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AUSTRALIA: ARBITRARY DETENTION OF HUMAN RIGHTS ACTIVIST MOHAMMAD DADASHY

The International League Against Arbitrary Detention urges the Government of Australia to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 15/2023 concerning Mohammad Dadashy starting for the Government of Australia to immediately and unconditionally release Mohammad Dadashy and to accord him an enforceable right to compensation and other reparations in accordance with international law.


Read the full WGAD Opinion concerning Mohammad Dadashy (Australia): Opinion No. 15/2023

SUBJECTED TO DE FACTO INDEFINITE DETENTION DUE TO HIS IMMIGRATION STATUS

IRANIAN HUMAN RIGHTS ACTIVIST DETAINED BASED ON THE MIGATION ACT 1958


Mohammad Dadashy is a national of the Islamic Republic of Iran, born on 16 March 1990. Between the years 2009 and 2012 he was a political and human rights activist in Iran, leading to his detention and torture by the Iranian authorities. In 2012 he fled to Australia to avoid detention. After leaving Iran he was tried in absentia and sentenced to 10 years of imprisonment. He arrived in Australia as an irregular maritime arrival on Ashmore Reef and was immediately arrested as an offshore entry person under section 189 (3) of the Migration Act 1958. He has been detained for more than 10 years and remains in detention.


The Working Group has concluded that there was no reason for detaining Mr. Dadashy other than his migration status and that he was detained due to the exercise of his legitimate rights under article 14 of the Universal Declaration of Human Rights. The Working Group has determined that Mr. Dadashy is entitled to the right to liberty and security of person as guaranteed in article 9 of the Covenant and that, when guaranteeing these rights to him, Australia must ensure that it is done without distinction of any kind, as required by article 2 of the Covenant. Hence, the Working Group found that the detention of Mohammad Dadashy is arbitrary under category I and II.


AUSTRALIA MUST REVIEW ITS MIGRATION ACT IN LIGHT OF ITS INTERNATIONAL OBLIGATIONS


The Working Group referred to its line of jurisprudence in relation to Australia, recalling that since 2017, it has considered 20 cases, all of which concern the same issue, namely mandatory immigration detention in Australia in accordance with the Migration Act 1958.


The Working Group furthermore reiterated its alarm that, in all these cases, the Government has argued that the detention is lawful purely because it follows the stipulations of the Migration Act. The Working Group once again clarified that such arguments can never be accepted as legitimate in international human rights law. The fact that a State is following its own domestic legislation does not in itself prove that the legislation conforms with the obligations that the State has undertaken under international human rights law. No State can legitimately avoid its obligations under international human rights law by citing its domestic laws and regulations.


The Working Group emphasized that it is the duty of the Government to bring its national legislation, including the Migration Act, into alignment with its obligations under international human rights law. Since 2017, the Government of Australia has been consistently and repeatedly reminded of these obligations by numerous international human rights bodies, including the Human Rights Committee, the Special Rapporteur on the human rights of migrants and the Working Group.


Noting the failure of the Government to take any action, the Working Group concluded that the detention of Mr. Dadashy under the said legislation is arbitrary since domestic law that violates international human rights law, and which has been brought to the attention of the Government on so many occasions, cannot be accepted as a valid legal basis for detention. Therefore, the Working Group called upon the Government to urgently review the Migration Act in the light of its obligations under international human rights law.


SUBJECTED TO DE FACTO INDEFINITE DETENTION ON A DISCRIMINATORY BASIS


The Working Group noted that Mr. Dadashy is subjected to de facto indefinite detention due to his migratory status without the possibility of challenging the legality of such detention before a judicial body, which is the right encapsulated in article 9 (4) of the Covenant. The Working Group finds that the Government has failed to explain how the reviews of Mr. Dadashy's case up until this point satisfy the requirements laid out under article 9 (4) of the Covenant, as in 10 years no judicial body has assessed the legality of his detention, and the reviews undertaken did not concern the necessity to detain Mr. Dadashy or the proportionality of such detention and thus found it arbitrary under category IV.


Further, the Working Group has concluded that, as a non-citizen, Mr. Dadashy appears to be in a different situation from Australian citizens in relation to his ability to effectively challenge the legality of his detention before the domestic courts and tribunals, owing to the effective result of the decision of the High Court in Al-Kateb v. Godwin. According to that decision, while Australian citizens can challenge administrative detention, non-citizens cannot challenge detention. The Working Group underlines that this situation is discriminatory and contrary to article 26 of the Covenant and thus concluded it arbitrary under category V.


CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION


In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Mr. Dadashy was arbitrary and fell under categories I, II, IV, and V because his deprivation of liberty of was in contravention of articles 2, 3, 7–9 and 14 of the Universal Declaration of Human Rights and articles 2, 9 and 26 of the International Covenant on Civil and Political Rights.


The United Nations Working Group on Arbitrary Detention recommended that the Government of Australia take the steps necessary to remedy the situation of Mr. Dadashy without delay and bring it into conformity with the relevant international norms, starting with his immediate release and accord him an enforceable right to compensation and other reparations.

 

Moreover, the Working Group called upon the Government to urgently review the Migration Act in the light of its obligations under international human rights law.


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