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. 44/2023 concerning Khaled el-Ali starting for the Government of Australia to immediately and unconditionally release him and to accord him an enforceable right to compensation and other reparations in accordance with international law.
Read the full WGAD Opinion concerning Khaled el-Ali (Australia): Opinion No. 44/2023.
STATELESS INDIVIDUAL DETAINED FOR ALMOST SEVEN YEARS UNDER THE MIGRATION ACT
Khaled el-Ali is a stateless individual born in Lebanon to Palestinian parents, who migrated to Australia in 2005. Over the years, Mr. El-Ali was charged and recognised guilty of different criminal offences.
Mr. El-Ali's visa expired on 29 October 2013, turning him into an unlawful non-citizen in Australia from that day onwards. On 30 October 2013, he was released from criminal custody following a prison sentence that lasted around 4 years for various criminal offences. On the same day, he was detained under section 189(1) of the Migration Act and transferred to the Melbourne Immigration Detention Centre. On 10 September 2014, Mr. El-Ali was transferred to the Christmas Island Immigration Detention Centre.
Following this, Mr. El-Ali went back and forth in different detention centres, either due to the different criminal offences he was charged with or to his immigration status. Each time he was released from criminal custody, he was immediately detained again due to its unlawful migration status. At the time of the source's communication, and since June 2019, Mr. El-Ali was being held in Villawood Immigration Detention Centre, under section 189(1) of the Migration Act.
Throughout his confinement, Mr. El-Ali's mental and physical health deteriorated, exacerbated by the lack of a specific visa category for stateless persons in Australia and his criminal record, hindering his ability to secure legal status or protection. Despite legal counsel's efforts and requests for removal to a safe third country, Mr. El-Ali remained detained, highlighting the challenges faced by stateless individuals in navigating Australia's immigration system and securing their freedom.
The Government of Australia was given the opportunity to answer these allegations, which it did.
DETAINED ON THE BASIS OF A MIGRATION ACT THAT DOES NOT MEET THE STANDARDS OF INTERNATIONAL HUMAN-RIGHTS LAW
Recalling numerous previous 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 to ensure compliance with international standards.
Given the Government's inaction despite numerous alerts from United Nations bodies concerning this Act, and considering the use of this Act as the basis for Mr. El-Ali's detention, the Working Group concluded that his right not to be arbitrarily detained, enshrined in article 9 (1) of the Covenant, had been violated. As such, the Working Group considered Mr. El-Ali's detention arbitrary under category I as lacking a legal basis.
INDEFINITE DETENTION FOR FIVE YEARS WITHOUT JUSTIFICATION
Since the expiration of his visa in October 2013, Mr. El-Ali has been unable to make a valid visa request, due to section 501 of the Migration Act, and has been ineligible for removal to any third country due to visa requirements. The Government did not indicate as to when this detention could end, nor did it provide another reason than Mr. El-Ali's migration status to justify his detention. As such, the Working Group considered that, at the time of the source's communication, Mr. El-Ali had been held in indefinite detention for approximately five years. Thus, the Working Group recalled that in the context of migration, administrative detention should be an exceptional measure of last resort. Besides, the Working Group considered that his detention resulted from the legitimate exercise of his right to seek asylum under article 14 of the Universal Declaration of Human Rights, thus in violation of such right.
In addition, the Working Group recalled Mr. El-Ali's right to right to liberty and security of person protected under article 9 of the Covenant, and emphasised that this right should have been guaranteed to him without distinction of any kind, as per article 2 of the Covenant. Therefore, in light of the above circumstances, the Working Group considered that Mr. El-Ali's rights under article 2 and 9 (1) of Covenant had been violated as well.
All in all, the Working Group thus categorised Mr. El-Ali's detention as arbitrary under category II.
Moreover, the source alleged that Mr. El-Ali could not challenge the legality of his detention before a judicial body, which the Government denied by explaining that he could seek a legal review of his detention by different authorities. Recalling its findings in previous cases, the Working Group noted that this detention was indeed punitive and indefinite, and without the possibility to challenge its lawfulness. As such, the Working Group concluded that Mr. El-Ali’s right to challenge this said legality, guaranteed by article 9 (4) of the ICCPR, had been violated.
Hence, the Working Group considered that Mr. El-Ali's detention was also arbitrary under category IV.
DENIED THE RIGHT TO CONTEST ADMINISTRATIVE DETENTION DUE TO NON-CITIZEN STATUS
The Working Group examined the implications of Mr. El-Ali's status as a non-citizen on his ability to challenge his detention. Specifically focusing on the Australian High Court's decision in Al-Kateb v. Godwin, the Working Group noted that this decision seemingly denied non-citizens the right to contest administrative detention, a claim refuted by the Government. However, the Working Group found the Government's explanation insufficient as it failed to demonstrate how non-citizens could effectively challenge an ongoing detention. Therefore, the Working Group reaffirmed that this situation constituted a discrimination against Mr. El-Ali and was thus in violation of article 26 of the ICCPR, which turned his detention 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. El-Ali was arbitrary and fell under categories I, II, IV, and V because his deprivation of liberty was in contravention of article 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 necessary steps to remedy the situation of Mr. El-Ali 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 him immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.
Furthermore, 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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