Mirand Pjetri v. Australia

The author of the communication is Mirand Pjetri, a national of Albania born in 1989. The author claims a violation by the State Party of his rights under articles 6, 7, 9, 10 and 26 of the Covenant. The Optional Protocol entered into force for the State party on 25 December 1991. The author is represented by counsel.

The author states that he arrived in Australia on 10 September 2013 and sought asylum after having provided information to the police about operations of a pan-European organized crime group based in Albania. The author arrived in Australian territorial waters on a boat travelling from Indonesia. The boat was intercepted by the Australian Navy, and the author was taken to Darwin, Australia where he was detained. He was subsequently transferred to Christmas Island and detained in the North-West Point Immigration Detention Centre. At the time of the submission of the complaint, the author had been held in immigration detention for almost seven years, initially on Christmas Island (15 October 2013 to 1 February 2015), then in Wickham Point Alternative Place of Detention (APOD) in Darwin (1 February 2015 to 1 May 2016), and the Melbourne Immigration Transit Accommodation (1 May 2016 to the time of the submission of the complaint). The author was detained in low-security detention facilities. His detention record showed a person who had respectful relationships with other detainees, staff and authorities and he was in general, in good health.

On 6 May 2016, the author submitted a Safe Haven Enterprise Visa application. On 2 December 2016, the application was denied by the Immigration Assessment Authority. The decision was upheld on 10 November 2017 and 7 December 2018, by the Federal Circuit Court and the Federal Court, respectively. On 17 April 2019, the author’s application for special leave to appeal was denied by the High Court.

During the time of detention two bridging visa applications, that the author was aware of, were filed by the author’s immigration case managers for ministerial consideration under section 195A of the Migration Act 1958. These applications, submitted in 2017 and 2018, aimed to have him released from detention while his protection visa application was being reviewed. Both bridging visa applications were however rejected despite the author’s record of exemplary behaviour. The author states that these negative responses were due to an alleged Interpol red notice issued on him. In response the author asserted that he had no knowledge about such a notice but was informed that he would need to prove that the notice did not exist, which was not possible as he had neither the finances nor the know-how to make such inquiries.

In an assessment dated 19 April 2017, the author’s counsellor noted that the author suffered symptoms meeting the criteria for a major depressive disorder, and it was noted that he was suffering the adverse effects of a lack of meaningful activity and of confinement. In late 2018, the author’s closest friends were granted protection visas and left the Melbourne Immigration Transit Accommodation, leaving him isolated in detention. He became lonely, depressed, and disinterested in activities like eating, working out, and accepting visits from community members that he had previously enjoyed. The author’s mental and physical state seriously deteriorated, and he lost a lot of weight. His health declined further in May 2019 when he received news that his application for special leave to appeal to the High Court had been denied. By the end of July 2019, he had lost over 20 kg, or one-third of his body weight, and was hospitalised in a psychiatric facility in August 2019 where he stayed until 1 November 2019.

During the stay in the psychiatric facility the author was diagnosed with chronic Post-Traumatic Stress Disorder (PTSD) and a major depression episode. On 2 September 2019, a psychiatrist recommended that the author not be re-exposed to trauma and not be returned to a closed detention facility. She also recommended ongoing psychiatric care and that he return to the psychiatric facility on a monthly basis. Despite this, the author was returned to the Melbourne Immigration Transit Accommodation on 1 November 2019 and subjected to attempted deportation to Albania without prior notice on 8 November 2019. The deportation was aborted after the author stood up in his seat on the plane and said repeatedly that he was not fit to fly. At this point he and his escorts were requested to leave the plane. After the attempt to deport him, he lost additional weight, weighing only 50 kg at a height of 176 cm. He again stopped exercising and social interactions and stayed largely confined to his room, except for a one-week stay at a psychiatric facility from 24 November to 1 December 2019. He described being afraid to the point of paranoia about any interaction with staff and stopped accepting visits from friends and other people. He was admitted to the Northern Hospital three times from 23 to 27 January 2020 and diagnosed with infected kidney stones.

