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Report of an inquiry into a complaint by Mr Mohammed Badraie on behalf of his son Shayan regarding acts or practices of the Commonwealth of Australia (the Department of Immigration, Multicultural and Indigenous Affairs)

HREOC Report No. 25

1. Introduction

2. Jurisidiction

3. Relevant legislation and guidelines

4. The complaint and the complainant's evidence

5. Respondent's response

6. Documentary material provided by to the Commission

7. My preliminary findings and DIMIA's response to my preliminary findings

8. Section 29 notice

9. Findings of fact

10. Elements of the inquiry

11. Whether there is an act or practice

12. Human rights under the HREOC Act

13. Shayan's experiences in Woomera

14. Shayan's detention at Villawood

15. Shayan's placement in foster care

16. Recomendations

17. Action taken by the respondent

APPENDIX A
Functions of the Human Rights And Equal Opportunity Commission in relation to human rights

APPENDIX B
Documentary Material Before the Commission

1. Introduction

This report concerns a complaint under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the "HREOC Act") to the Human Rights and Equal Opportunity Commission (the "Commission") alleging acts or practices inconsistent with or contrary to human rights. Those acts or practices allegedly occurred in connection with the detention of the complainant's son at Woomera Immigration Reception and Processing Centre ("Woomera") and the Villawood Immigration Detention Centre ("Villawood") with his family.

I have found that certain of the acts or practices complained of were inconsistent with or contrary to a number of articles of the Convention on the Rights of the Child ("CROC"). I set out my reasons below.

In my view, those findings illustrate significant flaws in Australia's treatment of children in detention centres. The child who is the subject of this complaint has witnessed events to which I am certain no Australian would wish their own child be exposed. The Commonwealth of Australia (by the Department of Immigration and Multicultural and Indigenous Affairs - "DIMIA") failed to take appropriate action to protect that child's mental and physical health, which deteriorated by reason of the traumatic events he witnessed.

I have made a number of recommendations to avoid further similar acts or practices.

I have also recommended that compensation be paid by the respondent and that a written apology be furnished, on behalf of the respondent, by the Minister for Immigration and Multicultural and Indigenous Affairs (the "Minister"). Those recommendations are directed at remedying or reducing the loss and damage suffered by the child who is the subject of this complaint. They also reflect the serious nature of the breaches involved in this matter.

Finally, I have considered and discussed material received from the respondent which indicates that, since the time of the acts or practices that are the subject of this complaint, the respondent has taken (or is in the process of taking) certain steps which partially address some of the matters upon which I have made recommendations. While I have made some further suggestions on the basis of that material, the respondent is to be commended for taking those steps.

I am disappointed that the respondent has otherwise largely rejected my recommendations. However, the respondent has sought to assure me, in the course of this inquiry, that it takes seriously its obligations under CROC. I am therefore hopeful that a considered view of this matter will lead to further constructive and systemic remedial action, so as to protect this particularly vulnerable group of people and comply with Australia's international obligations.

2. Jurisdiction

The jurisdiction of the Commission in relation to complaints of acts or practices inconsistent with or contrary to human rights in the context of the detention of unauthorised arrivals was described in detail in the Commission's report to the Attorney-General entitled Those who've come across the seas: Detention of unauthorised arrivals [1]. A description of the Commission's jurisdiction is also set out at Appendix A of this report.

3. Relevant legislation and guidelines

In order to understand the factual circumstances underlying this complaint, it is necessary to set out the relevant provisions from the Migration Act 1958 (Cth) (the "Migration Act") and from the applicable Migration Series Instruction ("MSI").

Section 5(1) of the Migration Act provides that:

detain means:
(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
detainee means a person detained.
…
immigration detention means:
(a) being in the company of, and restrained by:

(i) an officer; or

(ii) in relation to a particular detainee-another person directed by the Secretary to accompany and restrain the detainee; or

(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel-on that vessel; or
(v) in another place approved by the Minister in writing.

Section 14 of the Migration Act provides that an unlawful non-citizen is a person who is present in the "migration zone" who is not an Australian citizen and who does not hold a visa that is in effect.

Section 15 of the Migration Act provides (for the avoidance of doubt) that if a person is in the migration zone and their visa is cancelled then, upon cancellation, that person becomes an unlawful non-citizen, unless immediately after the cancellation the former holder holds another visa that is in effect.

Section 189 of the Migration Act provides for the detention of unlawful non-citizens in the following manner:

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.

If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a) is seeking to enter the migration zone; and
(b) would, if in the migration zone, be an unlawful non-citizen;

the officer must detain the person.

Section 196 of the Migration Act provides that, once detained, an unlawful non-citizen must be kept in immigration detention unless removed from Australia , deported or granted a visa.

Section 417 of the Migration Act provides (in part):

(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

(2) In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

(3) The power under subsection (1) may only be exercised by the Minister personally.

…..
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

"Tribunal", for the purposes of that provision, means the Refugee Review Tribunal (the "RRT").

The Minister has issued guidelines regarding the possible exercise of the powers set out in section 417 of the Migration Act. Those guidelines are contained in MSI 225 entitled "Ministerial Guidelines for the Identification of Unique or Exceptional Cases Where it May Be in the Public Interest to Substitute a More Favourable Decision Under S345, 351, 391, 417, 454 of the Migration Act 1958" ("MSI 225").

Included amongst the factors to be considered to determine whether a case involves "unique or exceptional circumstances" sufficient to justify the use of the powers conferred by section 417 are circumstances that:

…..may bring Australia's obligations as a signatory to the Convention on the Rights of the Child (CROC) into consideration." (see paragraph 4.2.3 - which goes on to reproduce article 3 of CROC).

MSI 225 also specifies that:

4. The complaint and the complainant's evidence

Mr Badraie's complaint was received by the Commission on 3 September 2001.

Mr Badraie states that he is an Iranian national who is seeking a Protection Visa ("PV"). He and his family were detained at Woomera from 27 March 2000 until 3 March 2001, when they were transferred to Villawood.

At the time that his complaint was lodged, Mr Badraie's wife and daughter were also detained in Villawood. They have both been since released on Bridging Visas ("BV"s).

Mr Badraie alleges that the rights of his son, Shayan, have been breached by the respondent. Shayan was born 4 January 1995 (meaning that he was 5 and 6 years old when the matters that are the subject of this complaint took place). Mr Badraie alleges that the conditions of detention at Woomera were such that his son developed a mental illness after witnessing matters such as riots, detainees harming themselves and violence by detainees and officers of Australasian Correctional Management ("ACM"). He also states that after the family's transfer to Villawood, Shayan witnessed a further incident of self harm. Shayan then stopped eating, taking liquids and talking.

Shayan was sent to The Children's Hospital at Westmead ("Westmead") on 15 May 2001. Mr Badraie has provided evidence to show that various child psychologists recommended that Shayan should not be sent back to a detention environment and also that he should remain with his family: in particular, his father with whom he had a strong bond.

From 12 July 2001 until 9 August 2001, Shayan was readmitted to Westmead Hospital for rehydration on a number of occasions and each time was returned to Villawood.
Shayan was placed into a foster care arrangement on 23 August 2001 where he remained until 16 January 2002. Mr Badraie states that those arrangements were put in place without Mr Badraie's permission.

Mr Badraie made an application for a PV for himself and for his family, which was rejected by the RRT. His application for review of the RRT's decision was dismissed by the Federal Court at first instance. That decision was overturned by the Full Federal Court on 8 April 2002 and the matter was remitted back to the RRT.

