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. 71/2023 concerning Gema Chol and Zackaria Chol, asking the Government of Australia to immediately and unconditionally release Gema Chol and Zackaria Chol and to accord them an enforceable right to compensation and other reparations in accordance with international law.
Read the full WGAD Opinion concerning Gema Chol and Zackaria Chol (Australia): Opinion No. 71/2023.
ARBITRARILY ARRESTED AND DETAINED ON THE BASIS OF MIGRATION ACT 1958
Gema and Zackaria Chol are South Sudanese brothers born respectively in 1986 and 1990. They arrived in Australia in 2003 with their mother and other siblings, with a refugee and humanitarian visas. As a result of a conviction for aggravated assault intentionally causing harm, their respective visas were cancelled in October 2014 and 2015, while they were serving prison sentences.
In October and June 2015, following their release from prison, both were immediately detained administratively under section 189 of the Migration Act 1958, which stipulates that a non-citizen without a visa must be detained. In October 2016 and February 2017, they respectively applied for a protection visa, which was declined in both cases. At the time of the source's communication, Gema Chol was detained at the Melbourne Immigration Transit Accommodation in Broadmeadows, while Zackaria Chol was detained at the Yongah Hill Immigration Detention Centre in Burlong. It should be noted that Zackaria Chol's administrative detention has been divided into different periods, the last one being starting from July 2022 onwards.
Though given the opportunity to do so, the Government of Australia did not offer a response in the appropriate timeline. As a consequence, the Working Group considered the case with the information at its disposition, without the Government's answer.
First of all, recalling around 20 previous and similar cases of arbitrary detentions in Australia, the Working Group noted its consistent view concerning the Migration Act of 1958 in recent years. Notably, the Working Group recalled that this Migration Act does not respect the right to seek asylum and wrongfully imposes a de facto mandatory detention to all migrants, while deprivation of liberty in the immigration context should be a measure of last resort.
As such, the Working Group stated that domestic laws contradicting international human rights obligations cannot serve as a valid legal basis for detention, and thus the Working Group urged the Australian Government to urgently review and amend the Migration Act in the light of its obligations under international human rights law.
Given the Government's inaction despite numerous alerts from UN bodies concerning this Act so far, and considering the use of this Act as the basis for Gema and Zacharia Chol's detention, the Working Group concluded that their right not to be arbitrarily detained, enshrined in article 9(1) of the Covenant, had been violated.
Henceforth, the Working Group considered that both Gema and Zacharia Chol's detentions were arbitrary under category I, as lacking a legal basis.
DE FACTO INDEFINITE DETENTION OWING TO THEIR IMMIGRATION STATUS FOR SEVERAL YEARS
Both Gema and Zackaria Chol have been in held in administrative detention on the basis of the Migration Act of 1958. As noted by the Working Group, any form of administrative detention in the context of migration must be applied as an exceptional measure of last resort, for the shortest period and only if justified by a legitimate purpose.
In both cases, given the lack of any indication as to when their respective detention might end, it seems their detention is indefinite. Specifically, at the time of the source's communication, Gema Chol had been detained for over eight years, while Zackaria Chol had been detained, cumulatively, at least three years.
In this light, the Working Group considered that their detention resulted from the legitimate exercise of his right to seek asylum, protected by article 14 of the Universal Declaration of Human Rights, thus in violation of this right. Besides, the Working Group recalled Gema and Zackaria Chol's right to right to liberty and security of person under article 9 of the Covenant, and emphasised that this right should have been guaranteed to them without distinction of any kind, as per article 2 of the Covenant. Therefore, in light of the above circumstances, the Working Group considered that their rights under article 2 and 9(1) of Covenant had been violated as well.
As such, the Working Group found their detention to be arbitrary, falling under category II. This case has been referred the case to the Special Rapporteur on the human rights of migrants.
UNABLE TO CHALLENGE THE LEGALITY OF THE DETENTION
Moreover, as their detention is based on their migration status, and due to their de facto indefinite detention, the Working Group emphasized that their respective detentions have been of punitive nature. As such, neither of them was able to challenge the legality of their detention before a judicial body, which the Working Group found in violation of their right to do so, under article 9(4) of the Covenant.
Hence, the Working Group considered that their detentions were also arbitrary under category IV.
DISCRIMINATED ON THE BASIS OF THEIR MIGRATORY STATUS
Eventually, recalling the decision of the High Court in the Al-Kateb v. Godwin’s case, the Working Group noted that non-Australian citizens cannot effectively challenge their administrative detention, while Australian citizens can. On this matter, the Working Group notably recalled the consistent failure of the Australian Government to explain how non-citizens can effectively challenge their ongoing detention. It is notable that in a judgment of 8 November 2023, the High Court overruled its decision in the case of Al-Kateb v. Godwin, allowing non-citizens to challenge their administrative detention. Though the Working Group welcomed this long-awaited decision, it remarked that this decision did not affect the present case.
Therefore, the Working Group found that, as neither Gema nor Zackaria Chol could challenge the legality of their detention due to their migratory status, their right not to be discriminated and to be protected from discrimination, enshrined in article 26 of the Covenant, had been violated. In turn, this rendered their detentions 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 Gema Chol and Zacharia Chol was arbitrary and fell under categories I, II, IV and V, because the deprivation of liberty of Gema Chol and Zacharia Chol 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 Working Group recommended that the Government of Australia take the necessary steps to remedy the situation of Gema Chol and Zacharia Chol without delay and bring it into conformity with the relevant international norms. The Working group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release them immediately and accord them an enforceable right to compensation and other reparations, in accordance with international law.
The Working Group requested the Government to bring its laws, particularly the Migration Act 1958, into conformity with the recommendations made in the present opinion and with the commitments made by Australia under international human rights law.
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