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Complaint by Mr Huong Nguyen and Mr Austin Okoye against the Commonwealth of Australia (Department of Immigration and Citizenship, formerly the Department of Immigration and Multicultural and Indigenous Affairs) and GSL (Australia) Pty Ltd

HREOC REPORT NO. 39 (2007)

CONTENTS

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PART A: INTRODUCTION

PART B: EXECUTIVE SUMMARY

PART C: BACKGROUND

PART D: RELEVANT LEGAL FRAMEWORK

PART E: REFUSAL OF REQUESTS TO REMAIN AT MARIBYRNONG IDC

PART F: USE OF FORCE

PART G: CONDITIONS OF THE JOURNEY FROM MARIBYRNONG TO BAXTER

PART H: MEDICAL TREATMENT OF MR NGUYEN PART I: LOSS OF MR NGUYEN’S PERSONAL POSSESSIONS PART J: PLACEMENT OF MR OKOYE IN MANAGEMENT UNIT PART K: DELAYS IN ARRANGING MR OKOYE’S DEPARTURE FROM AUSTRALIA

PART L: FAILURE TO INVESTIGATE COMPLAINTS

PART M: RECOMMENDATIONS

PART N: ACTION TAKEN BY THE RESPONDENTS AS A RESULT OF HEROC'S FINDINGS AND RECOMMENDATIONS

4 December 2007
The Hon Robert McClelland MP
Attorney-General
House of Representatives
Parliament House
CANBERRA ACT 2600

Dear Attorney

I attach a report of my inquiry into complaints by Mr Huong Hai Nguyen and Mr Austin Okoye against the Commonwealth of Australia and GSL (Australia) Pty Ltd, pursuant to section 11(1)(f)(ii) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

I have found that the human rights of Mr Nguyen, Mr Okoye and three other detainees were breached in the course of their immigration detention. This finding relates to the transportation of the detainees from Maribyrnong Immigration Detention Centre to Baxter Immigration Detention Facility on 17 September 2004. The conduct and
conditions of that journey were in breach of the detainees’ human rights pursuant to articles 7 and 10(1) of the International Covenant on Civil and Political Rights (ICCPR). In addition, certain acts toward Mr Nguyen prior to that journey constituted separate breaches of his human rights pursuant to articles 10(1) and 23(1) of the ICCPR.

Yours sincerely,

John von Doussa QC
President

PART A: INTRODUCTION

  1. This is a report into two separate complaints lodged with the Human Rights and Equal Opportunity Commission (‘HREOC’) by Mr Huong Nguyen and Mr Austin Okoye respectively.

  2. The complaints of Mr Nguyen and Mr Okoye make allegations against the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’)1 and GSL (Australia) Pty Ltd (‘GSL’) of breaches of their human rights.

  3. The complaints relate in particular to the transfer of Mr Nguyen, Mr Okoye and three other immigration detainees (collectively ‘the detainees’) on 17 September 2004 from Maribyrnong Immigration Detention Centre (‘Maribyrnong IDC) to Baxter Immigration Detention Facility (‘Baxter IDF’).

  4. Of the detainees, only Mr Nguyen and Mr Okoye lodged formal complaints with HREOC. However, pursuant to my power under s 20(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘the HREOC Act’), I have elected to inquire into whether the human rights of all of the detainees were breached in relation to the conduct of the journey from Maribyrnong IDC to Baxter IDF. Neither GSL nor DIMIA have raised any objection to my adopting this approach.

  5. For privacy reasons, I have de-identified the three detainees who did not make complaints to HREOC. However, I provide the following description of the detainees:

Mr Huong Hai Nguyen 53 Male Vietnamese
Mr Austin Okoye 26 Male Nigerian
Mr A 21 Male Afghani
Mr B 29 Male Chinese
Ms C 24 Female Indonesian
  1. This report also considers additional allegations of human rights breaches raised in the complaints of Mr Nguyen and Mr Okoye. These additional alleged breaches relate to incidents immediately prior to their departure from Maribyrnong IDC and following their arrival at Baxter IDF.

  2. This report is made pursuant to s 11(1)(f)(ii) of the HREOC Act.

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PART B: EXECUTIVE SUMMARY

First leg of the journey breached the human rights of the detainees

  1. The GSL escort of the detainees departed Maribyrnong IDC on 17 September 2004 at approximately 3.30 pm and arrived at Mildura approximately 6 - 7 hours later. After a one hour break the journey resumed, using a different vehicle and different team of GSL officers, arriving at Baxter IDF at approximately 5.15 am the following morning.

  2. The first leg of the journey, from Maribyrnong IDC to Mildura, is the focus of complaint. I have found that the conduct of this first leg of the journey breached the human rights of the detainees under articles 7 and 10(1) of the International Covenant on Civil and Political Rights (‘the ICCPR’),2 on the basis that:

    • the detainees were subjected to degrading treatment, in breach of article 7; and

    • the detainees, as persons deprived of their liberty, were not treated with humanity and with respect for the inherent dignity of the human person, in breach of article 10(1).
  3. This finding is based on the condition of the van used for the first leg of the journey, which was exacerbated by the manner in which the journey was conducted. More specifically, this finding is based on the cumulative effect of the following circumstances:
    • The steel compartments in the van where the detainees were separately held were:
      • claustrophobic and cramped; and
      • dark, with only a small amount of natural light.
    • Due to the configuration of the van and the lack of facilities on board the van, the detainees were unable to:
      • access toilet facilities;
      • communicate with those in charge of their situation;
      • see into each other’s compartments or see outside the van;
      • sleep or ‘cat nap’;
      • stand upright or move about to any extent; or
      • read or participate in any other comparable form of time passing distraction.
    • The air-conditioning system in the van was poorly configured and was not

      operated properly during the journey, resulting in the compartments becoming uncomfortably overheated.
    • The van did not stop for any breaks for the detainees during the 6_ - 7 hour journey from Maribyrnong IDC to Mildura. This lack of breaks:

      • exacerbated the discomfort and harshness of the conditions in the van;
      • created a safety risk, given that the same officer drove the van for such a long period without a break; and
      • resulted in the detainees being forced to suffer the indignity and discomfort of having to urinate in their own compartments. This indignity was further compounded by being:

        • recorded on CCTV tape, as well as being in view of the female driver and male co-driver of the van via the CCTV monitor; and

        • in Mr Nguyen and Mr A’s case, in immediate view of a fellow detainee.

      • None of the detainees were provided with any food during the journey from Maribyrnong IDC to Mildura.

      • With the exception of Mr Nguyen and Mr A, the detainees were not provided with any fluids during the Maribyrnong IDC – Mildura leg of the journey. I also

        note that the need for fluids for the detainees was amplified by the over-heating of the compartments during the journey.
      • The driver and co-driver of the van failed to adequately monitor the CCTV feed and also disregarded obvious:

        • appeals for assistance by the detainees, such as banging on the walls and calling out;

        • signs that the detainees required toilet breaks, particularly the driver seeing, via the CCTV monitor, Mr Nguyen urinating in his compartment;

        • signs that the detainees were overheating in their compartments, such as seeing on the CCTV monitor detainees removing clothing; and

        • general signs of distress of the detainees.
      • The detainees were not provided with any reasonable opportunity to sleep at the Mildura Police Complex prior to continuing on to Baxter IDF.

  4. I have found that the conduct of the second leg of the journey, from Mildura to Baxter IDF, did not breach the human rights of the detainees.

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Additional factors in relation to Mr Nguyen and Mr Okoye

  1. In the case of Mr Nguyen, my finding that his rights under article 10(1) were breached is also based on the poor standard of medical care provided to him immediately prior and subsequent to the journey to Baxter IDF.
  2. In the case of Mr Okoye, my finding that his rights under articles 7 and 10(1) were breached is also based on my finding that, due to the lack of fluids and breaks during the journey from Maribyrnong IDC to Mildura, he suffered the additional indignity of drinking his own urine on two occasions in an attempt to relieve his excessive thirst.

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Additional findings of human rights breaches in relation to Mr Nguyen

  1. In addition to the above, I have also found the following further breaches of the human rights of Mr Nguyen:
    • There was an arbitrary interference with Mr Nguyen’s family life, in breach of articles 17(1) and 23(1) of the ICCPR, by failing to give adequate

      consideration to his family ties in Melbourne before transferring him to Baxter IDF.
    • The use of force against Mr Nguyen in forcibly moving him from his dormitory

      room to the van immediately prior to the journey to Baxter IDF constituted a separate breach of article 10(1).