5. Respondent's response

A response was received from DIMIA on behalf of the respondent on 14 March 2002.

The respondent denies that the complainant's human rights have been breached.

The respondent states that the Australian Government takes its international obligations very seriously and is concerned that children held in detention receive appropriate care.

The respondent states that all members of the family unit who are included in an application are applicants for PVs in their own right with the opportunity to make separate claims if they wish. The respondent states that this step in the process is consistent with the provisions of CROC as it is intended to ensure, among other things, full exploration of all claims including those claims made by applications relevant to children. The respondent states that Shayan's claim was included in his parents' PV application of 26 June 2000.

The respondent states that in June 2001, the Minister decided not to exercise his power under section 417 of the Migration Act to grant PVs to the Badraie family. They were informed of this in a letter dated 26 June 2001. The respondent states that section 417 of the Migration Act gives the Minister the discretion to exercise his power to substitute the RRT decision.

The respondent states that, in mid to late 2001, recommendations that Shayan remain in the care of his parents in a non-detention environment were considered in the context of Australia's obligations as a signatory to international conventions such as CROC, as well as the Department's responsibility to ensure consistent application of Australian migration law. Following Shayan's refusal to eat or drink while at Villawood, it was decided to place Shayan in foster care. He left Villawood on 23 August 2001. The Assistant Secretary, Unauthorised Arrivals and Detention Branch, weighed up all of the information available to the Department from various professionals, including Westmead specialists, and carefully considered the options before deciding that Shayan's best interests were served by his removal from the detention centre environment. The Department states that Shayan's parents consented to the foster care arrangements. The respondent states that the foster family was chosen by Mr and Mrs Badraie and this family was assessed by DOCS as being suitable and consistent with established standards. The respondent states that it arranged for Shayan to maintain regular ongoing contact with his family in the form of three visits a week and regular telephone access. His parents were consulted in all significant decisions regarding Shayan.

The respondent states that it was advised on 8 January 2002 that the foster family could no longer provide foster care. As a consequence, arrangements were made with the Supreme Islamic Council of NSW to provide community support and Shayan's mother and sister were released into the community.

The respondent states that as unlawful non-citizens the members of the Badraie family are subject to sections 189, 196 and 198 of the Migration Act. Because they failed to lodge their applications for judicial review with the Full Federal Court within the required timeframe, they did not at the time of the response have before the courts an application for a judicial review of a decision to refuse a Protection (Class XA) Visa. As a consequence, according to the respondent, the members of the Badraie family did not meet the eligibility requirements to apply for a BV as outlined at sub-regulation 2.20(9) of the Migration Regulations 1994 (the "Migration Regulations"). However, the Minister exercised his powers under section 417 of the Migration Act on 16 January 2002 to grant BVs to Shayan, Mrs Badraie and Shabnam, Shayan's sister. Mr Badraie remains in detention at Villawood. This arrangement will continue until such time as the family members' claims for refugee status are determined.

6. Documentary material provided by to the Commission

The Commission has received documentary material from both parties. A list of the documents before the Commission appears in appendix B.

I have summarised or extracted below parts of those documents that are relevant to the issues before me.

7. My preliminary findings and DIMIA's response to my preliminary findings

On 19 April 2002, I made preliminary findings to the effect that certain of the acts or practices complained of were inconsistent with or contrary to Shayan's human rights under articles 3, 9, 19 and 37 of CROC (my "Preliminary Findings").

I have included extracts from those Preliminary Findings in sections 9, 11, 13, 14 and 15 below.

DIMIA, on behalf of the respondent, was given an opportunity to make oral or written submissions in response to my Preliminary Findings. It chose to make written submissions, which were due on 20 May 2002.

DIMIA (on behalf of the respondent) sought and was granted two extensions:

The respondent's submissions were received by the Commission on 26 June 2002.

I have included extracts from those submissions, as appropriate, in sections 9, 11, 13, 14 and 15 below.

8. Section 29 notice

On 24 September 2002, I issued a notice under section 29 of the HREOC Act. The findings and recommendations made in that notice appear in sections 9, 10, 11, 12, 13, 14, 15 and 16 below.

Under section 29(2)(e) of HREOCA, I must state in this report whether, to the knowledge of the Commission, the respondent has taken or is taking any action as a result of my findings and recommendations. I therefore invited DIMIA, on behalf of the respondent, to advise the Commission of those matters. DIMIA's response to that invitation is summarised and partially extracted in section 17 of this report.

9. Findings of fact

9.1 Introduction

I have set out below my findings of fact. As is appropriate at this stage of the inquiry, I have set those findings out in a more detailed fashion than was the case for my Preliminary Findings.

The respondent has made a number of useful comments regarding my Preliminary Findings of Fact. I have, where appropriate, discussed and/or incorporated the respondent's comments.

9.2 Detention

Shayan and his family were detained under the Migration Act on 27 March 2000 when they entered Australia without visas. They were detained in Woomera from 27 March 2000 until 3 March 2001.

9.3 "Riots" or "disturbances"

In late March, during early April and in late July 2000, Shayan witnessed incidents which Mr Badraie has described (in his complaint) as "riots" and which the respondent has described (in its submissions in response to my Preliminary Findings) as "disturbances".

In his complaint, Mr Badraie alleged that, during those incidents:

Mr Badraie further alleged that, as a result of those incidents, Shayan began having panic attacks, developed a fear of ACM guards, became socially withdrawn and lost his appetite. The respondent has not contested those allegations and accepted (at page 12 of its submissions in response to my Preliminary Findings) that:

"…it is possible that Shayan witnessed disturbances and acts of violence while in detention."

In those circumstances, I accept Mr Badraie's evidence regarding those matters.

Mr Badraie further alleges that, at times during this period, he had difficulties obtaining medical attention for Shayan. Mr Badraie says that, on some occasions, he was unable to obtain any medical assistance at all.

The respondent has stated, in its response to my Preliminary Findings, that a full time and a part time medical practitioner were available to detainees (and were on call 24 hours per day for emergencies). Two psychologists were also on call 24 hours a day seven days a week.

The respondent has not sought to challenge Mr Badraie's specific allegations and in those circumstances I accept them.

The respondent appears to accept that it knew, from July 2000, that Shayan was experiencing distress in the detention environment .

9.4 Application for protection visas

On 26 June 2000, Mr Badraie lodged an application for PVs for himself and for Shayan, Shabnam (Shayan's sister) and Mrs Badraie.

That application was refused by a delegate of the Minister on 22 September 2000.

9.5 Attempted self harm incidents witnessed at Woomera

In his complaint, Mr Badraie alleged that, on or around 19 December 2000, Shayan witnessed an incident during which a detainee held a shard of glass to his chest. He further alleged that, following that incident, Shayan became very distressed, began to wake during the night holding his chest and wanted to sleep during the day rather than the night by reason of his fear.

In my Preliminary Findings, I made a finding that, while in Woomera:

Shayan witnessed a man cut his wrists… [6]

This clearly did not accurately state the substance of Mr Badraie's allegation. The respondent has assisted in clarifying this matter by noting (at page 3 of its submissions in response to my Preliminary Findings) that there are no reported incidents of self harm attempts at Woomera between 10 December and 30 December 2000. The respondent has also drawn my attention to the following aspects of ACM's record keeping procedures:

Australasian Correctional Management (ACM) is required under the Immigration Detention Standards to report incidents that occur within an ACM managed facility. Such reports must include any incident or occurrence which threatens or disrupts security and good order, or the health, safety or welfare of detainees.

