2011
Mr Toro-Martinez v
Commonwealth of Australia (Department of Immigration
and Citizenship)
......
Report into arbitrary detention, the right of people
in detention to protection of the family and freedom
from arbitrary interference with the family
[2011] AusHRC 44
May 2011
The Hon Robert McClelland MP
Attorney General
Parliament House
Canberra ACT 2600
Dear Attorney
I attach my report of an inquiry into the complaint made pursuant to section 11(1)(f)(ii) of the Australian Human Rights Commission Act 1986 (Cth) by
Mr Toro-Martinez.
I have found that the acts and practices of the Commonwealth breached
Mr Toro-Martinez’s right not to be subject to arbitrary detention and his right to protection of and freedom from arbitrary interference with his family. These fundamental human rights are protected by articles 9(1), 17(1) and 23(1) of the International Covenant on Civil and Political Rights.
By letter dated 19 April 2011 the Department of Immigration and Citizenship provided the following response to my findings and recommendations:
The Department's response on behalf of the Commonwealth of Australia to the findings and recommendations of the AHRC with regard to
Mr Toro-Martinez
1. That payment of compensation in the amount of $100,000 is appropriate
While we note your findings, in the Department's view Mr Toro-Martinez has been and continues to be detained lawfully in accordance with the Migration Act 1958 (Cth) (Migration Act) and his detention has not been and is not arbitrary.
Accordingly, the Department advises the Commission that there will be no action taken with regard to this recommendation.
2. That it is appropriate that the Commonwealth provide a formal written apology to Mr Toro-Martinez for the breaches of his human rights identified in the report
The Department disagrees with this recommendation.
While there was a period of time between Mr Toro-Martinez making his request for community detention in March 2009 and the Minister’s intervention in September 2009, this is not an unreasonable period of time given the complexity of the case. There is no obligation to consider a request for community detention and any residence determinations are made at the discretion of the Minister who takes a range of considerations into account. There is no formal application process for community detention.
The Department advises the Commission that there will be no action taken with regard to this recommendation.
3. That the guidelines to the Minister’s residence determination power should be amended
The Department notes your recommendations regarding the guidelines for the Minister’s residence determination power. Your comments will be taken into account in any future consideration that may be given to amending the section 197AB Ministerial guidelines.
Yours sincerely
Catherine Branson
President
Australian Human Rights Commission
Contents
1 Introduction 5
2 Summary 5
3 The complaint by Mr Toro-Martinez 7
3.1 Background 7
3.2 Findings of Fact 8
4 The Commission’s human rights and inquiry and complaints function 9
4.1 The Commission can inquire into acts or practices of the Commonwealth 9
4.2 ‘Human rights’ relevant to this complaint 10
(a) Article 9(1) of the ICCPR 11
(b) Articles 17(1) and 23(1) of the ICCPR 13
5 Forming my opinion 14
6 Arbitrary detention 14
7 Interference with and protection of the family 16
8 Findings and recommendations 17
8.1 Power to make recommendations 17
8.2 Consideration of compensation 18
8.3 Recommendation that compensation be paid 19
8.4 Apology 20
8.5 Policy 21
9 DIAC’s response to the recommendations 21
Appendix 1: Functions of the Commission 23
1 Introduction
1. This is a report of my inquiry into a complaint of breach of human rights made to the Australian Human Rights Commission (the Commission) by Mr Toro-Martinez. The complaint is made against the Commonwealth of Australia, Department of Immigration and Citizenship (DIAC).
2. This inquiry was undertaken pursuant to section 11(1)(f) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).
3. I have found that the failure by the Commonwealth from 6 November 2008 until 1 September 2009 to place Mr Toro-Martinez in a less restrictive form of detention than Villawood Immigration Detention Centre (VIDC) amounts to a breach of his right not to be arbitrarily detained.
4. I have also found that the failure to place Mr Toro-Martinez in a less restrictive form of detention amounted to arbitrary interference with his family and interfered with his right to protection of the family.