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Additional allegations where no finding of human rights breaches

  1. Mr Nguyen and Mr Okoye also raised a number of additional allegations in their respective complaints, as follows:
Mr Nguyen Mr Okoye
  1. I have not found any breach of human rights in relation to these additional allegations.

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Recommendations

  1. In relation to the breaches of human rights identified in this report, I make the following recommendations:
    • Compensation be paid by the Commonwealth to the detainees for breaches of their human rights arising from the conduct of the journey from Maribyrnong IDC to Mildura, as follows:
      • $15,000 to each of the detainees;
      • an additional $5,000 to Mr Okoye in respect of the additional indignity he suffered as a result of drinking his own urine in an attempt to relieve his excessive thirst; and

      • an additional $5,000 to Mr Nguyen in respect of:
          • the arbitrary interference with this family life by transferring him to Baxter IDF without giving adequate consideration to his family ties in Melbourne;
        • the excessive use of force in moving him from his dormitory room to the van; and

        • the failure to provide adequate medical attention, particularly prior to the journey to Baxter IDF.
    • The Commonwealth make a formal written apology to each of the detainees for the breaches of their human rights identified in this report.

    • The Commonwealth take all appropriate steps to:
      • locate the detainees (including those removed from Australia) in order to provide them with a copy of this report, compensation and an apology;
      • ensure that a copy of this report is provided to each of the DIMIA and GSL personnel involved in this matter who remain employed by the Commonwealth or GSL; and

      • increase human rights training for all current and future employees of the Department of Immigration and Citizenship (DIAC) (the current department that deals with immigration matters) and GSL personnel, including in relation to the findings in this report.

    • I also adopt in their entirety the recommendations made by Knowledge Consulting following its detailed investigation into this matter (discussed in

      more detail below). A copy of these recommendations is annexed to this report as Annexure A.

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Structure of this report

  1. Following this Executive Summary, Part C of this report sets out the background to the complaints received from Mr Nguyen and Mr Okoye. Part D then outlines the relevant legal framework for this report.
  2. In discussing the various allegations made by Mr Nguyen and Mr Okoye, Parts E K of this report have been structured sequentially. That is, I have discussed the allegations made by Mr Nguyen and Mr Okoye in roughly the order in which the relevant events allegedly occurred, as follows:

    • The decision to transfer Mr Nguyen and Mr Okoye to Baxter IDF and the refusal of their respective requests to remain at Maribyrnong IDC: Part E.
    • The use of force to move Mr Nguyen and Mr Okoye to the van to transfer them to Baxter IDF, when each separately resisted: Part F.
    • The journey from Maribyrnong IDC to Baxter IDF, including my findings in relation to:

      • the van used for the journey; and

      • the manner in which that journey was conducted: Part G.

    • The adequacy of medical treatment provided to Mr Nguyen immediately prior and subsequent to his transfer to Baxter IDF: Part H.

    • The misplacement of Mr Nguyen’s personal possessions as a consequence of his transfer to Baxter IDF: Part I.

    • The placement of Mr Okoye in a management unit at Baxter IDF on 23

      November 2004 when he refused to leave the office of his DIMIA caseworker: Part J.
    • The delays in arranging Mr Okoye’s departure from Australia: Part K.

  3. I have also found that there was a failure to properly investigate legitimate complaints made by Mr Nguyen, Mr Okoye and Mr B upon their arrival at Baxter IDF. In addition, when Mr Nguyen persevered by lodging formal complaints with the Commonwealth Ombudsman (‘the Ombudsman’) and HREOC, the complaints were again not properly investigated. This issue is discussed in Part L.

  4. Part M of this report then sets out my recommendations and Part N provides an outline of the respondents’ responses to those recommendations.

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PART C: BACKGROUND

Complaint from Mr Nguyen

  1. On 26 October 2004, HREOC received a written complaint from Mr Nguyen. The complaint can be divided into five separate allegations:
  • His request to remain at Maribyrnong IDC to be near to his children was unreasonably refused or, alternatively, ignored.

  • GSL officers used excessive force to remove him from his room to the van prior to his transfer to Baxter IDF.

  • The conditions of the journey from Maribyrnong IDC to Baxter IDF were inhumane.

  • He was not provided with adequate medical treatment upon his arrival at Baxter IDF.

  • In the course of transferring him from Maribyrnong IDC to Baxter IDF, some of his personal possessions were misplaced.

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Group complaint letter in support of Mr Nguyen’s complaint

  1. Mr Nguyen did not provide any documents in support of his complaint. However, his complaint was preceded by a letter received by HREOC on 24 September 2004 signed by a number of detainees (‘the Group Complaint Letter’).

  2. The Group Complaint Letter complained in general about the treatment of detainees at Maribyrnong IDC, although the focus of the letter was on the treatment of a ‘Vietnamese old man’ which I find in the context of the letter to be a reference to Mr Nguyen. The letter described the treatment of Mr Nguyen in similar terms to Mr Nguyen’s complaint in relation to the first two allegations noted above.

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Complaint from Mr Okoye

  1. On 21 December 2004, HREOC received a written complaint from Mr Okoye. This complaint can also be divided into five separate allegations:
    • He was not provided with adequate warning of his transfer to Baxter IDF and his request to postpone his departure was unreasonably refused. This appears to

    • have impacted on his ability to prepare and file supplementary submissions in his RRT proceeding.
    • GSL officers used excessive force to remove him from his room to the van prior to his transfer to Baxter IDF.

    • The conditions of the journey from Maribyrnong IDC to Baxter IDF were inhumane.

    • On 23 November 2004 he was placed in a management unit for 48 hours when

      he complained about the delays in arranging his departure from Australia and refused to leave the office of his caseworker.
    • His requests to depart Australia using his own funds were unreasonably refused or, alternatively, ignored.

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Initial Response from DIMIA

  1. On 13 January 2005 DIMIA provided a formal response to Mr Nguyen’s complaint which essentially refuted all of Mr Nguyen’s allegations and denied that his human rights had been breached.

  2. However, in response to Mr Okoye’s complaint, DIMIA advised HREOC on 2 March 2005 that issues had been identified in relation to the transfer of detainees from Maribyrnong IDC to Baxter IDF on 17 September 2004 that warranted further scrutiny. It advised that it had appointed an independent expert (Knowledge Consulting) to investigate the matter further. DIMIA also advised that it would re-examine Mr Nguyen’s complaint.

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Investigation report prepared by Knowledge Consulting

  1. On 28 February 2005 Knowledge Consulting commenced its investigation into the transfer of the detainees from Maribyrnong IDC to Baxter IDF on 17 September 2004. The investigation was conducted by Mr Keith Hamburger, with the assistance of GSL Director of Operations, Mr John McGowan.

  2. In the course of this investigation, Mr Hamburger and Mr McGowan conducted interviews with a range of DIMIA and GSL personnel, as well as:

    • two of the detainees transferred to Baxter IDF, Mr A and Mr B (the remaining detainees had already been removed from Australia); and

    • a detainee who was present at Maribyrnong IDC during the forced removal of

      Mr Nguyen from his room to the van, who I have referred to in this report as Detainee X.
  3. Mr Hamburger and Mr McGowan also reviewed all relevant documents held by DIMIA and GSL, as well as the CCTV footage from the compartments of Mr Nguyen and Mr Okoye during the first leg of the journey from Maribyrnong IDC to Mildura. However, the CCTV footage of the remaining compartments had already been destroyed.

  4. Mr Hamburger and Mr McGowan also conducted inspections of Maribyrnong IDC, Baxter IDF and the van used during the Maribyrnong IDC – Mildura leg of the journey.

  5. In June 2005 Knowledge Consulting completed its report, entitled Investigation Report of Investigation on behalf of the Department of Immigration and Multicultural and Indigenous Affairs Concerning Allegations of Inappropriate Treatment of Five Detainees during Transfer from Maribyrnong Immigration Centre to Baxter Immigration Detention Facility (‘the Investigation Report’).

  6. Both DIMIA and GSL have advised HREOC that they accept the findings of the Investigation Report and neither party has raised any objection to my reliance on it in this matter. Having carefully read and considered the Investigation Report, including the transcripts of interviews conducted by Knowledge Consulting and a review of the relevant CCTV footage, I am satisfied that it is comprehensive, independent, fair and well-supported by the available evidence.
  7. The findings of the Investigation Report are discussed below, where relevant to the various allegations made by Mr Nguyen and Mr Okoye.

