On 29 August 2024, the Coroner handed down her findings in the inquest into the death of AS.
Content Warning: This case note discusses suicide, self-harm and gender identity discrimination. Readers may find it distressing.
In an important judgment delivered on 22 December 2022, the Full Court of the Federal Court of Australia (Allsop CJ, Rangiah and S Derrington JJ) found that an aggregate sentence of imprisonment did not constitute a single ‘term of imprisonment for 12 months or more,’ and therefore did not attract the operation of the mandatory visa cancellation powers at s 501(3A) of the Migration Act 1958 (Cth).
Read MoreMagaming v The Queen [2013] HCA 40 (11 October 2013)
The High Court has dismissed an appeal regarding a mandatory minimum sentence imposed under the Migration Act 1958 (Cth), highlighting a gap in human rights protection under Australian law.
Read MoreMail and Guardian Media Limited and Others v Chipu N.O. and Others Case CCT 136/12 - [2013] ZACC 32 (27 September 2013)
The Constitutional Court of South Africa has upheld a challenge to the constitutionality of section 21(5) of the Refugees Act, which provides for the absolute confidentiality of asylum applications in South Africa. The Court declared that the absolute confidentiality of asylum applications was an unjustifiable limitation on the constitutional right to freedom of expression and gave Parliament two years to remedy the defect in the legislation. In the interim, the Refugee Appeal Board (RAB) has been given a discretion to allow third parties access to hearings in particular circumstances.
Read MoreF.K.A.G. et al. v Australia, UN Doc CCPR/C/108/D/2094/2011 (23 August 2013)
The UN Human Rights Committee found that Australia violated articles 7 and 9(1), (2) and (4) of the International Covenant on Civil and Political Rights by indefinitely detaining refugees subject to adverse security assessments without adequate reasons, review rights or individualised consideration of less intrusive options.
Read MoreEzokola v Canada (Citizenship and Immigration) 2013 SCC 40 (19 July 2013)
The Supreme Court of Canada unanimously held that to lawfully exclude a person from the definition of refugee because of their membership of a group suspected of war crimes, crimes against humanity or other international crimes, there must be serious reasons for considering that the person has made a “voluntary, knowing, and significant contribution” to the group’s crime or criminal purpose.
Read MoreCase of Hode and Abdi v United Kingdom [2012] EHCR, Application no. 22341/09 (6 November 2012)
The European Court of Human Rights has held that the United Kingdom Government’s refusal to allow the family reunion of a refugee and his wife under relevant immigration rules was unlawfully discriminatory against the refugee on the basis of his immigration status.
Read MoreChun Rong v Australia [2012], CAT/C/49/D/416/2010
The UN Committee against Torture found that Australia was in violation of its non-refoulement obligations under the Convention against Torture because it failed to satisfy procedural obligations under article 3.
Read MorePlaintiff M47/2012 v Director-General of Security & Ors [2012] HCA 46 (5 October 2012)
In this case the full bench of the High Court of Australia considered the lawfulness of the indefinite detention of the plaintiff, a refugee who has been held in detention in Australia without a visa for three years. He had been assessed as a refugee but his application for a visa had been denied on the basis of an adverse security assessment conducted by the Australian Security and Intelligence Organisation.
Read MoreMM and AO (A Child), R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 668 (18 May 2012)
This case adds to pre-existing UK and European authority about the circumstances in which an investigation of an allegation of torture or ill-treatment will be required. In this particular case, an intervention to stop a protest at an immigration detention centre caused such physical and psychological harm that a claim of ill-treatment was raised. The question was thus to what extent, especially in cases involving children, an independent investigation was required beyond procedures already in place.
Read MoreHA (Nigeria), R (on the application of) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) (17 April 2012)
The High Court of England and Wales considered the detention of a Nigerian asylum seeker who was suffering serious mental health difficulties whilst in detention
Read MoreHirsi Jamaa and Others v Italy [2012] ECHR Application no. 27765/09 (23 February 2012)
In a landmark decision the Grand Chamber of the European Court of Human Rights held, unanimously, that Italy violated the European Convention of Human Rights by forcibly returning a group of asylum seekers by sea to Libya.
Read MoreSonko v Spain, UN Doc CAT/C/47/D/368/2008 (20 February 2012)
Summary
The UN Committee against Torture has found that Spain violated its obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in its treatment of Senegalese asylum seeker Mr Sonko, who drowned after being forced out of a Spanish Civil Guard vessel. This decision exemplifies that placing a person in a situation that causes his or her death will constitute cruel, inhuman or degrading treatment in contravention of article 16 of the Convention.