The author argues that he could not challenge his detention in court. He notes that the Migration Act specifically provides, in sections 189 (1), 196 (1) and 196 (3), that so-called “unlawful non-citizens” must be detained and kept in detention until they are: (a) removed or deported from Australia; or (b) granted a visa. Section 196 (3) specifically provides that even a court cannot release an unlawful non-citizen from detention. The author further states that the High Court of Australia has held that mandatory immigration detention is not contrary to the Constitution or national legislation. He further notes that the Committee has held, in C. v. Australia, that there is no effective remedy for persons subject to mandatory immigration detention in the State Party. The author informs the Committee that he has lodged complaints with the Australian Human Rights Commission and the Commonwealth Ombudsman concerning his conditions of detention. To date, no favourable outcome has been achieved.

The author claims a violation of his rights under articles 6, 7, 9, 10 and 26 of the Covenant. He claims that his detention was arbitrary in violation of article 9 of the Covenant and that the deterioration of his mental and physical health state was a foreseeable result of his arbitrary detention. He also claims that his indefinite and protracted detention caused him significant mental anguish, including suicidal ideation and resignation syndrome, causing him to refuse fluid and food intake. He argues that the treatment he was subjected to in detention amounted to ill-treatment in violation of his rights under articles 7 and 10 of the Covenant.

The author further claims that his arbitrary detention put his life at risk, in violation of his rights under article 6, and that despite this risk, the State Party took no demonstrable steps to mitigate such risk in violation of his rights under article 10 of the Covenant. The author also claims that his rights under article 26 of the Covenant were violated as he contends that unlike people who seek asylum in the State Party while on a valid visa or who are citizens of the State Party, he could not seek judicial review of his detention.

On 9 July 2021, the State Party submitted its observations on the admissibility and merits of the communication. It submits that the complaint should be found inadmissible for failure to substantiate the claims for purposes of admissibility.

The State Party provides information on applicable domestic legislation. It notes that any “unlawful non-citizen”, i.e. a non-citizen in Australia’s migration zone who does not hold a visa, is subject to immigration detention under section 189 of the Migration Act. Under section 46A(1) of the Act an application for a visa is not a valid application if it is made by an unlawful non-citizen. However, under section 46A(2) of the Act if the Minister for Citizen and Border Protection (the Minister) thinks it is in the public interest to do so, the Minister may determine that section 46A(1) does not apply (so-called “lifting the bar”). Section 195A of the Migration Act confers on the Minister a personal, discretionary, non-compellable power to grant a visa to a person in immigration detention, if the Minister thinks it is in the public interest to do so, subject to any conditions necessary to take into account their specific circumstances. Under section 197AB of the Migration Act, the Minister also has a power to make a residence determination, commonly known as “community detention”, if the Minister considers it in the public interest to do so. This allows a person detained under section 189 of the Migration Act to reside in the community at a specified place and in accordance with conditions specified in the determination.

The State Party informs that the author entered the Australian migration zone by boat on 16 September 2013 without a valid visa. The boat was intercepted by the Australian Navy, and the author was taken to Darwin where he was detained pursuant to section 189 (1) of the Migration Act. The State Party notes that the author’s protection claims have been found to not engage the State Party’s protection obligations in a number of domestic proceedings, including the refusal of the author’s Safe Haven Enterprise Visa application on 26 September 2016 by a Delegate of the Minister, the affirmation of said decision on 2 December 2016 by the Immigration Assessment Authority (IAA), and the dismissal of the author’s application for judicial review by the Federal Circuit Court and the Federal Court, on 10 November 2017 and 7 December 2018, respectively, as well as the dismissal by the High Court of Australia of the author’s application for special leave on 17 April 2019. The State Party further informs that the author’s case was referred for assessment against section 195A guidelines on three occasions. On 23 March 2017 and 17 January 2018, the author’s case was assessed, on balance, as not meeting the guidelines for referral to the Minister. In reaching this conclusion the Department of Home Affairs (the Department) considered a range of factors, including: the fact that the author had been assessed as not engaging the State Party’s protection obligations; that the author had ongoing judicial review proceedings; the impact ongoing detention may have on his health; and the length of time that he had already been in detention. On 17 August 2018, the author’s case was reassessed by the Department and his case was subsequently referred to the Minister for his consideration. On 27 March 2019 the Minister declined to consider intervening.

