FCA 156.
Spautz v Butterworth & Anor (1996) 41 NSWLR 1 (Clarke JA).
D Shelton, Remedies in International Human Rights Law (2000)
151.

Glossary

Commission – Human Rights and Equal Opportunity Commission

(now the Australian Human Rights Commission)

Complainant – Mrs Cheryle El Masri on behalf of Mr Ahmad El
Masri

Department – the Department of Immigration and Citizenship

(formerly the Department of Immigration and Multicultural and Indigenous
Affairs)

GSL – GSL (Australia) Pty Ltd

HREOC Act – Human Rights and Equal Opportunity Act 1986 (Cth)

ICCPR – International Covenant on Civil and Political
Rights

UNHRC – United Nations Human Rights Committee

MSI – Migration Series Instructions

MSU – Management Support Unit

Nystrom – Nystrom v Minister for Immigration
and Multicultural and Indigenous Affairs [2005] FCAFC 121

SASH – Suicide and Self Harm (Observations)

The first independent psychiatrist –
Mr El Masri’s treating psychiatrist

The second independent psychiatrist – The independent
psychiatrist and psychologist who examined Mr El Masri and made
recommendations in the report dated 18 August 2005.

VIDC – Villawood Immigration Detention Centre

Further Information

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Report No. 41: El Masri v Commonwealth (Department of Immigration and Citizenship) (2009)

El Masri v Commonwealth (Department of Immigration and Citizenship)

Report into unlawful and arbitrary detention and the right of people in detention to humane treatment

(2009) AusHRC 41

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Contents

Introduction

Part A : Structure of this report

Part B: Summary of findings and recommendations

(a) Detention of Mr El Masri from 16 July 2005 to 14 October 2005 inconsistent with art 9(1) of the ICCPR

(c) Detention of Mr El Masri on 28 November 2006 inconsistent with art 9(1) of the ICCPR

(d) Other allegations of breaches of human rights not upheld

Part C: The complaints by Mr El Masri

Background

Findings of fact

Part D: The Commission’s human rights inquiry and complaints function

The Commission can inquire into acts or practices done by or on behalf of the Commonwealth

‘Human rights’ relevant to these complaints

(a) Article 9(1) of the ICCPR

(b) Article 10(1) of the ICCPR

(c) Article 17(1) and 23(1) of the ICCPR

Forming my opinion

Part E: Mr El Masri’s detention from 14 November 2002 to 14 October 2005

Complaint

Chronology of Mr El Masri’s detention

Relevant statutory provisions in the Migration Act

(a) The power to cancel Mr El Masri’s visa

(b) The power to detain Mr El Masri

(c) Goldie v Commonwealth

(d) Ruddock v Taylor

(e) Coleman v Minister for Immigration & Citizenship

(f) Reviewing the basis for detention

The initial decision to detain Mr El Masri on 14 November 2002

The ongoing detention of Mr El Masri after the decision in Nystrom

(a) Determining whether Mr El Masri held an absorbed person visa

(b) Steps taken by the Department to reassess the reasonableness of the suspicion Mr El Masri was an unlawful non-citizen

Conclusion: detention after 16 July 2005 was inconsistent with Mr El Masri’s human rights

(a) Was Mr El Masri’s ongoing detention lawful?

(b) Mr El Masri’s detention became unlawful when the suspicion that he was an unlawful non-citizen could no longer be reasonably maintained

(c) Was Mr El Masri’s ongoing detention arbitrary?

(d) The failure of the Department to act was inconsistent with Mr El Masri’s right not to be arbitrarily detained

Part F: The detention of Mr El Masri on 28 November 2006

Complaint

Findings of Fact

Conclusion: Mr El Masri’s detention on 28 November 2006 breached his right not to be arbitrarily detained

(a) The failure to keep adequate records was inconsistent with Mr El Masri’s right not to be arbitrarily detained

(b) Mr El Masri’s detention was unlawful because the suspicion he was an unlawful non-citizen was not reasonable

Part G: The detention of Mr El Masri in MSU

Complaint

The purpose of MSU

Findings of fact concerning Mr El Masri’s medical conditions

(a) Mr El Masri had a number of identified medical conditions, including schizoaffective disorder

(b) Mr El Masri had a long history of mental health problems

Justification by the Department for placing Mr El Masri in MSU

Consideration by the Department of alternatives to detaining Mr El Masri in MSU

Findings about Mr El Masri’s access to medical care

Findings about Mr El Masri’s mental health after being placed in MSU

(a) Evidence about Mr El Masri’s mental health in MSU

(b) Findings about the impact of MSU on Mr El Masri’s mental health

Conclusion: Mr El Masri’s treatment in MSU breached his right to be treated with humanity and dignity