The timeframe in which an incident report must be completed depends on the nature of the incident. Major incidents are to be immediately reported orally and in full detail in writing within four hours. Minor incidents are to be reported in ful1 writing (sic) within 24 hours.

A major incident is an event which:

  • Seriously effects the good order or security of a centre;
  • Threatens the success of Detention Services activities; or
  • Threatens the safety of detainees, staff or other personnel

Given the fact that it does not appear to be alleged by Mr Badraie that the detainee did any actual harm to himself, it is by no means clear to me that there would be documentary records of that incident. The respondent does not appear to specifically challenge Mr Badraie's allegation regarding this incident, it simply says there is no record of it. In those circumstances, I accept Mr Badraie's allegation.

In his complaint, Mr Badraie alleged that on or around 4 January 2001, Shayan "witnessed an incident of a man at the top of a tree threatening to jump".

In my Preliminary Findings, I mistakenly found that Shayan had witnessed "another man jump from a tree". As the respondent observes (and as is clear from Mr Badraie's initial complaint) the man did not actually jump from the tree. According to the respondent, he came down after being requested to do so by a DIMIA manager.

I find accordingly.

I also note that the complainant has provided to the Commission a copy of a transcript of a story which appeared on Australian Broadcasting Corporation's programme the 7:30 Report, on 20 August 2001. In that story, Mr Wayne Lynch (who is a qualified nurse and who was employed as a counsellor at Woomera by ACM) made the following statements regarding that incident:

There was a man who climbed a tree and was threatening self-harm.

I was called out into the compound to negotiate with this man to try and do an assessment and have him come down from the tree.

It was just after the man at the Maribrynong detention centre had killed himself.

There was concern that this man might be doing the same thing.

As I was negotiating with this man, I noticed Shayan was sitting very close to the tree watching what was happening.

I remember that I went over to Shayan and asked him if he'd go away.

I remember speaking to a couple of people at the time asking if they could take Shayan away because I did not think this would be good for his mental health.

While I am wary of making findings on the basis of such material (which might have been better provided to the Commission in statement form), the Commission is not bound by the rules of evidence in informing itself in the course of an inquiry . Given that that material appears to be consistent with the other material presented by the parties, I find that Shayan observed the incident in the manner described by Mr Lynch.

9.6 Incident between ACM Officers and the Badraie family

In an incident report dated 12 January 2001, Mr Lynch referred to a discussion he had with Mr Badraie that day. During that conversation, Mr Badraie told Mr Lynch that he and Shayan had witnessed an officer making "masturbating gestures". Mr Badraie felt that this was inappropriate in a context in which families were eating and threw an apple at the officer. Mr Badraie was allegedly told by the officer to "fuck off out of here". Mr Badraie further stated that, following that incident, Shayan had a restless night and a "significant increase in bed wetting".

Mr Badraie also refers to this incident in his complaint. I note that, in that document, he alleges that the masturbation gestures were made by both detainees and an ACM officer.

The respondent has not challenged this allegation and I find that the incident took place as alleged.

9.7 Transfer of the family to Sierra Compound

In his complaint, Mr Badraie states that his family was transferred to "Sierra Compound" at Woomera on or around 21 January 2001. It appears, from the documentation provided by the parties discussed below, that the family was in fact transferred to Sierra Compound on 20 January 2001.

In his complaint, Mr Badraie described Seirra Compound as a "punishment area" and alleged that, apart from a three year old girl, Shayan was the only child in the compound.

In a memo dated 21 January 2001, Mr Lynch discussed issues raised by Mr Badraie in relation to the transfer. Mr Badraie was said by Mr Lynch to be "very upset" by the effect the transfer had had on Shayan. Mr Lynch then noted the following matters:

Mr Lynch recommended that:

I note that a further account of the events surrounding the transfer of the Badraie family to Sierra compound appears in an incident report dated 20 January 2001, prepared by Mr Michael Schilt (employed by ACM as Detention Manager). According to that report, Mr Badraie became "extremely aggressive" towards detention staff working in Sierra Compound by reason of the fact that he wanted to move from the room that had been allocated to his family to a larger building (which Mr Schilt alleged was already occupied by another larger family). Mr Badraie is said to have become aggressive in a physical manner. The report refers to actions being taken by members of a team described as "CERT 1" to isolate Mr Badraie from other detainees who had gathered to watch.

It appears to be common ground that during or shortly after the transfer of the Badraie family to Sierra compound, an incident did occur between Mr Badraie and ACM officers, which was witnessed by Shayan. I find accordingly. I further find that:

Neither party has sought to explain to the Commission why the Badraie family was transferred to Sierra Compound. I note that no allegation has been raised that the family had engaged in conduct requiring punishment or close confinement.

9.8 Self harm incident that took place on or about 22 February 2001

On 22 February 2001, Mr Lynch wrote a memorandum to Ms Trish Farrow (copied to the Centre Manager, Operations Manager and the DIMIA Manager). He referred to a conversation with Mr Badraie regarding a self harm incident (involving a detainee identified as LEE 068) which had had a detrimental effect on Shayan. Those effects were said to be "bed wetting, nightmares, anorexia, insomnia and tearfulness". Shayan had also been disturbed by news that "new arrivals" were already being released.

9.9 Transfer to Villawood

It appears to be common ground that, on 3 March 2001, the family was transferred to Villawood.

9.10 RRT Decision

On 9 March 2001, the RRT affirmed the decision of the Minister's delegate to refuse to grant protection visas to the Badraie family. In reviewing that decision, the RRT conducted hearings on 23 November 2000 and 3 January 2001.

At the hearing held 3 January 2001, Mr Badraie was said to have made submissions regarding Shayan. In the Tribunal's reasons it was noted, as regards those submissions:

The Applicant raised the matter of his son's emotional health with the Tribunal. His son had witnessed a violent incident in the detention centre and was traumatised by this. Medical evidence supporting this was available to the Tribunal. [8]

Later in its reasons, the RRT noted that:

The Tribunal was asked to consider the plight of the Applicant husband's son who has been diagnosed with post traumatic stress disorder after witnessing a distressing incident while in immigration detention. The Applicants' file contains professional assessments of the child's problem, their source and the likelihood of the need for further professional help. It was submitted that the child has become an inadvertent victim of the policy of detaining children who enter Australia illegally. The Tribunal informed the Applicants that humanitarian consideration was a matter for the Minister, but that the situation of the child could form part of a humanitarian request. [9]

The reference to the "Applicants' file" appears to be a reference to the material provided to the RRT by DIMIA. In that regard, I note that the RRT states on its website that, when considering an application for review:

The Tribunal will ask the Department to send us your file.

That material is apparently provided to the RRT under section 418(3) of the Migration Act or pursuant to a request made under section 424 of the Migration Act.

The RRT's comments indicate that there appeared on Shayan's "file", at the date of the second hearing, "professional assessments" stating that:

The parties have not provided to the Commission copies of those documents. It is nevertheless open to me to find on the basis of the RRT's reasons that the Department was aware, as at 3 January 2001, that Shayan had been diagnosed with PTSD for which he required further help.

9.11 Report prepared by Dr Timothy Hannan

A memorandum to the Minister dated 7 June 2001 (discussed below) partially reproduces a report prepared by Dr Timothy Hannan, Clinical Psychologist and Clinical Neurophysiologist at Westmead on or about 28 March 2001.

Again, that report has not been provided to the Commission. I find that that report was at some time provided to DIMIA, although it is not entirely clear when that took place.