The State Party notes that the author has been in immigration detention since his arrival in Australia on 16 September 2013. It informs that on 11 January 2021, the author was voluntarily admitted to the Melbourne Clinic for psychiatric treatment, where he remained at the time of the submission of these observations and where he was being treated for Major Depressive Disorder, Post-Traumatic Stress Disorder and a restrictive eating disorder. The author was complying with treatment plans, including medications and psychology sessions. As at of 7 June 2021, the author weighed 55.2 kilograms, indicating an improvement in nutritional intake. The author received treatment from a dietician and had agreed to regularly take dietary supplements. The State Party asserts that for the duration of his time in immigration detention, the author has had access to a range of services, including services commensurate with those available to the Australian community, to ensure his mental and physical wellbeing. It notes that all persons in immigration detention are made aware that engaging in food or fluid refusal will not affect immigration decision-making processes. All persons held in detention are assigned an officer from the Department of Home Affairs, who provides regular updates on any plans for the person’s removal from Australia to that individual or their representatives. Further, the author’s detention was subject to regular review, which assessed the appropriateness of the accommodation and services provided.

The State Party submits that the author has not substantiated any of his claims for the purposes of admissibility. Regarding his claims under article 6 it submits that he has not established that his right to life under article 6 of the Covenant was at imminent threat of being breached. It argues that while he has provided some information with respect to his mental and physical health, and the medical services he has accessed in immigration detention, it submits that he has not provided sufficient evidence to substantiate his claim that medical recommendations have not been followed. It submits that the author has received adequate healthcare while in detention. The State Party likewise argues that the author has not provided any evidence to establish that his detention, its duration, or the conditions in detention meet the requisite threshold for a violation of article 7 and 10 of the Covenant. As concerns the author’s claims under article 9 the State Party argues that he has not identified the basis on which he alleges that his detention is arbitrary and that in his complaint he has not made a reference to article 9 (4) of the Covenant. Concerning the author’s claims under article 26 the State Party argues that said claims are generalised in nature and have not been supported by substantiating evidence.

As to the merits of the author’s claims the State Party notes his submission that due to his resignation syndrome, his death is “foreseeable”, and his claim that the State Party has not followed medical recommendations in relation to his care. It submits that during his period of detention the author received appropriate medical treatment and care. It further states that health care provided to detainees in immigration detention facilities in Australia is broadly commensurate with health care available to the Australian community through the public health system. It further notes that consistent with its policy with respect to persons in detention who refuse food or fluid, the author has been receiving regular medical assessments, at least every 24 hours, and more frequently if clinically indicated. All instances of food or fluid refusal are appropriately documented, reported, escalated and monitored. Psychological consultations are also undertaken as necessary to establish and monitor the mental competence of the author. The State Party informs that the author has undergone several medical assessments and notes that for example on 28 October 2020, he was transferred to Liverpool Hospital where he underwent psychiatric review and a medical assessment, in which he was deemed mentally capable of making decisions, and not in immediate danger of death or the need for invasive refeeding. On 4 November 2020, the author was medically cleared by Liverpool Hospital and transferred to Westmead Hospital, New South Wales, for further mental health assessment. The Westmead Hospital psychiatry team reported that the author did not have a mental health condition, and he was deemed to have capacity to make decisions. On 11 January 2021, the author was voluntarily admitted as an inpatient at the Melbourne Clinic where he was assessed as retaining decision making capacity with respect to his health care. The State Party thus submits that there is no basis on which the Committee could conclude that it has breached its obligations under article 6 of the Covenant.

Regarding the author’s claims under article 7 of the Covenant the State Party submits that neither the fact of the author’s detention, nor the conditions or duration of detention, amount to torture or cruel, inhuman or degrading treatment under article 7. The author has been provided with continuous access to a range of services, including health services, to ensure his mental and physical wellbeing. Where health concerns with respect to the author have arisen, medical care has been made available to and accessed by the author.

Regarding the author’s claims under article 9 the State Party submits that his detention was consistent with domestic legislation and not arbitrary. It argues, in this connection, that article 9 must be read in the context of the Covenant as a whole, including articles 12 and 13, which make clear that States Parties have the right, under international law, to control the residence, entry and expulsion of aliens. The State Party notes that it accepts that the author was in detention, within the meaning of article 9 (1) of the Covenant, while in immigration detention. It submits that the author’s immigration detention was lawful as it was in accordance with section 189 of the Migration Act. It further submits that the phrase “in accordance with such procedures as are established by law” in article 9 (1) refers to law in the domestic legal system. It argues that the travaux préparatoires demonstrate that the term “lawful”, and the phrase “on such grounds and in accordance with such procedures as are established by law”, both refer to the domestic laws of States Parties.