Read MoreThe Queen (on the application of S) v The Secretary of State for the Home Department [2011] EWCH 2120 (Admin) (5 August 2011)
The Claimant, S, sought judicial review of the decision to detain him pending deportation. Owing to circumstances relating to his mental illness, the High Court of England and Wales held that S's detention amounted to false imprisonment and a violation of Articles 3 and 5 of the European Convention of Human Rights, which prohibit inhuman or degrading treatment and protect an individual's right to liberty and security of the person, respectively.
Read MoreSufi and Elmi v The United Kingdom [2011] ECHR 1045 (28 June 2011)
The European Court of Human Rights (the Court) has found that the return of two Somali nationals to Mogadishu, Somalia would amount to inhuman and degrading treatment in breach of article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) because of the situation of general violence there.
Read More
ZH (Tanzania) FC (Appellant) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011)
The Supreme Court of the United Kingdom has held that the 'best interests of the child' should be the first consideration where children are affected by the decision to remove or deport one or both of their parents. While the best interests of the child can be cumulatively outweighed by other factors in determining proportionality, no consideration is inherently more significant than the best interests of the child.
Read MoreSuppiah & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2 (Admin) (11 January 2011)
The High Court of England and Wales decided that two families who had sought asylum in the United Kingdom were detained unlawfully by the Secretary of State for the Home Department (Defendant) because the Defendant failed to have regard to its duty to safeguard and promote the welfare of children.
Read MoreDirector of Housing v TK [2010] VCAT Application 2010/11921 (Unreported, 22 July 2010)
VCAT Deputy President Lambrick has held that the Tribunal has jurisdiction to determine whether an application made pursuant to ss 250 and 330(1) of the Residential Tenancies Act has been made in breach of the Charter. This affirms the decision of Bell J in Director of Housing v Sudi [2010] VCAT 328.
Read MoreDirector of Housing v Sudi [2010] VCAT 328 (31 March 2010)
Justice Bell, sitting as President of the Victorian Civil and Administrative Tribunal, has held that the Director of Housing acted unlawfully under s 38(1) of the Charter in seeking, without adequate justification, to evict a refugee family from social housing in breach of their right to family and the home under s 13(a). His Honour further held that this unlawfulness invalidated the Director’s application for a possession order under s 344 of the Residential Tenancies Act.
Read MoreSaeedi, R (on the application of) v Secretary of State for the Home Department & Ors [2010] EWHC 705 (Admin) (31 March 2010)
The England and Wales High Court recently held that the proposed transfer of an asylum applicant to Greece was not incompatible with art 3 of the European Convention on Human Rights or similar rights guaranteed under European Union law.
Read MoreA, R (on the application of) v London Borough of Croydon [2009] UKSC 8 (26 November 2009)
The difficulty in determining age has become prominent as a consequence of the increased movement of children around the world, and specifically the increased migration of unaccompanied young people. It is an issue of particular significance, for a number of reasons. States often have – or at least, ought to have – different policies and procedures in place in relation to the treatment of asylum seekers who are children. These may relate, for example, to the provision of guardianship, the provision of legal aid, conditions of any ‘detention’, the substantive consideration of whether the asylum seeker satisfies the requisite test (ie the refugee definition), or access to particular social entitlements (housing, welfare, education etc).
Read MoreKwok v Australia, CCPR/C/97/D/1442/2005 (23 November 2009)
The United Nations Human Rights Committee has found Australia to be in breach of its obligations under art 9(1) of the International Covenant on Civil and Political Rights in relation to mandatory immigration detention. The Committee ruled that 'detention for a period in excess of four years without any chance of substantive judicial review is arbitrary within the meaning of Article 9(1)'. The Committee also found potential breaches of arts 6 and 7 of the ICCPR if Australia returns the author, Ms Kwok, to China where she will likely face the death penalty.
Read MoreEW, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 2957 (Admin) (18 November 2009)
In this case, the England and Wales High Court held that the extradition of an asylum seeker to a safe third country did not constitute refoulement even if that country was not able to provide temporary accommodation and financial support. The right to freedom from cruel, inhuman and degrading treatment is entrenched in the International Covenant on Civil and Political Rights, the Victorian Charter of Human Rights and, relevantly for this case, the European Convention on Human Rights. However, the Court in EW found that this right did not impose a positive obligation to ensure a ‘general right to accommodation or a minimum standard of living’ and, as such, would not be breached by the extradition. The Court stated that ‘the setting of such a minimum standard – no matter how low – is a matter for social legislation, not the courts’.