In the extracts included in the memorandum to the Minister, Dr Hannan described Shayan's behaviour after Shayan witnessed the riots or disturbances at Woomera. Dr Hannan stated that, after seeing detainees setting themselves on fire, Shayan was said to have been very upset and, in the months following, experienced frequent sleep disturbances often accompanied by bed-wetting. Upon waking Shayan would cry and express fear that his family was about to be taken away and harmed. Those episodes would recur up to ten times per night. Shayan had also reportedly stated, not long before Dr Hannan's report, that he did not want to eat because he wanted to die.

Dr Hannan's opinion (as extracted in the memorandum to the Minister) was that Shayan:

remains at risk of suffering a prolonged stress syndrome while he remains in the detention centre…. It is likely that this condition would improve should he be placed in an emotionally-supportive environment that he perceives as safe and stable.

9.12 Self harm incident that took place on or about 30 April 2001

In his complaint, Mr Badraie states:

….on 7-5-01 my son witnessed a further traumatic event. A man cut his wrists and Shayan believed him to be dead. He stopped speaking, refused to eat, began having nightmares and had to be forced to take fluids.

In my Preliminary Findings, I stated that:

on 7 May 2001 Shayan witnessed an incident of self-harm by a detainee. The detainee cut his wrists and Shayan believed him to be dead.

I have there implied that Shayan witnessed the man cut his wrists. My finding was in part based upon the Memorandum to the Minister 20 June 2001 (referred to above and discussed further below), in which it was stated:

…Shayan witnessed a detainee at Villawood cutting his wrists… [10]

The respondent has, with its submissions in response to my Preliminary Findings, offered further clarification regarding that incident.

The respondent states that the incident in question took place on 30 April 2001, rather than 7 May 2001. I accept that that is so.

The respondent has also provided a document, signed by both the Health Services Manager and the Centre Manager at Villawood, that is said by the respondent to relate to that incident. That document indicates that:

The respondent has also assisted by providing the following information:

….the detainee who self harmed apparently alone on this date stated in a letter dated 18 May 2001 to the Minister that:

"I was in my room, the doors were locked and the curtains were down everywhere. I cut my veins with the intention to commit suicide. At about 11 am at the time when I could hardly breath (sic) a/an [withheld] lady who lived opposite to my room found out about my condition and informed the nurse…" [11]

The respondent has not provided a copy of that letter.

I find that Shayan witnessed the unnamed detainee bleeding from a laceration to the wrist, but did not witness the laceration being made. It is unclear to me whether Shayan also witnessed the unnamed detainee being treated and taken to hospital and I make no finding regarding those matters.

9.13 Shayan's first admission to Westmead

It appears to be accepted by both parties that, after Shayan witnessed the aftermath of the self harm incident of 30 April 2001, his mental and physical health deteriorated. Dr Hannan's report indicates that he was at that time already considered at risk of developing prolonged stress syndrome and the material before the RRT indicated that he had, at some time prior to 3 January 2001, been diagnosed with PTSD.

On 3 May 2001, Shayan was admitted to Westmead. He was discharged and returned to Villawood on 9 May 2001.

Dr Karen Zwi, Dr Brenda Herzberg and Ms Mee Mee Lee prepared a report in relation to Shayan dated 10 May 2001. Dr Zwi is a Paediatric Fellow of the Department of Psychological Medicine at Westmead. Dr Herzberg is the Staff Specialist in that Department. Ms Lee is a Senior Clinical Psychologist in that Department.

Amongst other things, that report stated that:

9.14 Shayan's second admission to Westmead

On 15 May 2001, Shayan was readmitted to Westmead.

Also on 15 May 2001, Dr Ramesh Nair, a psychologist at Villawood, apparently prepared a report regarding Shayan. I say apparently because again the parties have not provided a copy of that report to the Commission. However, like Dr Hannan's report, it is referred to and partially reproduced in the memorandum to the Minister dated 7 June 2001 (referred to above and discussed below). The extract in that memorandum states:

The main reasons for the symptoms are the fences, the barbed wire and the uniforms of the detention officers. These are reflected quite clearly through the drawings he did with me as part of the therapeutic techniques used….

The main concerns are the severity of the symptoms and the young age of the boy. After many attempts it is clear that to alleviate the symptoms within the facility will almost not be possible as the boy has a severe difficulty in the issue of trust.

Prolongation of the symptoms can bring in long lasting psychological damage in the child and the personality development can get distorted.

The other issue is that by seeing the child's symptoms, the parents are distressed and the whole family is getting into a severe dysfunctional state.

On 18 May 2001, Dr David Dossetor and Dr Zwi wrote to Dr Greenwood, a medical officer at Villawood. Dr Dossetor is the Head of the Department of Psychological Medicine at Westmead. The letter was copied to, amongst other people, Dr Sally Cleland, Health Services Manager at Villawood, Dr Nair and Mr Fulvio Fabreschi, Centre Manager at Villawood.

The letter referred to Shayan's readmission and stated:

Shayan's readmission reinforces that his symptoms recur if he is returned to the environment that he has found traumatic. There are limited psychological interventions that we can provide that will over-ride the aversive stimulus. To prevent further morbidity, we are looking for the co-operation of the Villawood Detention Centre and the Department of Immigration to avoid returning him, to an aversive environment and to find a means to provide a community placement with an appropriate peer group and educational setting. From a psychiatric point of view, it is not in the child's best interest to discharge him back to his current residential setting.

On 28 May 2001, Dr Nair wrote to "the Centre Manager". Dr Nair noted Shayan's readmission and expressed his concern about Shayan's emotional state. Dr Nair stated that:

"It was thought that the Department of Community Services (DoCS), should be contacted and to explore the possibility of placing the boy under their care. At present it is obvious that even if DoCS were to assess the boy it is not possible to separate the boy from the parents because of the emotional dependency.

The most pertinent aspect is that during the developmental stage of the personality in the boy a chronic emotional disorder can have extreme consequences in his growth process. The disorders he can develop can range from personality disorders to chronic mental illnesses.

As such alternate modes of detention where the boy can feel secure and emotionally safe has (sic) to be thought of.

A long-term psychosocial rehabilitation is required for the boy and supportive therapy for the parents are indicated for the family to attain a healthy level of functioning. I request the authorities to consider the options and expedite this matter as the boy is in a precarious state of functioning.

On 31 May 2001, Dr Dossetor and Dr Zwi wrote directly to the Minister. The letter was copied to, inter alia, Dr Greenwood, Dr Nair and Mr Fabreschi.

The letter noted that Shayan had been admitted to Westmead, that being his second admission for potentially life threatening symptoms such as refusal to eat or drink. The letter further stated:

We are concerned about the risks of returning Shayan back to Villawood Detention Centre. From the point of view of his psychological treatment, he should not be re-exposed to the emotionally traumatic environment that precipitated his acute deterioration. On the other hand, it is inappropriate for him to remain indefinitely in a tertiary hospital setting. There is very little else that can be done to help him in terms of psychological treatment. We therefore need your office to help in this matter urgently. From the perspective of his mental health management, Shayan's needs are to be in a predicable, safe home setting away from the environment that has traumatised him, to be in the care of his parents, and to be able to develop stable peer relationships at school. We need the Department of Immigration to participate in resolving this problem of discharge placement for Shayan, because of the likely impact on his emotional and physical well-being of returning him to his current residential placement

On 31 May 2001, Mr Ali Efrem of DIMIA wrote to Mr Fabreschi in a letter headed "URGENT". Mr Efrem there stated:

This office is in discussions with our senior staff in the matter of Shayan Badraie and how an alternative place of detention can be arranged where he and the family may be managed appropriately.