The State Party further submits that the author’s detention was not arbitrary because it was reasonable, necessary and proportionate to a legitimate purpose and subject to regular review, which included consideration of whether less restrictive alternatives were available. The State Party submits that the detention of an unlawful non-citizen is not inconsistent per se with a State Party’s obligations under article 9 of the Covenant. It submits that there is no rule that detention for a particular length of time will necessarily be considered arbitrary and that the determining factor is not the length of the detention but rather whether the grounds for detention are justifiable. In the present case, the State Party submits that the author’s detention was reasonable, necessary and proportionate for the legitimate purposes of: (a) preventing unlawful non-citizens from entering the Australian community after travelling to Australia by irregular means; (b) ensuring that the author was available for removal once his immigration matters were finalised; (c) ensuring the integrity of the migration programme of Australia; and (d) assessing the identity and security risk of unlawful non-citizens.

The State Party further argues that the author’s detention was subject to regular review. The Department of Home Affairs conducts its own internal reviews through the case management service. The review assesses the lawfulness of detention, case progression, health and welfare of the detainee, whether less restrictive forms of detention are available, and any other relevant information that has been raised or identified during the review. Accordingly, the Department ensured that individualized assessments were conducted as to the appropriateness of the author’s immigration detention, including the length and conditions of detention and the appropriateness of both the accommodation and services provided. It reiterates its argument that the author’s health and welfare have been considered as part of regular internal reviews regarding his detention to ensure that it remained reasonable, proportionate and necessary. The State Party notes the author’s reference in his complaint to an Interpol red notice. It however informs that the author’s detention in the State Party was not at any time based on the existence of any Interpol red notice or on national security grounds but based on domestic legislation and guidelines.

The State Party further notes the author’s claim that, as an unlawful non-citizen, he was unable to access any judicial or administrative processes to challenge his detention. It argues that judicial review of the lawfulness of detention was available to the author under section 75 (v) of the Constitution, which provides that the High Court of Australia has jurisdiction in relation to every matter where a writ of mandamus, prohibition or injunction is sought against an officer of the Commonwealth, and that habeas corpus is also available as an avenue under which a person is entitled to bring proceedings for a court to review the lawfulness of that person’s detention. Should the Court find the detention to be unlawful, it would be a matter for the Court to determine the appropriate remedy in the circumstances of the case. The State Party submits that the author was therefore able to test the lawfulness of his detention before a court, and that any claim under article 9 (4) of the Covenant is without merit.

Regarding the author’s claims under article 10 the State Party submits that the conditions of detention in Australian immigration detention facilities meet the requirements of article 10 (1) of the Covenant and that the author’s treatment and detention conditions readily complied with his right to be treated with humanity and dignity in detention. It reiterates its argument that persons in immigration detention are provided with clinically recommended physical and mental health care services at a standard generally commensurate with health care available to the Australian community, and that such care was available and provided to the author during his period of detention, with the recommendations of medical professionals have been given due regard at all times. The State Party further notes that “inhuman treatment must attain a minimum level of severity” in order to fall within the scope of article 10 (1). It submits that the author’s feelings of isolation do not fall within minimum requirements of article 10 (1). It further argues that the author’s claims with regards to his isolation in detention must be considered in light of the range of measures, policies and procedures that the Department and its contracted service providers have in place to ensure the wellbeing of people in immigration detention, including: access to a wide variety of communications services and information and media facilities, including computer, email, television, library and educational services; access to a regular schedule of programmes and activities targeted at enhancing the mental health and wellbeing of persons in detention facilities such as educational, sports, cultural and craft based programs; access to a gym and regularly offered recreational excursions; access to religious practitioners and religious practice; access to adequate mental and physical health care services consistent with duty of care obligations owed to persons in immigration detention; and individual management plans developed in respect of each person in detention, in order to ensure that individuals are provided with needs-based services and support. The State Party notes that the author during the detention period had access to the services outlined above. It submits that in light of the measures in place to ensure that the author had access to appropriate services, including support and mental health services, his allegations regarding his treatment in, and circumstances of, detention do not amount to a breach of article 10 (1) of the Covenant.

The State Party further notes that the author has invoked alleged discriminatory treatment regarding his possibility of challenging his detention as a non-citizen in the State Party. It submits that both Australian citizens and non-citizens can challenge their administrative detention through writ of mandamus, prohibition, injunction, or habeas corpus. There is no difference in treatment between citizens and non-citizens with respect to their ability to seek a judicial remedy in relation to administrative detention under section 75 (v) of the Constitution.