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Response from GSL

  1. Subsequent to HREOC being provided with a copy of the Investigation Report, GSL provided a response to each of the complaints by Mr Nguyen and Mr Okoye.
  2. GSL stated that it accepted the findings of the Investigation Report, although made comments in relation to a number of specific issues and allegations. These comments are discussed below, where relevant.

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Additional response from DIMIA

  1. On 16 March 2007, HREOC wrote to both GSL and DIMIA, inviting further submissions in relation to:
    1. my preliminary view that the treatment of the detainees appeared to constitute ‘degrading treatment’ in breach of article 7 of the ICCPR;
    2. my preliminary view that the transfer of Mr Nguyen from Maribyrnong IDC to Baxter IDF was, in the circumstances, an arbitrary interference with his family in breach of articles 17(1) and 23(1) of the ICCPR;
    3. my intention to direct the findings of this report to all of the detainees involved in the transfer, not simply Mr Nguyen and Mr Okoye; and
    4. appropriate recommendations.
  1. GSL elected not to provide any further submissions on the above issues, relying instead on its earlier response.

  2. On 15 June 2007, DIMIA provided a response which only commented on issue (b), namely the application of articles 17(1) and 23(1) in relation to Mr Nguyen. DIMIA’s submissions on this issue are outlined in Part E, where relevant.

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Loss of contact with Mr Nguyen and Mr Okoye

  1. HREOC has been advised by DIMIA that Mr Nguyen was returned to Vietnam on 18 November 2004 and Mr Okoye was returned to Nigeria on 13 January 2005.

  2. HREOC has been unable to contact either Mr Nguyen or Mr Okoye since their removal from Australia. In addition, I have been advised by the Ombudsman’s office that it has lost contact with Mr Nguyen’s daughter-in-law who had originally lodged the complaint with the Ombudsman on Mr Nguyen’s behalf.

  3. Notwithstanding this loss of contact, I have formed the opinion that I have sufficient material upon which to make relevant findings in this matter.

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Naming of individual employees of DIMIA and GSL

  1. The Investigation Report made a number of critical findings in relation to the actions of particular employees of DIMIA and GSL. HREOC has not sought individual responses from these individuals and it is therefore not appropriate that they be named in this report.4

  2. However, in order to provide some organisational context to the events that occurred, I have referred to certain individuals by reference to their role within DIMIA or GSL.

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PART D: RELEVANT LEGAL FRAMEWORK

Human rights inquiry and complaints function5

  1. Section 11(1)(f) of the HREOC Act provides that HREOC has the function of inquiring into any act or practice that may be inconsistent with or contrary to any human right. Section 20 (1)(b) requires HREOC to perform that function when a complaint in writing is made to it alleging such an act or practice, such as the complaints received from Mr Nguyen and Mr Okoye.

  2. Pursuant to s 20(1)(c), HREOC shall also perform its human rights inquiry function under s 11(1)(f) when ‘it appears to the Commission to be desirable to do so.’ In the circumstances of this complaint, I have considered it desirable to also inquire into whether there was a breach of the human rights of the other detainees transferred from Maribyrnong IDC to Baxter IDF on 17 September 2004, namely Mr A, Mr B and Ms C.

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Act or practice by or on behalf of the Commonwealth

  1. The expressions ‘act’ and ‘practice’ are defined in s 3(1) of the HREOC Act to include an act done or a practice engaged in ‘by or on behalf of the Commonwealth’, or under an enactment. Section 3(3) of the HREOC Act also provides that a reference to, or to the doing of, an act includes a reference to a refusal or failure to do an act.
  2. In the circumstances of these complaints, many of the relevant acts (or omissions) were performed by officers employed by GSL, rather than the Commonwealth. GSL is a private company contractually engaged by the Commonwealth to provide immigration detention centre services.
  3. It is not necessary for me to define the precise scope of the expression ‘on behalf of the Commonwealth’. It is sufficient for present purposes that I find that this expression includes an act done by a GSL officer during an authorised operation in relation to a detention centre or detainee, notwithstanding that the particular act may not have been specifically authorised.

  4. Applying the above interpretation, I consider that all relevant acts the subject of this inquiry fall within the scope of s 11(1)(f) as being acts done ‘by or on behalf of the Commonwealth’.

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Inconsistent with or contrary to any human right

  1. The phrase ‘inconsistent with or contrary to any human right’ in Division 3 of the HREOC Act is not defined or otherwise explained in the Act. This raises a question as to whether the threshold for an act being inconsistent with a human right might be lower than the threshold for an act that is contrary to a human right.
  2. On one view, it could be argued that by using two different expressions, Parliament intended that two different meanings should apply. Moreover, it could be said that ‘contrary to’ implies a higher threshold - that the act is antithetical to a person’s human rights. By contrast, ‘inconsistent with’ could arguably encompass an act that is merely not in harmony with a person’s human rights, but not necessarily in direct violation of those rights.
  3. The United Nations Human Rights Committee (‘UNHRC’), established by the ICCPR as the most authoritative interpreter of the ICCPR, has not directly considered this issue. However, its jurisprudence does not appear to draw any material distinction between an act being inconsistent with, compared with contrary to, a person’s human rights.6

  4. My preferred approach is to interpret the phrase ‘inconsistent with or contrary to’ as a composite expression referring simply to whether a person’s human rights have been breached or violated, as those terms are applied in international human rights jurisprudence. However, it is not necessary for me to resolve this question at this time as I am satisfied that no distinction arises in this matter. This is because I am satisfied that the relevant acts the subject of my findings in this report were both inconsistent with and contrary to the human rights of the detainees. The same is true in the case of my findings where no breach of human rights had occurred.
  5. For convenience, throughout this report I have referred to an act that is inconsistent with or contrary to a detainee’s human rights as a ‘breach’ of the relevant human right.

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‘Human rights’ relevant to these complaints

  1. The expression ‘human rights’ is defined in s 3 of the HREOC Act and includes the rights and freedoms recognised in the ICCPR, which is set out in Schedule 2 to the HREOC Act.

  2. Articles 7 and 10(1) of the ICCPR are of particular relevance to this inquiry. These articles provide:
    Article 7

    No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

    Article 10

    (1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

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Relationship between article 7 and 10(1)

  1. There is clearly an overlap between article 7 and 10(1) in the case of detained persons. That is, inhuman or degrading treatment or punishment will also constitute a lack of treatment with humanity and respect for the inherent dignity of the human person. However, the UNHRC has confirmed that the threshold for establishing a breach of article 10(1) is lower than the threshold for establishing ‘cruel, inhuman or degrading treatment’ within the meaning of article 7 of the ICCPR.7

  2. Furthermore, the UNHRC has confirmed that whilst article 7 imposes a prohibition against certain forms of treatment or punishment, article 10(1) imposes a positive obligation upon States to protect the humanity and dignity of detained prisoners due to their particular vulnerability:

    Article 10, paragraph 1, imposes on State parties a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of their liberty, and complements the ban on torture or other cruel, inhuman or degrading treatment or punishment contained in article 7….Thus, not only may persons deprived of their liberty not be subjected to treatment which is contrary to article 7…but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as that of free persons…8

  3. Professor Manfred Nowak summarises the relationship between articles 7 and 10(1) as follows:

    [S]everal general conclusions may be drawn for the interpretation of Art. 10(1): In contrast to Art. 7, Art. 10 relates only to the treatment of persons who have been deprived of their liberty. Whereas Art. 7 primarily is directed at specific, usually violent attacks on personal integrity, Art. 10 relates more to the general state of a detention facility or some other closed institution and to the specific conditions of detention. As a result, Art. 10 primarily imposes on State parties a positive obligation to ensure human dignity. Regardless of economic difficulties, the State must establish a minimum standard for humane conditions of detention (requirement of human treatment). In other words, it must provide detainees and prisoners with a minimum of services to satisfy their basic needs (food, clothing, medical care, sanitary facilities, communication, light, opportunity to move about, privacy, etc). ... Finally it is…stressed that the requirement of humane treatment pursuant to Art. 10 goes beyond the mere prohibition of inhuman treatment under Art. 7 with regard to the extent of the necessary ‘respect for the inherent dignity of the human person’.9

  4. Notwithstanding that article 7 is primarily designed to redress specific attacks on detainees, a specific use of force against a detainee which does not reach the requisite threshold to constitute a breach of article 7 may nevertheless be sufficient to constitute a breach of article 10(1).10

  5. A more detailed discussion of the elements of article 7 is contained in Part G of this report, in relation to the conditions of the journey from Maribyrnong IDC to Mildura.