Although we are in receipt of the advice of Sally Cleland on management of Shayan, we kindly request your views as to how the whole family could be managed by ACM outside Villawood.

A handwritten note, apparently written by Mr Fabreschi, appears at the foot of that document stating:

Ali

At this stage we have no facilities to manage this family outside the centre.

Perhaps we need to get together to investigate the options relating to this matter further.

On 19 June 2001, Dr Greenwood wrote to Mr Fabreschi. In that letter, Dr Greenwood stated:

[Shayan] is not responding well to management in hospital this time and has become very dependent on his parents. Further return to Villawood given current management facilities for this condition will without doubt induce an even worsened condition from which he may not recover. I have grave concerns for his mental health if he is again subjected to this environment.

On 29 June 2001, Dr Dossetor wrote to the Minister, repeating his concern about Shayan being returned to Villawood. I note that both DIMIA (in its response to my Preliminary Findings) and I (in those findings) mistakenly refer to this letter having been sent on 29 July 2001.

Dr Dossetor there stated:

As is known to you from previous correspondence, Shayan has been diagnosed with Posttraumatic (sic) Stress Disorder and in hospital has demonstrated an exacerbation of symptoms whenever situations which remind him of the Detention Centres arise. From a psychiatric perspective, it would be traumatic and therefore harmful for him to be discharged back to the Detention Centre.

Since the resolution of the immigration status of this family is taking an extended period of time, we would urge you to consider a community placement for the family. We consider it inappropriate for Shayan to be housed in a tertiary hospital setting while all the administrative work is being undertaken. His mental health needs are to be in a safe predictable environment, able to attend school with his peers and to be with his family.

With regard to the opinion of foster care, which has been mooted by Sally Cleland of ACM, we would consider this highly inappropriate and potentially damaging from a psychological point of view. Shayan still displays severe anxiety symptoms with previous separations, and remains very sensitive to separation. If foster care involves separation from both parents, we expect this would be very traumatic for Shayan.

That letter was copied to, inter alia, Ms Cleland, Dr Greenwood, Dr Nair and Mr Fabreschi. It was also copied to Mr Frank Donatello of DIMIA's Parramatta office and Mr Colin Lindsay, who worked as a case manager at that office.

9.15 First instance Federal Court decision

During the period of Shayan's second hospitalisation, the Federal Court affirmed the RRT's decision in a judgment of Stone J handed down on 25 May 2001 . The family did not appeal that decision within the 28 day time period provided for such appeals.

9.16 Application regarding section 417 of the Migration Act

During the period of Shayan's hospitalisation, the Minister considered and decided against exercising his powers under section 417 of the Migration Act (reproduced above) which allows the Minister to substitute a "more favourable" decision for a decision of the RRT.

On 24 May 2001, Migration Agents acting on behalf of the Badraie family sent a letter to the Minister, in which the Minister was asked to exercise his powers under section 417 of the Migration Act. That letter drew the Minister's attention to, inter alia, Shayan's condition and treatment. It also appears to have annexed copies of reports prepared by Drs Zwi and Dossetor. The Minister's attention was also drawn to article 3 of CROC, which was said to be applicable to Shayan's circumstances.
In a memorandum dated 7 June 2001, a Mr or Ms "SD Johnson" (on behalf of John Williams, the DIMIA State Director for Western Australia) provided information to the Minister to allow the Minister to:

commence consideration of the exercise of your public interest powers under section 417 of the Migration Act 1958.

The writer stated that the Minister's intervention had been requested by the Migration Agents acting on behalf of the Badraie family and by Drs Dossetor and Zwi. Of course, the Minister's attention could have been drawn to the case by DIMIA staff prior to 7 June 2002 and independently of the requests made by the representatives of the Badraie family and Drs Dossetor and Zwi. That procedure is provided for by paragraph 6.2 of MSI-225 and could have occurred at any time after the RRT's decision of 9 March 2001.

As noted above, the writer of the memorandum referred to reports prepared by Drs Hannan and Nair, with which the Commission has not been provided. Extracts from those reports that appear in the memorandum to the Minister have been reproduced above. The writer also referred to and extracted the passage from the letter prepared by Drs Dossetor and Zwi of 31 May 2001 reproduced above.

The writer went on to note:

The option of placing Shayan into foster care has been explored however is not appropriate given the strong emotional bond that exists between him and his father. Further, each treating psychologist has specified that Shayan needs to remain in the care of his parents.

In a section headed "Discussion", the writer drew the Minister's attention to the fact that the case:

…may bring Australian's (sic) obligations as a signatory to Convention on the Rights of the Child (CROC) into consideration.

I consider article 3 of CROC in my findings below.

Under the heading "Conclusion", the writer of the memorandum stated:

It is considered that the case may warrant consideration of intervention in the public interest.

The writer then discussed the options of granting temporary or permanent PVs to all members of the Badraie family (it was specifically noted that the Department had legal advice to the effect that such visas could be granted to all members of the family).

The only matter listed under "Other Considerations - No Visa Grant" was:

ACM have advised that they do not have a plan to manage the family outside Villawood Detention Centre.

If that matter was being advanced by the writer as a consideration weighing against the granting of a visa, this part of the memorandum involved a mistake: ACM is the respondent's detention services provider and has, to the Commission's knowledge, no role in the "management" of persons released on protection visas. It seems more likely that that matter was another consideration thought by the writer to weigh in favour of granting a visa, in that it was intended to refer to a view that there were obstacles to the option of using alternative detention facilities. Assuming that to be so, there were no matters identified in the memorandum of 7 June 2002 that weighed against the Minister exercising his powers under section 417: every consideration identified by the writer of the memorandum weighed in favour of that option.

On 20 June 2001, the Minister decided not to exercise his discretion under section 417 of the Migration Act. The respondent has not provided to the Commission the reasons for that decision.

The Badraie family were informed of that decision by letter dated 26 June 2001. The parties have not provided a copy of that letter to the Commission.

9.17 Shayan's return to Villawood

On 12 July 2001, Shayan was discharged from Westmead and returned to Villawood.

On 13 July 2001 Ms Cleland wrote to Mr Efrem, stating that Shayan was again not eating or drinking. Ms Clelland went on to state

what is the possibility of separating the child from the parents, as they are not helping the child?

Ms Cleland was, at that time, aware of Dr Dossetor's view that such a course would be "highly inappropriate and potentially damaging from a psychological point of view".

9.18 Further admissions to Westmead

The respondent has confirmed, in its response to my Preliminary Findings that, during each of the following periods, Shayan was hospitalised and then returned to Villawood:

I note that there appears to have been one further admission that commenced on 9 August 2001. It is unclear when Shayan was discharged on that occasion.

The respondent has drawn my attention to the fact that a number of those visits were for re-hydration purposes.

The respondent has also provided to the Commission the following documents regarding this period:

9.19 Dr Greenwood's letter of 7 August 2001

The respondent has provided to the Commission a letter addressed to the Minister that appears to bear the signature of Dr Greenwood. That letter is dated 7 August 2001. The writer stated:

This young boy has had multiple admissions to hospital for psychological care related to incidents at Woomera and Villawood. The family have been heard to coach the boy not to eat or drink while at the Centre. The Children's Hospital staff have also made comment on the child being instructed not to eat.

Today, his father was throwing the child in the air.