2 Summary
5. In 1989 Mr Toro-Martinez was granted a Transitional Permanent Visa. In November 1999 Mr Toro-Martinez was convicted of being knowingly concerned with the importation of a trafficable quantity of cocaine. He was sentenced to three years and six months imprisonment, which was increased on appeal to a period of six years imprisonment. In February 2002 Mr Toro-Martinez was convicted of being knowingly concerned in the importation of a commercial quantity of cocaine and was sentenced to
12 years and six months imprisonment.
6. In November 2001 Mr Toro-Martinez’s visa was cancelled pursuant to s501 of the Migration Act 1958 (Cth) (Migration Act). In March 2007 the cancellation of Mr Toro-Martinez’s visa was found to be affected by the decision in Sales v Minister for Immigration and Multicultural Affairs[1] and his visa was reinstated. Following amendments made to the Migration Act in March 2008, Mr Toro-Martinez’s visa was again cancelled pursuant to s501 of the Migration Act.
7. On 8 June 2008 Mr Toro-Martinez was released from prison and detained in VIDC. On 24 July 2008 Mr Toro-Martinez was found to be affected by the decision in Sales v Minister for Immigration and Citizenship[2] (Sales 2) and was released from VIDC. On 6 November 2008 Mr Toro-Martinez again became an unlawful non-citizen as a result of a change to the Migration Act and was returned to detention.
8. On 10 February 2009 Mr Toro-Martinez submitted a request to the ‘DIAC Manager’ at VIDC to be placed in community detention. On 23 March 2009 Mr Toro-Martinez wrote to the Minister and requested that he be placed in community detention. On 15 April 2009 DIAC acknowledged
Mr Toro-Martinez’s request and stated that the Minister had referred the request to DIAC for consideration. On 2 September 2009 Mr Toro-Martinez was placed in community detention.
9. I have found that Mr Toro-Martinez’s detention during the almost 10 month period from 6 November 2008 to 1 September 2009 was arbitrary in breach of his right under article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) not to be arbitrarily detained.
10. The Commonwealth had been aware for a substantial period of time that it was likely that Mr Toro-Martinez would enter the custody of DIAC at the conclusion of his non-parole period in June 2008. In addition, the Commonwealth had a further six weeks to consider how Mr Toro-Martinez might be detained in the least restrictive manner when he was first in DIAC custody from 8 June to 24 July 2008. I consider it was unreasonable for the Commonwealth to take nine months to place Mr Toro-Martinez in a less restrictive form of detention after he was returned to VIDC in November 2008.
11. Further, the Commonwealth claims that there was evidence before it that Mr Toro-Martinez was a threat to the community. I am not satisfied that the evidence to which the Commonwealth refers raises particularly complex considerations. There was evidence before the Minister to suggest that Mr Toro-Martinez did not pose a risk to the community; an individual who was considered to be a danger to the community would not have been granted parole and Mr Toro-Martinez resided in the community after being released from VIDC on 24 July 2008 without incident.
12. I have also found that the failure to place Mr Toro-Martinez in a less restrictive form of detention amounted to arbitrary interference with his family and with his entitlement to protection of the family in breach of articles 17(1) and 23(1) of the ICCPR.
13. As a result of his detention in VIDC, Mr Toro-Martinez was separated from his partner with whom he had only recently reunited after a long period of separation during his imprisonment. I have found that Mr Toro-Martinez’s detention at VIDC from 6 November 2008 to 1 September 2009 was arbitrary. In these circumstances, I also find that the interference with
Mr Toro-Martinez’s family occasioned by his detention was arbitrary.
14. I have recommended that Mr Toro-Martinez be paid a total of $100 000 in compensation and that the Commonwealth apologise to Mr Toro-Martinez. I also recommended amendments to the guidelines relating to the Minister’s residence determination power, including:
· to provide that unless DIAC is satisfied that a person in an immigration detention facility is a flight risk or poses an unacceptable risk to the Australian community that cannot be addressed through the imposition of conditions on community detention, DIAC should refer all persons to the Minister for consideration of making a residence determination as soon as practicable and in no circumstances any later than 90 days after the individual is placed in an immigration detention facility;
· to provide expressly that the existence of a criminal record is insufficient evidence of itself that an individual poses an unacceptable risk to the Australian community.