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Standard Minimum Rules and the Body of Principles

  1. The content of article 10(1) has also been developed with the assistance of a number of United Nations instruments that articulate minimum international standards in relation to people deprived of their liberty, including:
      • The Standard Minimum Rules for the Treatment of Prisoners (the ‘Standard Minimum Rules’);11 and

      • The Body of Principles for the Protection of all Persons under Any Form of Detention (the ‘Body of Principles’).12

  2. The UNHRC has indicated that compliance with the Standard Minimum Rules and the Body of Principles is the minimum requirement for compliance with the obligation imposed by the ICCPR that people in detention are to be treated humanely under article 10(1).13

  3. As a matter of international law, the Standard Minimum Rules and Body of Principles are not binding of themselves on Australia and there is no specific obligation to implement them in Australia. However, the Standard Minimum Rules and the Body of Principles do elaborate the standards which the international community considers acceptable and are relevant to interpreting the scope and content of the protection given to persons deprived of their liberty under article 10(1).

  4. The Body of Principles is expressed to apply for the protection of all persons under any form of detention or imprisonment. By contrast, the Standard Minimum Rules are directed at the treatment of prisoners and the management of penal institutions. Strictly speaking, immigration detention facilities are not penal institutions in the sense that they do not house convicted criminal or people charged with a criminal offence. Nevertheless, the Standard Minimum Rules are expressed to set out minimum conditions which are accepted as suitable by the United Nations for the general management of institutions housing all categories of prisoner.

  5. I therefore consider that both the Standard Minimum Rules and the Body of Principles provide valuable guidance in interpreting and applying article 10(1) of the ICCPR. The particular Standard Minimum Rules and Body of Principles relevant to this inquiry are set out below where relevant to the various allegations made by Mr Nguyen and Mr Okoye.

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Other relevant standards

  1. DIMIA has provided copies of a number of its policies, known as Immigration Detention Standards, which relate to these complaints. It is my understanding that these policies govern the provision of immigration detention services by GSL and prescribe the standard of care to be provided to detainees.

  2. I have referred throughout this report to excerpts from DIMIA’s policies where relevant to the various allegations made by Mr Nguyen and Mr Okoye.

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Other articles of the ICCPR relevant to this inquiry

  1. The following articles of the ICCPR are also relevant to particular allegations made by Mr Nguyen and Mr Okoye:
    • Article 13 (Right of an alien to submit reasons against his or her expulsion).

    • Article 14(1) (Right to a fair hearing).

    • Article 17(1) (Prohibition against arbitrary interference with family).

    • Article 23(1) (Protection of the family).

  2. The content and application of these articles are discussed in more detail below, where relevant to the particular complaints made by Mr Nguyen and Mr Okoye.

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Standard of proof

  1. In making my findings, I have applied the civil standard of proof, namely the balance of probabilities. I have assessed the evidence in light of the well-established principle set out by Dixon J in Briginshaw v Briginshaw,14 in which his Honour said:

    [R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. 15

  2. I regard the allegations made in this matter to be serious ones and recognise, in particular, that adverse findings may impact upon DIMIA, GSL and their staff. I have taken particular care in assessing the evidence before reaching my findings.

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PART E: REFUSAL OF REQUESTS TO REMAIN AT MARIBYRNONG IDC

MR NGUYEN

Complaint

  1. Mr Nguyen alleged that he requested to remain at Maribyrnong IDC to enable him to be near to his children, however this request was unreasonably refused or, alternatively, ignored.

Relevant factual findings

  1. I accept the following assertions made by DIMIA in its responses to Mr Nguyen’s complaint:
    • Maribyrnong is a small centre, designed for short-stay detainees only. By contrast, Baxter IDF was specifically built to house detainees for extended periods.
    • It is the usual practice of DIMIA that decisions to transfer detainees are taken by DIMIA after consultations with GSL, taking into account the capacity of the centre, the probable length of detention and the individual circumstances of the detainee. I also accept that it is DIMIA’s usual practice that detainees with close family ties in Melbourne are not normally transferred to another centre.
    • At the time of his induction at Maribyrnong IDC, Mr Nguyen did not advise DIMIA that he had any family in Australia.

    • Prior to deciding to transfer Mr Nguyen, the Acting DIMIA Business Manager at Maribyrnong IDC (‘the DIMIA Business Manager’), checked Mr Nguyen’s visitor records to see whether he had family ties in Melbourne. These records showed that visitors with the same surname of ‘Nguyen’ had visited Mr Nguyen. However, they had identified themselves as friends, not family, of Mr Nguyen. It has since been established that these persons were in fact Mr Nguyen’s son

      and daughter-in-law.16 It is not known why they had identified themselves as friends of Mr Nguyen, rather than family.
    • Approximately five hours before departure, Mr Nguyen was advised of his transfer to Baxter IDF by the DIMIA Business Manager, with the aid of a Vietnamese interpreter.
    • If information concerning Mr Nguyen’s family had been communicated to DIMIA’s Central Office, even on the day of his departure, DIMIA would have re-examined his situation and, if necessary, delayed his transfer to investigate

      his circumstances further. However, DIMIA is unable to say now whether or not this would have led to Mr Nguyen remaining at Maribyrnong IDC.
  1. The DIMIA Business Manager asserted that at no stage during his discussion with Mr Nguyen about his transfer to Baxter IDF did Mr Nguyen mention that he had family in Melbourne. By contrast, Mr Nguyen alleged in his complaint that, when told of his transfer, he explicitly stated that he wanted to remain at Maribyrnong IDC to be near to his family.

  2. I accept the allegation by Mr Nguyen that he raised the fact that he had family in Melbourne during his discussion with the DIMIA Business Manager immediately prior to his transfer. My reasons for preferring the account of Mr Nguyen on this issue are as follows:
    • As noted above, it has been established that Mr Nguyen’s son and daughter-in law lived in Melbourne and visited him at Maribyrnong IDC on a number of occasions (albeit under the guise of being friends, rather than family).
    • In his interview with Knowledge Consulting, the GSL Manager of Maribyrnong IDC (‘the Maribyrnong Manager’) made the following comments:

      • He overheard Mr Nguyen shouting in the office of the DIMIA Business Manager when Mr Nguyen was informed of his transfer. The Maribyrnong Manager stated that he attended to lend assistance and heard the interpreter say that Mr Nguyen did not wish to go to Baxter IDF because he had a daughter in Melbourne who had been visiting him at Maribyrnong IDC.

      • Mr Nguyen ‘tried for virtually 4 and a half hours to convince DIMIA that he shouldn’t go’.

      • As the GSL officers took Mr Nguyen to the van, other detainees in the centre were saying ‘he has got family here, why are they sending him?’

      • When Mr Nguyen was put into the van, he was still agitated and saying ‘I don’t want to go, I’ve got family here, I don’t want to go’.

    • A fellow Vietnamese detainee who was present when Mr Nguyen was forcibly removed from his room, Detainee X, was also interviewed by Knowledge Consulting. Detainee X stated that when he and the Maribyrnong Manager attempted to calm Mr Nguyen down (discussed further below), Detainee X

      translated to the Maribyrnong Manager that Mr Nguyen did not want to leave because he had children in Melbourne.
    • The Group Complaint Letter stated:

    On the 17/9/04 the immergration (sic) officers told him in the morning that he was getting transferred to Baxter IDF . He didn’t want to go there as he would not be able to see his children and he started crying and begging not to go there.

    • There is no other plausible explanation for why Mr Nguyen was so resistant to leaving Maribyrnong IDC.
  3. In any event, I note that the Investigation Report found that planning of the transfer had commenced at least as early as 20 August 2004 when DIMIA first raised the necessary paperwork for the transfer. Mr B stated that he was advised of his transfer a week prior to departure. However, as noted above, it is not in dispute that Mr Nguyen was not informed of his transfer until the morning of his departure.