This child is at risk and being emotionally abused by his parents. He must be removed from their care immediately. DOCS are aware but to date have no solution. (original emphasis)

The incident described in the second paragraph was described more fully in a document entitled "Current Issues Brief" dated 16 August 2001 (discussed below). In that document, it was stated:

On 7 August 2001 an incident occurred in which Mr Badraie was standing at the end of the ramp leading to the supervisor's office with Shayan lying on a blanket. Mr Badraie began to yell "my son is sick and they do nothing. He doesn't eat or drink" or words to that effect. Mr Badraie then lifted Shayan up over his head and whilst shaking him up and down above his head continued to scream. ACM officers attempted to restrain Mr Badraie or to relieve Shayan from his grip but were unable to do so because they were concerned that this action would injure Shayan.

9.20 Dr Dossetor's letter of 14 August 2001

On 14 August 2001, Dr Dossetor wrote to Mr Wayne Geddes on behalf of the New South Wales Minister for Health.

Amongst other things Dr Dossetor noted that:

Administrative difficulties in the Department of Community Services and the Department of Immigration seem to be impeding the ratification of this arrangement.

9.21 Current issues brief

On or about 16 August 2001, an officer or officers of DIMIA prepared a "Current Issues Brief" entitled "Minor Detainee Refusing to Eat or Drink at the Villawood IDC", in relation to Shayan's health and arrangements for foster care.

DIMIA has advised the Commission (in its response dated 14 March 2002 to a notice issued by me under section 21 of the HREOC Act) that that document represents the decision record for the decision to place Shayan in a foster care arrangement. DIMIA further advised that that decision was made by the Assistant Secretary, Unauthorised Arrivals and Detention Branch.

I find this somewhat perplexing as the document appears, on its face, to be a document designed to brief the Minister (most likely for the purposes of enabling the Minister to speak with the media).

Amongst other things, the document states:

The Badraie family have indicated that they are unwilling to return to Iran voluntarily and options for their long-term detention are being considered. DIMA staff met with Mr Badraie on 14 August and reiterated that the only option available is for the family to apply for an Iranian passport and agree to leave Australia. The family is not eligible for the grant of bridging visas because of the refusal of their applications for protection visas and their readiness for removal from Australia…..

….Because of the ongoing health problem, DIMA and ACM have been assessing whether Shayan can be adequately managed in a detention environment. The family is not eligible for bridging visas. DIMA and ACM have been in consultation with DOCS about the appropriate management of this child. In the circumstances, placement outside the Centre, with an appropriate family to provide foster care, was considered to be the appropriate course of action.

On Friday 20 July, approval was sought and obtained from Shayan's parents to place him in the care of a suitable foster family in consultation with the NSW Department of Community Services (DOCS). His parents agreed to the placement when advice was received from the ACM Health Services Manager at the centre that the family was of a Muslim Persian background. However, when DOCS contacted Mr Badraie on 23 July with regard to the placement, they indicated that the family was of Palestinian origin. Upon hearing this news, Mr Badraie withdrew his approval for Shayan to be placed in DOCS care and indicated that Shayan's reluctance to be separated from his family was also a major factor in this decision.

DOCS have refused to override the father's decision and intervene in this case at that stage. A letter from DOCS to Mr Colin Lindsay of DIMA Parramatta stated that "there is (sic) not grounds for this department to intervene further". After consultations with DIMA, Dr Nair, the clinical psychologist at the Villawood IDC, approached Mr Badraie and requested him to provide details of a family in the Sydney Iranian community who he would allow to care for Shayan. Upon receipt of the details, the Hornsby area DOCS office were requested to conduct an assessment to determine the family's suitability for providing foster care to Shayan. It is expected that a full assessment will take up to two weeks. DOCS has provided a preliminary assessment of the family indicating their suitability for the placement. DOCS has further advised that the placement is DIMA's decision and a full assessment is not necessary. However, it is DIMA's view that it would be preferable to obtain a full assessment before placing the child. If suitable, Shayan can then be released from the Centre to the family. The family's home would be declared an alternative place of detention for this purpose. DIMA staff have met with the family who are aware of, and understand their responsibilities if Shayan is placed with them.

Mr Badraie has confirmed his agreement for Shayan to be placed with the family. It is not clear when arrangements will be finalised.

9.22 Application to Full Federal Court for leave to appeal out of time

On 16 August 2001, the Badraie family applied to the Full Federal Court for leave to appeal the first instance decision out of time.

9.23 Placement in foster care

On 23 August 2001, Shayan was placed in foster care.

9.24 Assessments prepared by Drs Wraith and Field during the period of Shayan's foster care

A "Confidential Assessment Report" regarding Shayan was completed by Dr Ruth Wraith, Head of Department of Child Psychology, Royal Children's Hospital Melbourne, on 4 September 2001. This was requested by Ms Phillipa Godwin of DIMIA as an independent assessment of Shayan's psychological and physical health and an assessment of family functioning and to develop recommendations for Shayan's care. Dr Wraith noted that the foster family were finding the placement more demanding and difficult than they envisaged, and that as a result there were "multiple tensions in the family arising from the constancy of care, Shayan's PTSD, symptoms such as sleep disturbance, anger and clingy dependent behaviours which they find difficult to understand and manage". She also noted that:

Dr Wraith recommended that a number of services would be needed to address recovery, including:

On 12 November 2001, Dr Wraith prepared a "Review Report" at the request of DIMIA. Dr Wraith noted that:

Amongst other things, Dr Wraith recommended that:

On 22 November 2001, Dr Wraith prepared a further review report.

Dr Wraith noted:

Dr Wraith recommended that:

Between 28 November 2001 and 5 December 2001, Dr Field met with Mr and Mrs Badraie, Shayan and members of Shayan's foster family. Those meetings are summarised in a document apparently sent by facsimile to DIMIA on 7 December 2001.

In reporting a meeting with Mr and Mrs Badraie held on 28 November 2001, Dr Field stated:

Both parents were very concerned about Shayan's distress at being separated from them, and also about the impact on his foster family of taking care of him. However, it is very difficult for them to appreciate the nature of his emotional difficulties ie PTSD and the long term help he is going to need. They also do not understand the importance of their role in helping him. This is quite understandable given their own emotional distress. They were anxious that I did not waste valuable time with them, rather that I needed to get on with helping him. Even with the help of an interpreter it was difficult to convey to them the nature of the help he needs and the fact that there is nothing that will bring results immediately.

In reporting a meeting with Shayan held 30 November 2001, Dr Field noted that Shayan was:

showing hopeful signs of resilience when given the chance to be in a normalising environment eg with the foster family and at school. It confirms the impressions of his teachers - that he responds well to being allowed to be a child again when away from the enormous pressures facing his family regarding their future. This is not to underestimate the enormous emotional impact on him of the last 18 months. It confirms the importance for him of a stable and secure family setting which the foster family is doing their best to provide.

In reporting meetings held with members of Shayan's foster family on 4 and 5 December 2001, Dr Field reported further difficulties being experienced in relation to the foster arrangements. Shayan's foster father and sister were, however, reported to be adamant about wanting to continue the foster arrangement.

9.25 End of foster arrangements and grant of bridging visas to Mrs Badraie, Shayan and Shabnam

On 8 January 2002, DIMIA was advised that foster care could no longer be provided by Shayan's foster family.

On 16 January 2002, the Minister exercised his powers under section 417(1) to grant BVs to Shayan, Mrs Badraie and Shayan's sister Shabnam. DIMIA further arranged for the Supreme Islamic Council of New South Wales to provide community support for Shayan, Shabnam and Mrs Badraie.

9.26 Full Federal Court decision

On 8 April 2002, the Full Federal Court overturned Stone J's decision and remitted the matter to the RRT. [13]

9.27 Further RRT decision

Finally, for the sake of completeness, it has come to my attention that, upon their matters being remitted to the RRT, the Badraie family were granted temporary protection visas [14]. Neither party has made submissions regarding that issue and I do not consider it further.