3 The complaint by Mr Toro-Martinez
3.1 Background
15. On or about 25 April 2009 Mr Toro-Martinez made a complaint to the Commission. On 29 September 2009 the Commonwealth provided a response to the complaint.
16. Mr Toro-Martinez and the Commonwealth have also had the opportunity to respond to my tentative view dated 17 August 2010. Mr Toro-Martinez provided further submissions dated 21 September 2010 and the Commonwealth provided further submissions dated 25 October 2010.
17. Mr Toro-Martinez and the Commonwealth have also had the opportunity to respond to the Notice of my inquiry into the complaint.
18. My function in investigating complaints of breaches 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.
19. 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 the international instruments and by international jurisprudence about their interpretation.
3.2 Findings of Fact
20. I consider the following statements about the circumstances which have given rise to Mr Toro-Martinez’s complaint to be uncontentious.
21. In 1989 Mr Toro-Martinez was granted a Transitional Permanent Visa.
22. On 26 November 1999 Mr Toro-Martinez was convicted of being knowingly concerned with the importation of a trafficable quantity of cocaine and sentenced to three years and six months imprisonment. On
7 June 2000 Mr Toro-Martinez’s sentence was increased on appeal to a period of six years imprisonment.
23. On 29 November 2001 Mr Toro-Martinez’s Transitional Permanent Visa was cancelled pursuant to s 501 of the Migration Act.
24. On 25 February 2002 Mr Toro-Martinez was convicted of being knowingly concerned in the importation of a commercial quantity of cocaine and was sentenced to 12 years and six months imprisonment.
25. On 13 March 2007 the cancellation of Mr Toro-Martinez’s visa was found to be affected by the decision in Sales v Minister for Immigration and Multicultural Affairs[3] and his visa was reinstated. On 10 March 2008 amendments were made to the Migration Act which affected Mr Toro-Martinez and his visa was again cancelled pursuant to s 501 of the Migration Act.
26. On 8 June 2008 Mr Toro-Martinez was released from prison and detained in VIDC.
27. On 24 July 2008 Mr Toro-Martinez was found to be affected by the decision in Sales v Minister for Immigration and Citizenship[4] (Sales 2) and was released from VIDC.
28. On 6 November 2008 Mr Toro-Martinez was returned to detention as he again became an unlawful non-citizen as a result of the change in the law effected by the Migration Legislation Amendment Act (No 1) 2008 (Cth) (Migration Amendment Act).
29. On 10 February 2009 Mr Toro-Martinez submitted a request to the ‘DIAC Manager’ at VIDC to be placed in community detention.
30. On 23 March 2009 Mr Toro-Martinez wrote to the Minister and requested that he be placed in community detention.
31. On 15 April 2009 Ms Alison Larkins, First Assistant Secretary, Compliance and Case Resolution Division, DIAC, acknowledged Mr Toro-Martinez’s request to be placed in community detention and stated that the Minister had referred the request to DIAC for consideration.
32. On 2 September 2009 Mr Toro-Martinez was placed in community detention.
4 The Commission’s human rights and inquiry and complaints function
33. Section 11(1)(f) of the AHRC Act gives the Commission the function of inquiring into any act or practice that may be inconsistent with or contrary to any human right.
34. Section 20(1)(b) of the AHRC Act requires the Commission to perform that function when a complaint is made to it in writing alleging such an act or practice.
4.1 The Commission can inquire into acts or practices of the Commonwealth
35. The expressions ‘act’ and ‘practice’ are defined in section 3(1) of the AHRC Act to include an act done or a practice engaged in ‘by or on behalf of the Commonwealth’ or under an enactment.
36. Section 3(3) of the AHRC Act also provides that a reference to, or the doing of, an act includes a reference to a refusal or failure to do an act.
37. 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 its agents.
38. As a judge of the Federal Court in Secretary, Department of Defence v HREOC, Burgess & Ors (Burgess),[5] I found that the Commission could 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 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.[6]