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Articles 17(1) and 23(1) of the ICCPR

  1. Mr Nguyen’s complaint raises a potential breach of articles 17(1) and 23(1) of the ICCPR, which provide:
Article 17(1)

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Article 23(1)

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

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Relationship between articles 17(1) and 23(1)

  1. Professor Manfred Nowak attempts to explain the distinction between articles 17(1) (in relation to family) and 23(1) as follows:

    [T]he significance of Art. 23(1) lies in the protected existence of the institution "family", whereas the right to non-interference with family life is primarily guaranteed by Art. 17. However, this distinction is difficult to maintain in practice.17

  2. However, to date, this theoretical distinction has failed to play out in the jurisprudence of the UNHRC. For example, in Sahid v New Zealand,18 the author alleged a breach of article 23(1). He alleged that his deportation from New Zealand violated his right to protection of his family by the State, as his adult daughter had re-settled from Fiji to New Zealand. Oddly, he raised no breach of article 17(1). The State party argued that the claim under article 23(1) was inadmissible on the basis that:

    the obligation under article 23, paragraph 1, is an ‘institutional guarantee’, whereby the State is obliged within broad discretion to protect positively the family unit.19

  3. The State Party then proceeded to demonstrate that the family unit as an institution was appropriately recognised and protected under New Zealand law, including in relation to deportation matters.20

  4. The UNHRC rejected this admissibility argument, concluding that the facts gave rise to an arguable claim concerning article 23(1).21The Committee did not elaborate on this issue. However, its conclusion would appear to accept a broad view of article 23(1) that encompasses a protection against State interference with a person’s particular family, rather than simply protection of the family unit as an institution.22
  5. The UNHRC then rejected the claim on its merits. However, in doing so, its reasoning was essentially that the interference with the author’s family was not arbitrary. No attempt was made to explain how this reasoning – which was based on the principles applicable to article 17(1) – was equally applicable to article 23(1).

  6. Other decisions of the UNHRC have also tended to reach the same conclusion on article 17(1) (in relation to family) as for article 23(1).23 No real attempt has been made in these decisions, or in the UNHRC’s General Comments,24 to explain how these two articles interact or differ. As noted by Joseph, Schultz and Castan:

    [D]espite an apparent qualitative difference between the article 17 and 23 guarantees, most cases regarding family rights have concerned violations, or exonerations, of States under both articles.25

  7. Professor Nowak has suggested that in cases involving a State’s negative interference with a person’s family, it should be assessed primarily in relation to article 17(1).26

  8. This approach appears to have been adopted, albeit not explicitly, in Winata v Australia,27 where the UNHRC found that the deportation of two parents constituted an arbitrary interference with their family. This was on the basis that the decision to deport failed to adequately take into consideration the impact on the parents’ child, who was an Australian resident and had grown up entirely in Australia. The UNHRC concluded that there was a breach of article 17(1) ‘in conjunction with’ article 23(1).28 However, this conclusion was reached on the basis of an analysis of article 17(1) only. Other UNHRC cases relating to an alleged arbitrary interference with a person’s family have taken a similar approach.29

  9. On the basis of the above, it appears that in cases alleging a State’s arbitrary interference with a person’s family, it is appropriate to assess the alleged breach under article 17(1). If so, it will usually follow that that breach is in addition to (or in conjunction with) a breach of article 23(1).

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Discussion of whether article 17(1) breached

  1. There are three issues to consider in relation to whether there was a breach of Mr Nguyen’s rights under article 17(1) in this matter:
    • Did Mr Nguyen have a ‘family’ in Melbourne within the meaning of article 17(1)?

    • If so, was there an ‘interference’ with that family?

    • If so, was that interference ‘arbitrary’? (On the available material I accept that, to the extent that there was any interference with Mr Nguyen’s family, it was not unlawful).
‘Family’
  1. The UNHRC has confirmed on a number of occasions that ‘family’ is to be interpreted broadly.30 However, more than a formal familial relationship (ie father-son) is required to demonstrate a family for the purposes of article 17(1). Some degree of effective family life or family connection must also be shown to exist.31 For example, in Balaguer Santacana v Spain,32 after acknowledging that the term ‘family’ must be interpreted broadly, the UNHRC went on to say:

    Some minimal requirements for the existence of a family are, however, necessary, such as life together, economic ties, a regular and intense relationship, etc.33

  2. I am satisfied that the ‘minimal requirements’ referred to above would be met in the case of Mr Nguyen’s relationship with his son and daughter-in-law, for the following reasons:
    • Mr Nguyen received a number of visits from his son and daughter-in-law whilst at Maribyrnong IDC.

    • The Group Complaint Letter stated that Mr Nguyen had originally been sponsored by his children to come to Australia for a holiday and he had then overstayed his visa.
    • Mr Nguyen stated in his complaint that he had been reliant on his children to provide him with food at Maribyrnong IDC, as he could not eat the curry that he was often served.
    • It is clear that Mr Nguyen was very upset about being moved away from his children in Melbourne.

    • I am advised by the Ombudsman’s office that Mr Nguyen’s complaint to the Ombudsman was lodged on his behalf by his daughter-in-law.

‘Interference’
  1. There is no clear guidance in the jurisprudence of the UNHRC as to whether a particular threshold is required in establishing that an act or practice constitutes an ‘interference’ with a person’s family. However, in one decision, the UNHRC appeared to accept that a ‘considerable inconvenience’ could suffice.34

  2. On a narrow view, it could be argued that there was no substantial interference with Mr Nguyen’s family given that no restriction was imposed on his contact with his family. His family remained at liberty to contact Mr Nguyen, including in person (albeit with greater difficulty).35

  3. An argument along these lines was made by DIMIA in its subsequent response in this matter, dated 15 June 2007. On the one hand, DIMIA accepted that its transfer of Mr Nguyen constituted an interference with his family life. However, it also argued that:

    The Department submits that any interference with the family that inadvertently occurred did not have severe consequences, given that the disrupted relations were between a father and his adult son and daughter-inlaw, with no spouse or dependent children involved.

    It is Departmental policy that a person held in detention is able to make phone calls, and receive and send postal mail and faxes. As such, the complainant would still have been able to maintain contact with his family in Melbourne, although personal visits would have been more difficult to arrange.

  4. However, I consider that the word ‘interference’ in article 17(1) should be given its ordinary meaning. I see no reason for adding a proviso not included in the wording of article 17(1) that the interference must also be substantial.

  5. I observe that cases dealing with interference with a person’s privacy36 or correspondence37 have not required that an interference must be substantial in order to fall within the scope of article 17(1). I also consider that a robust prohibition against interferences with family life is consistent with the requirement under article 23(1) that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’

  6. To the extent that the operation of article 17(1) should be confined to serious cases, I note my power to not inquire, or to discontinue any existing inquiry, into a complaint that I consider to be frivolous or vexatious.38 I also consider that a threshold of seriousness is provided by the fact that article 17(1) only prohibits interferences that are unlawful or arbitrary. Furthermore, the seriousness of any unlawful or arbitrary interference is a matter that can be taken into account in considering any appropriate remedy.

  7. When ‘interference’ is interpreted using its ordinary meaning, I am satisfied that the removal of Mr Nguyen from Maribyrnong IDC to Baxter IDF amounted to an interference with his family life within the meaning of article 17(1). This is demonstrated by the simple fact that Mr Nguyen’s only known family ties in Australia were his son and daughter-in-law who resided in Melbourne, a considerable distance from Baxter IDF. I also note that whilst in detention in Maribyrnong IDC, Mr Nguyen had received regular visits from his son and daughter-in-law. These visits would no doubt be substantially impaired by his transfer to Baxter IDF.

  8. In addition, I note that Mr Nguyen was removed from Australia approximately two months after his transfer to Baxter IDF. It is therefore possible (if not probable) that his transfer to Baxter IDF interfered with his family by preventing him from farewelling his family in person before being returned to Vietnam.

  9. Finally, as noted above, DIMIA has stated that it ‘admits that interference with the family may have inadvertently resulted from the transfer of the complainant (Mr Nguyen)’. To the extent that DIMIA also made submissions regarding the severity of its interference with Mr Nguyen’s family, I have taken these submissions into account when considering an appropriate remedy to recommend in relation to this issue.