(a) The conditions of Mr El Masri’s prolonged detention in MSU breached art 10(1) of the ICCPR

(b) Unnecessary to make separate determination about whether detention in MSU breached art 9(1)

Part H: Use of force on 8 August 2005

Complaint

Justification of the use of force by the Department

Evidence about the use of force

(a) The video recording

(b) Medical reports

(c) Police records

Conclusion: no breach of human rights

Part I: Restrictions on Mr El Masri’s telephone calls

Complaint

Evidence of restrictions placed on phone calls

Conclusion: no breach of human rights

Part J: Visits by Mr El Masri’s family

Complaint

Evidence about family visits to Mr El Masri

Conclusion: no breach of human rights

Part K: Findings and recommendations

Power to make recommendations

Report into unlawful and arbitrary detention and the right of people in
detention to humane treatment

Part A : Structure of this
report

Part B: Summary of findings
and recommendations

(a) Detention of Mr El Masri from 16 July 2005 to 14 October 2005
inconsistent with art 9(1) of the ICCPR

(c) Detention of Mr El Masri
on 28 November 2006 inconsistent with art 9(1) of the ICCPR

(d) Other allegations of breaches of human rights not
upheld

Part C: The complaints by
Mr El Masri

Part D: The Commission’s human rights inquiry and
complaints function

The Commission can inquire into acts or
practices done by or on behalf of the Commonwealth

‘Human rights’ relevant to
these complaints

(a) Article 9(1) of the
ICCPR

Part E: Mr El Masri’s detention from
14 November 2002 to 14 October 2005

Chronology of Mr El Masri’s
detention

(f) Reviewing the basis for
detention

The initial decision to detain Mr El Masri on
14 November 2002

The
ongoing detention of Mr El Masri after the decision in
Nystrom

(a) Determining whether Mr El Masri held an absorbed person
visa

(b) Steps taken by the Department to reassess the reasonableness
of the suspicion Mr El Masri was an unlawful non-citizen

Conclusion: detention after
16 July 2005 was inconsistent with Mr El Masri’s human
rights

(b) Mr El Masri’s detention became unlawful
when the suspicion that he was an unlawful non-citizen could no longer be
reasonably maintained

(c) Was Mr El Masri’s ongoing detention
arbitrary?

(d) The failure of the Department to act was
inconsistent with Mr El Masri’s right not to be arbitrarily
detained

Part F: The detention of
Mr El Masri on 28 November 2006

Conclusion:
Mr El Masri’s detention on 28 November 2006 breached
his right not to be arbitrarily detained

(a) The failure to keep adequate
records was inconsistent with Mr El Masri’s right not to be
arbitrarily detained

(b) Mr El Masri’s
detention was unlawful because the suspicion he was an unlawful non-citizen was
not reasonable

Part
G: The detention of Mr El Masri in MSU

Findings of fact concerning Mr El Masri’s
medical conditions

(a) Mr El Masri had a number of identified medical conditions, including
schizoaffective disorder

Justification by the Department for placing
Mr El Masri in MSU

Consideration by the Department of
alternatives to detaining Mr El Masri in MSU

Findings about Mr El Masri’s access to medical
care

Findings about Mr El Masri’s mental health
after being placed in MSU

(a) Evidence about Mr El Masri’s
mental health in MSU

(b) Findings about the impact of
MSU on Mr El Masri’s mental health

Conclusion: Mr El Masri’s treatment in MSU
breached his right to be treated with humanity and dignity

(a) The conditions of Mr El Masri’s prolonged detention in MSU
breached art 10(1) of the ICCPR

(b) Unnecessary
to make separate determination about whether detention in MSU breached art
9(1)

Part H: Use of force on
8 August 2005

Evidence about the use of
force

Part I: Restrictions on
Mr El Masri’s telephone calls

Conclusion: no breach of
human rights

Part J: Visits by
Mr El Masri’s family

Evidence about family visits to
Mr El Masri

Part
K: Findings and recommendations

(a) Compensation should be paid for Mr El Masri’s arbitrary
detention after 16 July 2005

(b) Compensation
should be paid for Mr El Masri’s arbitrary detention on 28 November 2006

(c) Compensation should be paid in respect of the
failure to treat Mr El Masri with humanity and dignity

The Department’s response to the
recommendations

Submissions by
the Complainant

Additional Complaint about
Mr El Masri’s detention on 28 November 2006

Additional submissions and evidence
provided in 2008-2009