On 30 November 2021, the author submitted his comments on the State Party’s observations. He maintains that the communication is admissible, and he reiterates his claims as presented in his initial complaint.

The author notes the State Party’s argument that all decisions with respect to his treatment were informed by medical assessment. He argues that whilst he has received medical treatment at various intervals during his time in detention, the provision of treatment in those instances does not remedy the fact that the State Party failed to follow medical advice at certain critical junctures. He argues that the State Party has not shown that the treatment provided to him effectively ameliorated any of the symptoms. He reiterates his argument that a doctor’s recommendation that he be transferred to a less restrictive place, such as community detention, dated 2 September 2019 was not followed. After this there were additionally several instances where medical practitioners strongly advised against his continued detention in closed immigration detention facilities, including: (a) On 4 June 2020, a clinical reporting nurse noted that “detention centres are considered high risk locations in relation to COVID-19 transmission [and the author] is vulnerable to serious COVID-19 disease including death due to his current condition”; (b) On 12 August 2020, a consultant psychiatrist opined that the continued detention of the author “would most definitely lead to severe detrimental effects including related morbidity and mortality risks”; (c) On 4 September 2020, a psychiatrist opined that “there is a high likelihood [that the author] will die if the current situation continues and I would urge [the Department] to consider all possible options, including cessation of detention”; and (d) On 21 June 2021, a psychiatrist requested the author to be transferred to a less restrictive setting such as community detention. The author argues that instead of providing circumstances which would have promoted his health and wellbeing, the State Party authorities decided to maintain an environment that was not conducive to his physical or psychological recovery.

The author reiterates his argument that his prolonged detention amounted to cruel, inhuman or degrading treatment given that the length of detention caused him to suffer mental anguish, as substantiated by medical records. He additionally refers to a report by a psychiatrist regarding is health situation, dated 4 September 2020, in which it is noted that his “prolonged extreme starvation, a direct consequence of detention, has already caused significant, potentially irreversible morbidity”.

The author further reiterates his submission that his mandatory and prolonged immigration detention was arbitrary. He argues that the State Party has failed to explain how the detention was reasonable, legitimate or proportionate to any of the described legitimate aims. The author further reiterates his argument that his detention was not subject to regular review, he notes that the case management reviews referred to by the State Party are not independent and are conducted by the Department itself. He notes the State Party’s argument that he could have challenged the lawfulness of his detention pursuant to section 75 (v) of the Constitution. He however argues that judicial review of immigration detention decisions in the State Party is limited to whether detention is lawful in accordance with domestic law, not whether it is in accordance with article 9 (1) of the Covenant.

The author reiterates his argument that his right to be free from discrimination as per article 26 of the Covenant was breached because his detention arouse out of the imposition of discriminatory practices, in that the Migration Act authorised his detention for no other reason than that he fell under a certain category of people, being an individual who arrived in Australia by boat without a valid visa.

On 27 June 2024, the State Party submitted its further observations on the communication. It reiterates its submission that the communication should be found inadmissible for failure to substantiate the claims for purposes of admissibility.

Regarding the author’s claims under article 6 of the Covenant, the State Party notes that its obligations to persons in detention is to provide necessary medical care and appropriate regular monitoring of their health. It refers to its observations of 9 July 2021, and reiterates its argument that it has satisfied this obligation as appropriate and adequate medical treatment was made available to the author throughout the detention period. The State Party states that the medical recommendations referred to by the author in his comments were made after all judicial mechanisms for the review of the decision not to grant him a protection visa were exhausted on 17 April 2019. It argues that the author has not provided evidence of any medical recommendation for release from immigration detention prior to this time. After 17 April 2019, there was no possibility that the author could obtain a legal entitlement to remain in Australia, and he was liable to be removed to Albania at any time. The State Party further argues that the obligation in article 6 should not be read so as to require the State Party to permit the author to reside in Australia in circumstances where its non-refoulement obligations are not engaged. The State Party further argues that the author’s assertion that immigration authorities took no action to end the detention is unfounded. It notes that in November 2019, State Party authorities attempted to release the author from immigration detention by removing him to Albania. The author resisted this attempt and was ejected from a commercial flight by the pilot of the vessel.