‘Arbitrary’
  1. In its General Comment on article 17(1), the UNHRC confirmed that a lawful interference with a person’s family may nevertheless be arbitrary unless it is in accordance with the provisions, aims and objectives of the Covenant and is reasonable in the particular circumstances.39
  2. It follows that the prohibition against arbitrary interferences with family incorporates notions of reasonableness.40 In relation to the meaning of ‘reasonableness’, the UNHRC stated in Toonan v Australia:41

    3. The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.42

  3. DIMIA has stated that its interference with Mr Nguyen’s family was not arbitrary, as any interference was ‘inadvertent’ and his transfer ‘did not involve unreasonableness, injustice, unpredictability and was not disproportionate in the circumstances.’
  4. However, I consider that a failure by a State to give adequate consideration to the impact on a person’s family life prior to ‘interfering’ with that family life is a relevant indicia of arbitrariness. This is consistent with the UNHRC’s jurisprudence on article 17(1),43as well as the UNHRC’s interpretation of ‘arbitrary’ in the context of the prohibition against arbitrary detention under article 9 of the ICCPR.44I also note that in Estrella v Uruguay,45the UNHRC found that Article 17(1) encompasses a general right of prisoners to receive regular visits by family members.46

  5. I accept that there may be reasonable and legitimate operational reasons for DIMIA to transfer a detainee to another detention facility. I also accept that it was reasonable and legitimate for DIMIA to have a policy of using Maribyrnong IDC primarily as a short-stay facility. I also accept that DIMIA’s records did not disclose that Mr Nguyen had any family members in Australia.

  6. Nevertheless, I consider that adequate consideration was not given to Mr Nguyen’s family ties in Melbourne before his transfer to Baxter IDF. This appears to have stemmed from the failure to consult with Mr Nguyen directly until the day of his transfer. By this time, the officers involved seem to have regarded the decision to transfer Mr Nguyen as final and therefore disregarded pleas by Mr Nguyen to remain at Maribyrnong IDC to be close to his family.

  7. I do not consider that it was sufficient for DIMIA to assume that Mr Nguyen had no family ties based on his visitor records. It appears from the interviews conducted by Knowledge Consulting, particularly with the Maribyrnong Manager, that visitor records were known to be unreliable for this purpose. Similarly, I do not consider that it was adequate for DIMIA to rely on Mr Nguyen’s induction interview to the effect that he did not have family in Australia. At the time of being inducted, there might be understandable reasons to explain Mr Nguyen’s reluctance to disclose family members based on, for example, a fear they might also be rounded up and detained by the authorities.
  8. Rather, I consider that when DIMIA was considering whether to transfer Mr Nguyen to Baxter IDF, it should have sought confirmation from Mr Nguyen of any family ties in Australia. This would not have imposed an unreasonable burden on DIMIA, yet would have provided a more secure basis for DIMIA’s assumption that the transfer would not result in an arbitrary interference with his family life.

  9. Alternatively, as noted above I have accepted that, immediately after being told of his pending transfer, Mr Nguyen raised with the DIMIA Business Manager that he had family in Australia. From this point onwards, DIMIA was clearly on notice of Mr Nguyen’s family and could have taken steps to review his transfer. It is therefore not correct for DIMIA to say that its interference with Mr Nguyen’s family was inadvertent. As noted above, the officers involved were informed by Mr Nguyen of his family ties in Melbourne, yet disregarded those appeals and pressed ahead with the transfer.
  10. If adequate consideration had been given to Mr Nguyen’s family, DIMIA is unable to now say whether or not Mr Nguyen would have still been transferred. Whilst this raises some doubt as to whether the failure to give consideration to Mr Nguyen’s family was of any consequence, I am nevertheless satisfied that this failure was sufficient to make the decision to transfer Mr Nguyen arbitrary. In reaching this finding, I note the following:

    • DIMIA has advised that it’s usual practice was to not transfer detainees who had close family ties to Melbourne. A detainee’s family was therefore clearly an important, albeit not determinative, consideration which should have been taken into account.
    • I have found that Mr Nguyen did inform officers of DIMIA and GSL of his family in Melbourne in the course of protesting about his transfer. The failure to communicate this information to the relevant persons within DIMIA rests entirely with the respondents. Any doubt as to what might have occurred but for this failure therefore rests with the respondents. It would not be appropriate to now give the respondents the benefit of that doubt.
    • If adequate consideration had been given to Mr Nguyen’s family in Melbourne, he presumably would have at least been afforded an opportunity to express his views on the subject. Failing that, he possibly would have had an opportunity to say a proper farewell to his family. I consider that this would have ameliorated the impact of the interference with his family.

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Conclusion regarding articles 17(1) and 23(1)

  1. I conclude that the respondents interfered with Mr Nguyen’s family by transferring him to Baxter IDF. I also conclude that, in deciding to transfer Mr Nguyen, there was a failure to give adequate consideration to the interference with his family. This failure was sufficient to make the interference with Mr Nguyen’s family arbitrary.
  2. On the basis of the foregoing, I find that there was a breach of Mr Nguyen’s human rights under article 17(1) in connection with article 23(1).

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MR OKOYE

Complaint

  1. Mr Okoye alleged that, when told of his transfer to Baxter IDF, he requested to remain at Maribyrnong IDC, at least until his RRT submissions were filed. He further alleged that this request was unreasonably refused or, alternatively, ignored.

  2. In particular, Mr Okoye alleged that his RRT application had been heard two days prior and the RRT member had asked him to file further submissions by that day (17 September 2004). Whilst not entirely clear from his written complaint, it appears that Mr Okoye alleges that he was unable to complete or file those submissions due to the lack of advance warning of his transfer.

  3. Mr Okoye also alleged that he was denied the opportunity to contact his lawyer after he was advised of his transfer.

  4. Mr Okoye’s allegations raise potential breaches of articles 10(1), 13 and 14(1) of the ICCPR.

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Article 10(1) of the ICCPR

  1. Mr Okoye has alleged that he was denied access to his lawyer. This allegedly occurred at a particularly important time in relation to his application before the RRT.

  2. There is no explicit right under the ICCPR for an immigration detainee to communicate with his or her lawyer. However, as discussed above in Part D, the content of article 10(1) of the ICCPR has been elaborated upon by the Standard Minimum Rules and Body of Principles.

  3. Principle 18 of the Body of Principles sets out a detained person’s right to communicate with his or her lawyer:

    Principle 18

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

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

    The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.

  4. The wording of Principle 18 is strict. It provides that a detained person is entitled to communicate with his legal counsel without delay. This right may not be suspended or restricted except in extremely limited circumstances. Even then, Principle 15 provides that access to a detainee’s legal counsel shall not be denied for more than a matter of days.47

  5. It is in dispute whether Mr Okoye was in fact denied the right to contact his lawyer. The Investigation Report, whilst not making any finding on this issue, referred to an internal DIMIA email responding to enquiries about the circumstances surrounding the transfer of the detainees. The email stated:

    I don’t recall any specific protests from Mr Okoye about any RRT or MRT hearings at the time of being told he was being transferred to Baxter IDF. He was placed in an interview room following being advised of his transfer, while I advised other detainees of their transfer. ... a telephone call to his solicitor was facilitated. (emphasis added)

  6. On the material before me I am unable to resolve the conflicting evidence regarding whether Mr Okoye was refused access to his lawyer. I am therefore of the view that I cannot be positively satisfied that this allegation is made out.

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Article 13 of the ICCPR

  1. Article 13 of the ICCPR provides:

    An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

  2. I am unable to determine on the material before me whether Mr Okoye was lawfully in the territory of the Commonwealth, although his detention as an immigration detainee would suggest that he was not.
  3. Nevertheless, taking Mr Okoye’s complaint at its highest and assuming that Mr Okoye was prevented from filing supplementary submissions as requested by the RRT Member, I do not consider that this would reach the requisite level of severity to constitute a breach of his rights (if any) under article 13.

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Article 14(1) of the ICCPR

  1. Article 14(1) of the ICCPR relevantly provides:

    All persons shall be equal before the courts and tribunals. In the determination of any criminal charges against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. ...

  2. There is some uncertainty as to whether a ‘suit at law’ includes proceedings in relation to a person’s deportation or immigration status.48I do not need to decide that question here. It is sufficient for me to conclude that Mr Okoye’s complaint does not disclose that he was denied a fair and public hearing in relation to his RRT application, notwithstanding that, due to the actions of the respondents, he may have been:
    • prevented from filing supplementary submissions in time; and

    • denied access to his lawyer from the time he was informed of his transfer until some time after his arrival at Baxter IDF.

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PART F: USE OF FORCE

MR NGUYEN

Complaint

  1. Mr Nguyen alleged in his complaint that prior to his transfer from Maribyrnong IDC to Baxter IDF, the following occurred:
    • Six or seven GSL officers burst into his dormitory room without warning.

    • The officers pushed his head against the wall and then leaned heavily on his body on the floor. Mr Nguyen claims that his body was pressed against a cassette player which compounded the pain and discomfort of the weight of the GSL officers.
    • One of the GSL officers used his thumb to press into a sensitive ‘pressure point’ behind his ear. Mr Nguyen claims that the pain was unbearable, causing him to scream.
    • He was then handcuffed, carried out of the room ‘like a pig’ and then thrown into a van.

