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. 14/2023 concerning Gus Kuster starting for the Government of Australia to immediately and unconditionally release Mr. Kuster and to accord him an enforceable right to compensation and other reparations in accordance with international law.
Read the full WGAD Opinion concerning Gus Kuster (Australia) : Opinion No. 14/2023.
SUBJECTED TO DE FACTO INDEFINITE DETENTION FOR MORE THAN 4 YEARS BASED SOLELY ON HIS MIGRATION STATUS
Gus Kuster is a stateless person of Torres Strait Islander descent, born in Lorengau, Papua New Guinea, on 31 October 1978. The Government of Papua New Guinea, however, has no record of his birth there and does not recognize Mr. Kuster as a citizen. This is allegedly in keeping with the deep oral traditions of family lore and the fact that no written records were kept in remote communities. Mr. Kuster and his family identify themselves as Torres Strait Islanders.
The Working Group observed that Mr. Kuster arrived in Australia on 9 September 1983, at the age of 4 with his family, and was granted a permanent entry permit upon arrival, which was subsequently replaced with a permanent visa, and since that time, was free to live in the community. He served terms of imprisonment in the criminal justice context in 2017 and was then moved to immigration detention due to the mandatory cancellation of his visa as a result of his imprisonment.
Following an unsuccessful attempt to enter Papua New Guinea, and at the time of the source’s communication, he was remaining in immigration detention for the purpose of removal to another country. The Government, however, admitted that his removal was not possible while the status of his Papua New Guinean citizenship was still being contested. He has also been detained for the purpose of allowing the Minister for Home Affairs to determine, once Mr. Kuster’s Papua New Guinean citizenship status has been clarified, whether the visa cancellation should be revoked.
The Working Group noted that the Government of Australia has given no indication as to when Mr. Kuster’s detention could end. Noting that at the time of the source’s communication he had already been detained for about four years, the Working Group was bound to conclude that his detention was seemingly indefinite. The Working Group recalled that any form of administrative detention or custody 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, such as documenting entry and recording claims or initial verification of identity if in doubt.
Hence, the Working Group concluded that Mr. Kuster was detained due to the exercise of his legitimate rights under article 14 of the UDHR and has been subjected to de facto indefinite detention due to his immigration status, in clear breach of articles 2 and 9 of the ICCPR, rendering his detention arbitrary under category I and II.
AUSTRALIA MUST URGENTLY REVIEW THE 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 was lawful purely because it followed 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 emphasised 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.
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.
Moreover, noting the failure of the Government to take any action, the Working Group concluded that the detention of Mr. Kuster under the said legislation was arbitrary under category I as it was in violation of article 9 (1) of the Covenant. 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.
DISCRIMINATELY DETAINED WITHOUT THE POSSIBILITY OF CHALLENGING THE LEGALITY OF SUCH DETENTION BEFORE A JUDICIAL BODY
The Working Group noted that, during his more than four years of detention, no judicial body has been involved in the assessment of the legality of Mr. Kuster’s detention and that international human rights law requires that such consideration by a judicial body necessarily involves an assessment of the legitimacy, necessity and proportionality of detention.
The Working Group reiterated that the indefinite detention of individuals in the course of migration proceedings cannot be justified and is arbitrary. There cannot be a situation whereby individuals are caught up in an endless cycle of periodic reviews of their detention without any prospect of actual release. This is a situation akin to indefinite detention, which cannot be remedied, even by the most meaningful review of detention on an ongoing basis.
In the case of Mr. Kuster, the Working Group established that no alternatives to detention have been considered. Consequently, the Working Group found that Mr. Kuster has been 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. Last but least, the Working Group underlined that this situation is discriminatory and contrary to article 26 of the Covenant, rendering the detention of Mr. Kuster arbitrary under category IV and 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 Gus Kuster was arbitrary and fell under categories I, II, IV and V because the deprivation of liberty of Mr. Kuster 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 steps necessary to remedy the situation of Mr. Kuster without delay and bring it into conformity with the relevant international norm. The Working Group considered that, taking into account all the circumstances of the case, the appropriate remedy would be to release both individuals immediately and accord them an enforceable right to compensation and other reparations in accordance with international law.
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.
Comments