Regarding the author’s claims under article 7 of the Covenant, the State Party reiterates its argument that the author has not provided any evidence to suggest conditions of detention existed which would constitute conduct so egregious as to amount to torture or cruel, inhuman or degrading treatment. It notes the author’s argument that the protracted detention caused him mental anguish in violation of his rights under article 7 of the Covenant. It submits that the mere allegation of mental anguish is insufficient to ground a claim of torture or cruel, inhuman or degrading treatment, without further articulation of the circumstances by which State Party authorities are alleged to have caused the author’s claimed mental anguish.

The State Party reiterates its submission that the detention of the author was in accordance with domestic legislation, not arbitrary and subject to regular review. It reiterates its submission that there is no rule that detention for a particular length of time will necessarily be considered arbitrary, and argues that the author’s detention was not indefinite, but only continued until such time as the author was removed from Australia. From the time that the author’s protection visa application was finally determined, State Party authorities, were under section 198(2) of the Migration Act, obliged to remove the author from Australia and, as a result, also from immigration detention. The author’s removal to Albania, and as such also his release from immigration detention, was only delayed in order for him to receive medical care, and by the author’s disruptive behaviour which caused him to be removed from a commercial flight by flight crew in November 2019.

The Committee notes that the adoption of interim measures pursuant to rule 94 of its rules of procedure, in accordance with article 1 of the Optional Protocol, is vital to the role entrusted to the Committee under that article. Failure to respect the interim measure requested by the Committee with a view to preventing irreparable harm undermines the protection of the rights enshrined in the Covenant.

As indicated in paragraph 19 of the Committee’s general comment No. 33 (2008) on the obligations of States parties under the Optional Protocol, failure to implement interim measures is incompatible with the obligation to respect in good faith the procedure of individual communications established under the Optional Protocol. The Committee is therefore of the view that, by failing to respect the request for interim measures – to refrain from removing the author to Albania while his case was pending before the Committee – transmitted to the State Party on 20 September 2021, the State Party failed in its obligations under article 1 of the Optional Protocol.

Before considering any claims contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes that the State Party has not specifically submitted that the author’s claims should be found to be inadmissible under article 5 (2) (b) of the Optional Protocol for failing to exhaust domestic remedies. The Committee, however, notes that the State Party has contended that the author could have challenged his detention by applying for a writ of mandamus under section 75 (v) of the Constitution, or for a writ of habeas corpus. The Committee recalls its jurisprudence that, although there is no obligation to exhaust domestic remedies if they have no chance of being successful, authors of communications must exercise due diligence in the pursuit of available remedies, and that mere doubts or assumptions about their effectiveness do not absolve the authors from exhausting them. The Committee also recalls that when the highest domestic court has ruled on the matter in dispute in a manner eliminating any prospect that a claim before domestic courts may succeed, authors are not obliged to exhaust domestic remedies for the purposes of the Optional Protocol. The Committee notes the author’s argument that, according to the jurisprudence of the High Court of Australia that applied at the time of his detention, indefinite detention of a so-called “unlawful non-citizen” was lawful under domestic legislation. The Committee recalls that it has stated that the possibility that the High Court could someday overrule its precedent upholding indefinite detention of “unlawful non-citizens” did not suffice to indicate the availability of an effective remedy. The Committee notes that, at the time of the author’s submission of his complaint before the Committee, said precedent had not been overturned. In the light of the above circumstances, the Committee considers that the author’s failure to apply for a writ of mandamus or habeas corpus to challenge his detention is not an obstacle under article 5 (2) (b) of the Optional Protocol to the admissibility of the present communication.

The Committee notes the author’s claims that his arbitrary detention put his life at risk due to his deteriorating health condition, in violation of his rights under article 6 of the Covenant. It further notes the State Party’s submission that appropriate and adequate medical treatment commensurate with health care available to the Australian community through the public health system was made available to the author throughout the detention period. The Committee recalls that States Parties have a heightened duty of care to take any necessary measures to protect the lives of individuals deprived of their liberty by the State, since by arresting, detaining, imprisoning or otherwise depriving individuals of their liberty, States Parties assume the responsibility to care for their lives and bodily integrity, and they may not rely on lack of financial resources or other logistical problems to reduce this responsibility. In the present case the Committee however considers that the author has not provided sufficient information to substantiate his claims under article 6 and therefore finds the claims inadmissible under article 2 of the Optional Protocol.