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Uncontentious findings

  1. I make the following findings on issues that appear to be uncontentious:
    • When Mr Nguyen was told on the morning of 17 September 2004 that he was to be transferred from Baxter IDF to Maribyrnong IDC, he became agitated and strongly requested to remain at Maribyrnong IDC.
    • Mr Nguyen was then returned to his dormitory room.

    • Several hours later, GSL officers attended Mr Nguyen’s dormitory room to remove him to the van. They were not accompanied by an interpreter.

    • Force was used on Mr Nguyen to remove him from his room, although there is

    • some dispute over the events that preceded that use of force and the level of force that was used (discussed below).
    • Mr Nguyen was handcuffed and carried from the room to the van.

    • The handcuffs were removed from Mr Nguyen prior to the journey to Baxter IDF commencing.

    • Mr Nguyen was not medically examined following the use of force.

    • The removal of Mr Nguyen from his dormitory room to the van was not video recorded.

    • Incident reports in relation to the use of force on Mr Nguyen were prepared by the Maribyrnong Manager and the GSL Operations Manager at Maribyrnong IDC. No incident reports were prepared by any of the other GSL officers involved in the incident.

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Lack of video footage

  1. DIMIA’s policy on the use of force requires that, wherever practical, when force is used in a planned way it should be video recorded.49

  2. I find that the use of force against Mr Nguyen should have been video recorded. In making this finding, I am satisfied that video recording was practical in the circumstances, for the following reasons:

    • It is not in dispute that video equipment was available.

    • The Maribyrnong Manager stated that he was aware prior to attending Mr Nguyen’s room that Mr Nguyen was agitated and refusing to leave his room. I consider that at this point he should have reasonably contemplated that force may have been required, thus requiring video recording.
    • The Maribyrnong Manager stated that calling for video equipment would have resulted in a delay of approximately 5 – 10 minutes. I do not consider that this would have been an unreasonable delay in the circumstances.
    • The Maribyrnong Manager claimed that, prior to instructing officers to use force on Mr Nguyen, he attempted to diffuse the situation with the assistance of a fellow Vietnamese detainee, Detainee X. According to Detainee X, this continued for approximately 10 minutes. There is no apparent reason why video equipment could not have been called for whilst this took place.
    • Prior to using force on Mr Nguyen, the Maribyrnong Manager had already authorised the use of force on Mr Okoye to move him to the van (discussed below). I consider that he should have been aware from his dealings with Mr Okoye that force may have been also required to move Mr Nguyen, given that Mr Nguyen was also refusing to leave his room.
    • One of the other GSL officers involved in the incident acknowledged in his interview with Knowledge Consulting that video recording could and should have been arranged.

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Incident reports

  1. DIMIA’s policy on the use of force also requires that when force has been used as part of an organised team, every officer involved in the incident must complete an incident report. The policy also requires that incident reports must provide an accurate description of the kind of force used and the reasons why it was considered necessary.50

  2. As noted above, of the six GSL officers involved in the use of force against Mr Nguyen, only the Maribyrnong Manager and the GSL Operations Manager prepared incident reports. I agree with the strong criticisms in the Investigation Report that those two incident reports were completely lacking in detail and did not comply with DIMIA’s policy on the use of force. I also agree with the criticism in the Investigation Report that all officers involved in the use of force against Mr Nguyen should have prepared incident reports.

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Events that preceded the use of force

Threatening behaviour by Mr Nguyen
  1. Mr Nguyen stated in his complaint that GSL officers burst into his room without warning. Similarly, Detainee X, the Vietnamese detainee who witnessed the incident, made no reference in his interview with Knowledge Consulting to any threatening behaviour on the part of Mr Nguyen. However, I note that Detainee X was not directly questioned on this particular issue.

  2. Neither of the two GSL incident reports made any reference to any threatening behaviour by Mr Nguyen. However, when interviewed by Knowledge Consulting, GSL officers involved in the incident stated that prior to the use of force Mr Nguyen had armed himself with a bundle of plastic knives and forks in one hand and a glass jar in the other hand and was making threatening gestures.
  3. I find that, prior to the use of force, Mr Nguyen was engaging in mild threatening behaviour with a bundle of plastic knives and forks and a glass jar. However, under the circumstances, I consider that any threat actually posed by Mr Nguyen was low. Had the risk been of any real significance, I would have expected that:
    • videorecording of the incident would have been arranged;

    • this risk would have been recorded in either of the two incident reports that were prepared;

    • the other GSL officers involved in the incident would have felt it necessary to also prepare incident reports; and

    • Detainee X would have referred to this in his interview with Knowledge

      Consulting when describing the circumstances surrounding the use of force, even if not directly asked.
Attempt to calm Mr Nguyen down prior to the use of force
  1. As noted above, Mr Nguyen alleged in his complaint that the GSL officers burst into his room without warning.

  2. However, I accept the Maribyrnong Manager’s allegation that, prior to authorising the use of force, he enlisted the assistance of Detainee X and attempted (without success) to convince Mr Nguyen to co-operate with the GSL officers. This allegation is supported by Detainee X.

  3. I consider that it would have been best practice for an interpreter to have been utilised in attempting to diffuse the situation. I note in particular the comment in the Investigation Report that Detainee X’s level of English was extremely poor, requiring that Knowledge Consulting engage a translator to conduct its interview with him. I consider that the use of a qualified interpreter may have avoided the need to use force.

  4. Nevertheless, I am satisfied that, despite his limited English, Detainee X

    understood and adequately translated the general thrust of the Maribyrnong Manager’s direction to Mr Nguyen to move to the van. I also accept that Detainee X tried his best to calm Mr Nguyen down prior to the use of force.
  5. I also accept that Mr Nguyen understood, but refused to comply with, GSL’s direction to move from his room to the van.
Summary of findings on the circumstances surrounding the use of force
  1. In relation to the events that preceded the use of force by GSL officers on Mr Nguyen, I find as follows:
    • Mr Nguyen was engaging in threatening behaviour prior to the use of force, although the threat actually posed was low.

    • Mr Nguyen was aware that he was being directed to move from his room to the van and refused to comply with that direction.

    • The Maribyrnong Manager, with the assistance of Detainee X, attempted to encourage Mr Nguyen to move peacefully to the van without the need for force. This was not successful. Whilst it would have been best practice to have used a

      qualified interpreter to attempt to diffuse the situation prior to the use of force, the failure to do so probably would not have altered the outcome.
  2. On the basis of the above, I accept that some level of force was warranted in the circumstances to remove Mr Nguyen from his room to the van when he refused to comply with GSL’s direction to do so.

  3. The following section considers the reasonableness of the level of force that was ultimately used by GSL officers in light of the circumstances described above.

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Level of force used

  1. There are differing accounts of the level of force used against Mr Nguyen. I have taken note of the more mild accounts provided by the GSL officers involved, compared with the more severe description in Mr Nguyen’s complaint.

  2. However, I have preferred the account given by Detainee X, for the following reasons:

    • Detainee X was an independent witness in the room who was not directly involved in the incident. He was therefore able to observe the events with relative clarity and objectivity.
    • The Investigation Report described Detainee X as a ‘credible witness’, a view stated in the report to have been shared by GSL’s own Director of Operations, Mr McGowan.
    • Detainee X’s account was relatively balanced. For example, Detainee X:

      • expressly denied that the officers used their knees or boots on Mr Nguyen; and

      • agreed that the Maribyrnong Manager had sought his assistance to calm Mr Nguyen down prior to the use of force.

    • The description given by Detainee X is consistent with the description of the incident contained in the Group Complaint Letter.

  3. Detainee X’s description of the level of force used by GSL officers, which I accept, can be summarised as follows:
    • When the officers entered the room to restrain Mr Nguyen, Mr Nguyen jumped back and fell on his back across a cassette radio on a nearby table and appeared to hurt himself.
    • GSL officers pinned Mr Nguyen to the wall using a mattress. Mr Nguyen slid down the wall behind the mattress and finished on his back on the floor. Officers handcuffed Mr Nguyen in front of his body while he was on the floor.
    • GSL officers did not place their knees or boots upon Mr Nguyen.

    • GSL officers lifted Mr Nguyen to his feet. One officer, using his index finger and

      thumb, grabbed Mr Nguyen behind the neck causing him to scream out. The GSL officers then carried Mr Nguyen out of the room.
  4. There is some uncertainty as to the number of officers who were involved in the use of force against Mr Nguyen. However, I accept the statement by the Maribyrnong Manager that:
    • four officers were involved in the use of force; and

    • himself and another GSL officer were present during the incident, but were not directly involved in the use of force.