Read MoreX v Australia, UN Doc CAT/C/42/D/324/2007 (5 May 2009)
Mr X, a Palestinian born in Lebanon in 1960, was detained at the Villawood Detention Centre in Australia. He sought political asylum in Australia, however, his request was rejected and he risked forcible removal to Lebanon. He claimed, inter alia, that by deporting him, Australia would violate his rights under art 3 of the Convention against Torture (CAT).
Read MoreXFJ v Director of Public Transport (Occupational and Business Regulation) [2008] VCAT 2303 (31 October 2008)
In overturning a decision by the Director of Public Transport to refuse to grant XFJ, the applicant, accreditation to drive commercial taxi vehicles under the Transport Act 1983 (Act) , VCAT considered the application of the obligation under s 32(1) of the Charter to interpret laws consistently with human rights.
Read MoreAS (Pakistan) v Secretary of State for the Home Department [2008] EWCA Civ 1118 (15 October 2008)
The England and Wales Court of Appeal recently allowed an appeal against a decision of the Asylum and Immigration Tribunal regarding the deportation of AS, a Pakistani national. The Court held that the Tribunal erred in two respects: first, in finding that deportation would not interfere with AS’ right to respect for his private and family life (under art 8 of the European Convention on Human Rights), and second, in its assessment of proportionality.
Read MoreRS (Zimbabwe) v Secretary of State for the Home Department [2008] EWCA Civ 839 (18 July 2008)
The Court of Appeal of England and Wales has allowed an appeal by RS, a Zimbabwean national, against a decision of the Immigration Appeal Tribunal to dismiss her appeal against a decision of the Secretary of State for the Home Department to refuse to allow RS to remain in the United Kingdom for medical treatment and health.
Read MoreJT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 (28 July 2008)
In a recent decision informed by the interpretive principle in s 3 of the Human Rights Act 1998 (UK), the England and Wales Court of Appeal has read an additional word into a provision of the Asylum & Immigration (Treatment of Claimants etc) Act 2004 (UK) to ensure human rights compatibility. Despite there being no ambiguity in the provision, the court was willing to read in the additional word so that the provision would not offend the separation of powers doctrine and, implicitly, the right to a fair hearing.
Read MoreBeoku-Betts (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2008] UKHL 39 (25 June 2008)
The House of Lords held that the right to family life should be interpreted broadly, and encompass consideration of the rights of other family members, when determining an appeal against the Secretary of State's refusal of leave to remain under s 65 of the Immigration and Asylum Act 1999 (UK).
Read MoreShams & Ors v Australia, HRC, UN Doc CCPR/C/90/D/1255, 1256, 1259, 1260, 1266, 1268, 1270, 1288/2004 (11 September 2007)
In a decision regarding mandatory immigration detention, the UN Human Rights Committee has elucidated its jurisprudence on the content and application of art 9 of the ICCPR, the right to liberty and security of person and to be free from arbitrary detention.
Read MoreImmigration and Refugee Protection Act 2001 (Can)
On 23 February 2007, the Supreme Court of Canada overturned provisions of the Immigration and Refugee Protection Act 2001 (Can) relating to the detention of permanent residents and foreign nationals on the basis that the provisions contravened the Canadian Charter of Rights and Freedoms. The Canadian Parliament was given one year to rewrite the IRPA in accordance with the Charter.
Read MoreOn 13 November 2006, the UN Human Rights Committee further elaborated on what constitutes arbitrary detention for the purposes of art 9(1) of the ICCPR, finding that there must be ‘appropriate justification’ for continued mandatory detention in light of the circumstances of the particular case.
Read MoreD and E v Australia, HRC, Communication No 1050/2002, UN Doc CCPR/C/87/D/1050/2002 (25 July 2006)
The UN Human Rights Committee (‘the Committee’) recently handed down its latest in a string of decisions concerning Australia’s policy of mandatory immigration detention. The authors of the complaint were two Iranian nationals who, together with their two children, arrived in Australiaby boat in November 2000. Pursuant to Australia’s policy, the four were held in immigration detention for a total of three years and two months. During their period of mandatory detention, the relevant provisions of the Migration Act 1958 (Cth) effectively precluded judicial review of the lawfulness of their detention, while their applications for asylum were rejected. The four were ultimately granted Global Special Humanitarian visas on 13 March 2006.
Read More