Australia violating the right to liberty: UN
The highest international authority on civil and political rights has found Australia is violating the rights of a Bangladeshi asylum seeker detained for nearly seven-and-a-half years.
Danyal Shafiq, 34, was raised in an orphanage in Bangladesh. Fearing torture, harsh imprisonment or death at the hands of either Bangladeshi police or the Sharbahara Party, he fled to Australia by boat. In spite of Amnesty International-documented torture and extrajudicial executions by Bangladeshi police and the threat posed by Sharbahara, Australia has rejected Shafiq’s claim to asylum.
Bangladesh claims no record of Shafiq’s birth or citizenship, rendering him effectively stateless.
Shafiq has been imprisoned in immigration detention by Australia since September 1999. Mental illness arising during his detention necessitated his transfer in July 2005 to a psychiatric institution in Adelaide. Mental health professionals have concluded that prolonged immigration detention is the cause of his illness.
Article 9 of the International Covenant on Civil and Political Rights prohibits arbitrary detention. Mandatory detention of asylum seekers arriving in Australia by boat is arbitrary.
Australia rejects this assertion, however, implying that Shafiq is to blame for his own detention because he ‘chooses’ to persist with his refugee claim: he is "free to leave Australia at any time, thus obtaining his release." This is disingenuous since, as a stateless person without a passport, where could he go?
We know from the case of stateless Palestinian Ahmed Ali Al-Kateb that stateless people may be imprisoned indefinitely by Australia, and, in the absence of a bill of rights, the High Court has condoned such an appalling outcome.
The UN Human Rights Committee has examined the Shafiq case and found his detention by Australia to be arbitrary and without access to court review. The fact that he has become mentally ill, says the Committee, "should have been sufficient ground for a prompt and substantive review of detention."
The lawfulness of his detention under Australia’s Migration Act does not excuse the violation of Shafiq’s human rights under Article 9(1) & (4) of the International Covenant on Civil and Political Rights.
On 13 November 2006 the Human Rights Committee ordered Australia to release Danyal Shafiq and compensate him for these abuses. Australia had 90 days to explain to the Committee how it has complied with the quasi-judicial ruling. That time limit has now passed.
You may wish to join me in inquiring of Kevin Andrews, Australia’s Minister for Immigration and Citizenship: Has Shafiq been released and what has Australia done to compensate him?
[…] That secret detention may be lawful does not excuse the violation of international human rights law, as the UN Human Rights Committee has pointed out on other occasions. The treaty on disappearances may not yet be law — not until at least 20 nations have taken the next step of ratifying the text — but enforced disappearances committed ’systematically’ are a crime against humanity under the Rome Statute of the International Criminal Court. […]
I have today received a reply to my inquiry, written by one of Kevin Andrews’ staff. Choosing to overlook the fact that the 90-day deadline for responses to the UN’s adverse finding has long since passed, Andrews says the Australian Government is still “considering its response.” He adds: “Once the response is finalised, it will be made public.”