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Relevant law

Articles 7 and 10(1) of the ICCPR
  1. The complaint by Mr Nguyen (as well as Mr Okoye, discussed below) in relation to use of force raise for consideration articles 7 and 10(1) of the ICCPR, as set out above in Part D.
Standard Minimum Rules
  1. Standard Minimum Rule 54(1) describes the circumstances in which force may be used against detainees, as follows:
    Standard Minimum Rule 54(1)

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

DIMIA’s policies
  1. DIMIA’s policy on the use of force is broadly consistent with the position under international law. In summary, it provides:

    In dealing with a detainee, detention services officers should not use force unnecessarily and, when the application of force to a detainee is necessary, no more than is necessary shall be used.51

  2. This policy applies to the use of handcuffs and other restraints, although the policy does not set out any explicit guidelines on their use. However, the policy notes that officers are instructed in the use of a number of control locks and holds and states that these locks and holds are:

    ...to be preferred to the use of other kinds of force since, generally speaking, they enable detention services officers to overcome a detainee’s resistance with the minimum of force.52

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Conclusions on the use of force against Mr Nguyen

Level of force required
  1. I consider that Mr Nguyen’s age (53) indicated against the need for excessive force and should have prompted GSL officers to use greater care to avoid injury.

  2. As noted above, whilst Mr Nguyen was engaging in threatening behaviour prior to the use of force, the actual threat posed by Mr Nguyen was low.

Manhandling
  1. From the description provided by Detainee X of the force used against Mr Nguyen, I consider that this force was at the upper extreme of what appeared to be necessary in the circumstances.

  2. Nevertheless, I accept that it was not an excessive use of force for the GSL officers to physically restrain Mr Nguyen, including with the use of a mattress, due to his refusal to comply with GSL’s direction to leave the room and his agitated state. I also accept that it was not excessive for the GSL officers to have ‘manhandled’ Mr Nguyen out of his room, including carrying Mr Nguyen.
  3. I find that Mr Nguyen was injured in the course of being physically restrained. However, I am satisfied that his injuries were primarily a consequence of Mr Nguyen attempting to elude the GSL officers, rather than excessive force being used by the officers involved.
Handcuffs
  1. As noted earlier, DIMIA’s policy on the use of force requires that officers are to use holds to restrain detainees in preference to other forms of force, such as handcuffs. Mr Nguyen had already been overpowered and physically restrained by four GSL officers prior to the use of handcuffs. Indeed, even after handcuffs were applied to My Nguyen, he was physically carried from his room to the van by the four officers.

  2. In these circumstances, and noting again Mr Nguyen’s age, I find that the use of handcuffs was disproportionate and, consequently, constituted an excessive use of force. However, I note that the handcuffs were removed from Mr Nguyen shortly thereafter, when he was put into the van.
Pressure behind Mr Nguyen’s ear
  1. Notwithstanding strong denials by GSL, I accept that a GSL officer pressed a finger or thumb into a tender ‘pressure point’ behind Mr Nguyen’s ear. In reaching this finding, I note that the Investigation Report found that:

    Detainee X was most definite that an officer did this and he defended officers against the allegations of kicking.

  2. I find that this was an excessive use of force in the circumstances. Based on the accounts of both Mr Nguyen and Detainee X, this use of force occurred after Mr Nguyen had been fully restrained when there was no longer any need for the use of force. In any event, for the reasons outlined earlier, I do not consider that the circumstances warranted such a severe level of force even before Mr Nguyen had been restrained.
  3. I accept that this excessive use of force caused Mr Nguyen to suffer severe, but short-lived, pain.

Conclusions on use of force
  1. I conclude that the use of force against Mr Nguyen breached article 10(1) of the ICCPR in relation to the officer pressing his finger or thumb into a tender ‘pressure point’ behind Mr Nguyen’s ear, causing him to scream out in pain. This finding is compounded by my additional finding that the use of handcuffs was not proportionate in the circumstances.

  2. I do not consider that the use of force on Mr Nguyen was of sufficient severity to also constitute a breach of article 7.

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MR OKOYE

Complaint

  1. 165. Mr Okoye’s complaint did not make any specific allegations about excessive force prior to the journey to Baxter IDF. However, he stated in his complaint that the GSL officers ‘grabbed, handcuffed and force (sic) me into the isolation room.’

Relevant factual findings

  1. I find that Mr Okoye was un-cooperative in being moved to the van prior to his transfer to Baxter IDF. This finding is based on the accounts given by the GSL officers involved and there is nothing in Mr Okoye’s complaint that asserts otherwise. Indeed, it is consistent with Mr Okoye’s complaint that the use of force was a consequence of Mr Okoye disputing his transfer.

  2. I also find that force was used in removing Mr Okoye to the van, although there is some uncertainty as to the circumstances surrounding that use of force. I also find that Mr Okoye was handcuffed as part of his removal to the van, although the handcuffs were removed prior to the commencement of the journey to Baxter IDF.

  3. It is unclear from the findings of the Investigation Report whether Mr Okoye was placed in an interview room pending the van’s departure or taken directly to the van. However, even if Mr Okoye’s allegation of being placed in an isolation room is accepted, this would have been limited to a couple of hours at most.

  4. It is my understanding that Mr Okoye did not complain about the use of force in his complaint to the Ombudsman. As noted above, his reference to the use of force in his complaint to HREOC was more in passing than a specific allegation. On this basis, I am satisfied that he did not suffer any significant injury as a consequence of the use of force.

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Conclusions

  1. I do not consider that the use of force against Mr Okoye amounted to a breach of either article 7 or 10(1) of the ICCPR. Taking Mr Okoye’s complaint at its highest, I am not satisfied that the alleged conduct was disproportionate in the circumstances or reached the requisite level of severity to constitute a breach of articles 7 or 10(1).

  2. I would add that, whilst Mr Okoye was not medically examined following the use of force, I am satisfied that he had not suffered any injuries which would have required medical attention.

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PART G: CONDITIONS OF THE JOURNEY FROM MARIBYRNONG IDC TO BAXTER IDF

  1. Mr Nguyen and Mr Okoye both complained to HREOC about the conditions of the journey from Maribyrnong IDC to Baxter IDF. However, it is apparent from the findings of the Investigation Report that this complaint is actually focused on the first leg of the journey, between Maribyrnong IDC and Mildura.
  2. This Part sets out my findings in relation to:

    • the van used to transport the detainees to Mildura; and

    • the conduct of the journey to Mildura.

  3. For the sake of completeness, I have also made brief findings in relation to the conduct of the second leg of the journey, from Mildura to Baxter IDF.

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THE VAN

  1. The following description of the van is based on the description provided in the Investigation Report following an inspection carried out by Mr Hamburger and Mr McGowan. This description does not appear to be disputed by the respondents.
  2. The van was a custom built, 10 seat Mercedes Sprinter van. The van had been borrowed from Victoria Police specifically for the purpose of this escort. It had been borrowed on one or two occasions previously, but always with drivers being supplied by Victoria Police. None of the GSL officers involved in escorting the detainees had seen or used the van previously or been trained on its use.

  3. For the reasons set out below, I agree with the finding in the Investigation Report that the van was ‘totally unsuitable for the task’ of escorting the detainees from Maribyrnong IDC to Mildura.
  4. The van was accompanied between Maribyrnong IDC and Mildura by a support vehicle, which was a hired sedan carrying three GSL officers.

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Configuration of the van

  1. The van comprised a drivers cabin for two people, separated from the rear of the van. The rear of the van was configured into four secure, stainless steel compartments. Mr Nguyen and Mr A were placed together in the largest compartment, with the other three detainees placed in the remaining separate compartments.

  2. The detainees were kept behind two locked, steel doors - the external door of the van and the doors to their respective compartments.
  3. I accept the findings in the Investigation Report that the configuration of the van did not allow for the detainees to:
    • stand upright;

    • move around to any extent; or

    • sleep or even ‘cat nap’.

  4. I also accept the observation in the Investigation Report that the compartments were ‘uncomfortable, claustrophobic, capable of causing panic and unsafe’.

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Lighting and internal vision within the van

  1. Whilst there was a glass window in the door to each compartment, there was only a darkly tinted, opaque glass window to the outside of the van. This window only allowed a small amount of light into the van, resulting in generally dark