10. Elements of the inquiry

One of the functions conferred on the Commission is to inquire into any act or practice that may be inconsistent with or contrary to human rights (section 11(1)(f) of the HREOC Act). In deciding whether the matters complained of fall within the terms of section 11(1)(f) of the HREOC Act, I must consider two main issues:

11. Whether there is an act or practice

11.1 Introduction

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.

It is important to note that the Commission's human rights complaints jurisdiction under section 11(1)(f) of the HREOC Act is limited to discretionary acts and practices of the Commonwealth. When an act or practice is truly within the discretion of the Commonwealth and its officers, then that act or practice is properly subject to the Commission's complaints jurisdiction. When an action of the Commonwealth or its officers is required by the Migration Act and involves no discretion, that action is outside the scope of the Commission's human rights complaints jurisdiction [15] .

The respondent has, in its response to my Preliminary Findings, stated at more than one point, that detention of an "unlawful non-citizen" (as defined in the Migration Act) is mandatory until that person is removed from Australia, deported or granted a visa [16]. This follows from the combined operation of sections 189 and 196 of the Migration Act, which provisions, as the respondent notes, apply equally to children and adults [17].

However, as noted in my Preliminary Findings, there remain significant areas of discretion which are within the Commission's complaints jurisdiction. I have briefly described those areas of discretion below.

11.2 Conditions of detention

Section 273 of the Migration Act provides that the Minister may, on behalf of the Commonwealth, cause immigration detention centres to be established and maintained.

Section 273 further provides that regulations may be made in relation to the "operation and regulation" of detention centres. That power to make delegated legislation has not been used to comprehensively provide for such matters. As a result, the respondent retains a significant degree of discretion in relation to the conditions of detention within detention centres and the manner in which people are treated whilst detained.

Shayan's conditions of detention and treatment at Woomera and Villawood thus involve discretionary acts or practices of (or on behalf of) the respondent, that can be inquired into by the Commission.

11.3 Section 5 of the Migration Act

As I noted in my Preliminary Findings, whilst detention may be mandatory (until deportation, removal or the grant of a visa), the Minister retains considerable discretion as to the place of detention. In particular, there is no requirement that a person be detained in a detention centre established under section 273 of the Migration Act. Rather, by section 5 (reproduced above), the Minister may give written approval for a person to be detained:

"in another place".

This conferred upon the Minister the discretionary power to determine, at any time during Shayan's detention, that Shayan and his family should be detained in a place other than a detention centre. For example, the Minister could have determined that Shayan and his family be detained in a dwelling in the Australian community. As I noted in my Preliminary Findings, the respondent has previously used the discretionary power conferred by section 5 to provide accommodation in the Woomera township for women and children as a pilot scheme. Indeed, that power was used here to allow Shayan to be placed in the foster arrangement .[18]

The Commission has jurisidiction to consider whether the respondent's failure to use the discretion conferred by that provision more expeditiously and in respect of Shayan's entire family involved acts or practices that were inconsistent with or contrary to Shayan's human rights.

11.4 Section 417 of the Migration Act

A further area of discretion arises by reason of section 417 of the Migration Act (partially reproduced above). That provision enables the Minister to substitute a "more favourable decision" for a decision of the RRT, if the Minister thinks it is in the public interest to do so.

As noted above, this means that, from the RRT decision of 9 March 2001, the Minister had the discretion to grant BVs or PVs to Shayan and the other members of his family. Indeed, that is what the Minister ultimately did on 16 January 2002 (almost 12 months after the time he first became empowered to do so).

It is clear, from the extract of MSI 225 reproduced above, that the Minister does not feel himself bound to wait upon a request from the relevant applicant to exercise the powers conferred by section 417. Rather, he has put in place a mechanism whereby, upon being notified of an RRT decision that is not the most favourable to the applicant and which falls within the ambit of the MSI 225 guidelines, the relevant case officer is to bring that case to the Minister's attention. As I have observed in my findings of fact, it does not appear that this matter was brought to the Minister's attention until the memorandum of 7 June 2001 (which appears to have been prompted by the letter the Badraie family's representative wrote to the Minister on 24 May 2001 and the subsequent letters written by Drs Dossetor and Zwi).

The respondent has made submissions regarding the fact that under section 417(7) of the Migration Act, the Minister does not have a duty to consider whether to exercise the power under section 417(1). It is unclear whether those submissions were directed to the question of whether there is a relevant act or practice into which the Commission may inquire. If it is suggested that there was no such act or practice, then those submissions are at odds with Burgess' Case [19]. In that case, the applicant submitted, inter alia, that a decision not to exercise a statutory discretion (which the relevant decision maker was similarly under no duty to exercise) was not an act or practice for the purposes of the HREOC Act. Branson J rejected that submission. [20]

I similarly reject any such submission advanced here.

I should, however, refer to another aspect of her Honour's decision which, although not cited by the parties, is relevant to this complaint.

Burgess' Case involved an age discrimination complaint into which the Commission inquired under section 31(b) of the HREOC Act. The complainant was a public servant who was compulsorily retired by reason of the operation of section 76V(1) of the Public Service Act 1922 (Cth) (the "PSA"). Like sections 189 and 196 of the Migration Act, that provision was mandatory in its terms and therefore did not give rise to any relevant act or practice into which the Commission could inquire. However, section 76V(2) of the PSA gave the relevant Departmental Secretary the power to determine (if satisfied that it was in the interests of the Commonwealth to do so) that section 76V(1) did not apply to a particular Commonwealth officer.

The Commission inquired into the non-exercise of that discretion as an act or practice. The Commission found that the threshold test for the exercise of the discretion applied by the relevant Secretary (which was that the work of the officer was of such an "essential" nature that the Department would have difficulty functioning without them) imposed a "considerable burden on employees over the age of 65 years of age, a burden which would not apply to employees under the age of 65".

Branson J found that the Commission had failed to properly construe section 76V(2), in that:

Her Honour further found that that failure led the Commission into error, stating (at 216):

HREOC concluded that the test utilised by the Secretary in deciding whether or not to make a determination that s 76V(1) would not apply to the complainants imposed "a considerable burden on employees who are over 65 years of age, a burden which does not apply to employees under the age of 65" and was a test "not applied to employees or prospective employees in other age groups". So much may be accepted. However, neither employees under the age of 65 years nor prospective employees of any age require a determination pursuant to s 76V(2) to allow them to continue in employment within the Australian Public Service after they attain the maximum retiring age. In reaching a conclusion as to whether any of the acts of the Secretary in failing in respect of each of the complainants to make determinations under s 76V(2) of the Public Service Act constituted a distinction or exclusion on the basis of age, it was not open to HREOC to find such distinction or exclusion by comparing the positions of the complainants with the positions of persons in respect of whom s 76V(2) has no relevant operation.

It is implicit in her Honour's judgment that the approach to the exercise of the discretion that would have been required of a Secretary acting in accordance with the Commission's decision (which essentially entailed equality of treatment) would have undermined the intention of Parliament's intention in enacting section 76V(1). Such an approach would be unlawful as it would involve an improper purpose.

I have been mindful of her Honour's judgment in my findings regarding section 417 (see further below). I should say at this stage that there are some important differences between the PSA and the provisions of the Migration Act I am considering for the purposes of this complaint. In particular, section 417 seems intended by Parliament to allow the Minister to avoid breaches of human rights. Indeed, this is apparent from the Minister's own guidelines regarding that provision, as set out in MSI 225. In contrast, section 76V(2) of the PSA was clearly not intended by Parliament to avoid the effects of age discrimination, which was effectively mandated by section 76V(1).

11.5 Bridging Visa

I note that it appears to have been assumed by the respondent and the Commission that all members of the Badraie family may, at various relevant times, have been eligible for BVs by reason of their being "eligible non-citizens" under sub-regulation 2.20(9) of the Migration Regulations [21]. That provision relates to special need based on health or previous experience of torture or trauma.

The failure to grant such a visa is an act or practice into which I may inquire.

However, having considered the Migration Regulations more closely, it appears to me that only Shayan could have been granted a BV under that provision. Clause 1305 of Schedule 1 and the provisions of subclass 051 of Schedule 2 of the Migration Regulations do not appear to provide for such visas to be granted to the family members of a person with special health needs. I have therefore not considered that matter further for the purposes of this report.

Although this is not an examination of an enactment under section 11(1)(e) of the HREOC Act, I should say that those provisions, which appear to contemplate the separation of seriously ill detainees (including young children) from those most likely to be able to provide support and care, give me some cause for concern.

11.6 Acts or practices of other persons

Finally, the respondent has made certain comments regarding the obligations or responsibilities of parents. The respondent has drawn my attention to article 5 of CROC, which provides:

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

That article does not impose duties upon parents or upon the other persons there mentioned. An international human rights treaty cannot purport to impose, directly, any duties upon entities other than its States parties [22]. The focus of this inquiry is whether the acts or practices of the respondent (or those acting on its behalf) breach those obligations.

12. Human rights under the HREOC Act

As in my Preliminary Findings, I have found it convenient to consider whether the relevant acts or practices breached Shayan's human rights by reference to three separate sets of factual circumstances:

13. Shayan's experiences in Woomera

13.1 Background

In my Preliminary Findings, I found that Shayan's detention at Woomera involved breaches of articles 19(1) and 37(c) of CROC.

13.2 Article 19(1) of CROC

Article 19(1) provides that:

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Article 19(1) requires Australia to take positive steps to protect children from, amongst other things, physical and mental violence. "Mental violence" includes humiliation, harassment, verbal abuse, the effects of isolation and other practices that cause or may result in psychological harm .[23]

The phrase "while in the care of parent(s), legal guardian(s)" indicates that the primary focus of the article is "intra-familial" situations. However, the phrase "any other person who has the care of the child" appears to broaden the application of the article to cover personnel of institutions responsible for the care or protection of children. [24]

Article 19(2) provides some elucidation of the protective measures required by article 19(1):

Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

13.3 My preliminary findings on article 19(1)

In my preliminary findings, I found that article 19(1) was breached by reason of the following matters:

I further found that the respondent's obligations to take such measures were particularly significant in circumstances where the respondent knew, from about July 2000, that Shayan was distressed by reason of his experiences .[26]

13.4 The respondent's submissions on article 19(1) and my findings

As I understand the respondent's submissions, it seeks to advance contentions that may be divided into three broad categories.

First, the respondent notes that certain of my preliminary findings of fact were inaccurate. I have discussed this above and taken the respondent's comments into account where appropriate. While it is comforting to know that Shayan did not witness people actually harming themselves, the threatened harm that he did witness still falls within the wide definition of physical or mental violence which applies to article 19(1) of CROC.

In addition, I have found that Shayan did witness actual physical violence during the "disturbances" or "riots" in late March, early April and late July 2000 which led to panic attacks, withdrawn behaviour and loss of appetite.

I have also found that he and his family were transferred to Sierra Compound, which Shayan regarded as a place for "bad" people and where Shayan was denied the company of other children (save for one three year old female detainee). In my view that act, which appears to have had a detrimental psychological effect on Shayan, comes within the broad definition of mental violence discussed above. Moreover, Shayan witnessed a confrontation between his father and ACM staff during the transfer of the family to the Sierra compound.

The respondent further contends that it did in fact take the preventive measures required by article 19(1):

The Department has put in place appropriate legislative, administrative, social and educational measures for the protection of children in detention as required by this Article. The Department's contract with its detention services provider requires the provision of food, shelter, clothing, bedding, health including mental health services, educational services and recreational activities for all detainees including children.

The Immigration Detention Standards, developed in consultation with the Commonwealth Ombudsman's office, have established standards of care and services expected of the contractor. DIMIA monitors performance under the contract on an ongoing basis and there are financial sanctions which are available for non-compliance.

DIMIA also requires that all staff working in detention centres comply with the relevant state or territory legislation on child neglect or abuse, including sexual abuse. DIMIA reviews the services provider's training programs to ensure that these cover the requirements of such state legislation particularly the reporting of suspicions or allegations of neglect or abuse. Procedures are in place to ensure that state agencies are called in to provide expert advice including on the psychological health and best interests of a child where there are concerns…

The Department and ACM staff at centres make every effort to prevent undesirable and harmful actions occurring and to ensure that detainee children are not exposed to them. Families and children are normally accommodated in a separate part of the detention centre away from single adult males and detention staff closely monitor children, particularly unaccompanied minors. [27]

While it may be the case that the respondent and ACM put such measures in place, I find that those measures consistently failed to protect Shayan from the harm described above with very unfortunate ramifications.

In part, this seems to reflect shortcomings in the internal processes in place at Woomera. By way of example, the decision to transfer the Badraie family to Sierra compound, in circumstances where Shayan was known to be experiencing distress by reason of the detention environment, was apparently taken without consulting appropriate experts (see Mr Lynch's memorandum of 21 January 2001).

More fundamentally, the respondent was simply incapable of protecting Shayan from the types of maltreatment covered by article 19(1) of CROC under the management regime that then existed at Woomera. The respondent could, if it had chosen to, have avoided that maltreatment via the following alternatives:

While the respondent deserves some credit for ultimately undertaking the second measure, it should have been implemented considerably earlier. That is particularly so given the respondent's knowledge (from July 2000) of Shayan's distress arising from the conditions at Woomera and the fact that, at some point prior to 3 January 2001, Shayan was diagnosed with PTSD.

In my view, those were appropriate administrative measures, which the respondent was obliged to pursue by virtue of article 19(1). Its failure to do so expeditiously, in the circumstances of this case, necessarily involves a breach of that article.

The respondent's third contention is as follows:

…..the Department is not responsible for the actions of detainees, including parents, which children may find distressing. As the primary care givers, parents of detainee children also have a responsibility to try and keep their children from witnessing such behaviour by other detainees.

As I have stated above, CROC does not impose obligations upon parents. An international human rights treaty cannot purport to impose, directly, any duties upon entities other than its States parties [28]. Moreover, article 19(1) expressly provides that Australia is obliged to provide certain protective measures in respect of "intra-familial" situations. That is the obligation I am concerned with here, which I consider to have been breached for the reasons outlined above. Vaguely put assertions regarding the conduct of other persons are simply irrelevant.

13.5 Article 37(c) of CROC

Article 37(c) requires States Parties to ensure that:

Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age…

This provision stresses that children deprived of their liberty should not lose their fundamental rights and that their treatment must take account of their age and child development.

The United Nations Committee on the Rights of the Child (the "CRC") [29] has indicated that the detailed standards set out in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice [30] (the "Beijing Rules") and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty [31] (the UN Rules") are relevant to the interpretation of article 37 [32] . Indeed, the travaux préparatoires indicate that article 37(c) was based upon aspects of those standards. [33]

Amongst other things, those standards stress:

Article 37(c) was also ba