As to the claims raised by the author under article 26 of the Covenant, the Committee considers that the author has not provided sufficient information to support his claims of discriminatory treatment and finds the claims insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

The Committee considers that the author has sufficiently substantiated the remaining claims raised in the communication for the purposes of admissibility. Accordingly, the Committee declares the author’s claims under articles 7, 9 (1), 9 (4) and 10 (1) of the Covenant admissible and proceeds with its consideration of the merits.

The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

The Committee notes the author’s claims that he was subjected to arbitrary and prolonged detention in the State Party, in violation of his rights under article 9 (1) of the Covenant. It notes the State Party’s arguments that the detention was lawful under the Migration Act, in pursuit of the legitimate aim of ensuring the integrity of the State Party’s migration policies, and that it was reasonable, necessary and proportionate in the particular circumstances of the case. It notes the State Party’s argument that the author’s detention was subject to regular review and did not continue beyond the period for which it was justified.

The Committee refers to its general comment No. 35 (2014), in which it stated that an arrest or detention may be authorized by domestic law yet nonetheless be arbitrary and thus contrary to article 9 (1) of the Covenant. Detention in the course of proceedings for the control of immigration is not arbitrary per se, but must be justified as being reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time. Asylum-seekers who unlawfully enter a State Party’s territory may be detained for a brief initial period in order to document their entry, record their claims and determine their identity if it is in doubt. To detain them further while their claims are being resolved would be arbitrary in the absence of particular reasons specific to the person concerned, such as an individualized likelihood of absconding, a danger of crimes against others or a risk of acts against national security. The decision to detain must consider relevant factors on an individualized basis; must not be based on a mandatory rule for a broad category of persons; must take into account less invasive means of achieving the same ends, such as reporting obligations, sureties or other conditions to prevent absconding; and must be subject to periodic re-evaluation and judicial review. The inability of a State Party to carry out the expulsion of an individual because of statelessness or other obstacles does not justify indefinite detention.

In the present case, the Committee notes that the author was detained in September 2013 upon arrival in Australia and was held in various immigration detention facilities, with some periods of hospitalization in medical facilities, until his deportation to Albania on 21 September 2021. The author thus spent eight years in immigration detention under the State Party’s immigration detention policy.

The Committee notes the State Party’s argument that it considered the author’s individual needs in determining the appropriateness and necessity of detention (see para. 4.10 above). The Committee, however, considers that the State Party has not identified any individualized and specific reasons that would have justified the need to deprive the author of his liberty for such a protracted period. In particular, the State Party has not indicated that it determined that the author posed a risk to public security, public order or safety, or a risk of absconding, nor has it demonstrated that, in light of the author’s particular circumstances, there were not less invasive means of achieving the same ends – that is, compliance with the State Party’s immigration policies – through, for example, the imposition of reporting obligations, sureties or other conditions that would take account of the author’s deteriorating health condition. The Committee therefore finds that the protracted nature of the author’s detention was unreasonable, unnecessary and disproportionate to the State Party’s policy objectives and in violation of the author’s rights under article 9 (1) of the Covenant.

The Committee further notes the author’s claim that, under the jurisprudence of the Hight Court in Al-Kateb v. Godwin, which applied at the time of his detention, he was unable to seek judicial review of his detention, contrary to the requirements of article 9 (4) of the Covenant.

Article 9 (4) entitles anyone who is deprived of liberty by arrest or detention to take proceedings before a court, in order that the court may decide without delay on the lawfulness of the detention and order release if the detention is not lawful. The Committee refers to its general comment No. 35 (2014), in which it stated that judicial review of the lawfulness of detention under article 9 (4) is not limited to mere compliance of the detention with domestic law, but must include the possibility to order release if the detention is incompatible with the requirements of the Covenant, in particular those of article 9 (1). The Committee further recalls its previous jurisprudence concerning review of the detention of non-citizens without valid entry documentation in the State Party, in which it concluded that the scope of domestic judicial review of immigration detention was insufficient to permit the examination of an individual’s detention in substantive terms. In its previous jurisprudence, the Committee has further stated that the State Party has not provided any relevant legal precedents showing the effectiveness of an application for a judicial review of mandatory immigration detention under the Migration Act, nor has it shown that national courts have the authority to make individualized rulings on the justification for an applicant’s detention. The Committee therefore considers that the facts in the present case amount to a violation of the author’s rights under article 9 (4) of the Covenant.

The Committee further notes the author’s claim that the deterioration of his mental and physical health was a foreseeable result of his protracted arbitrary detention amounting to a violation of his rights under articles 7 and 10 of the Covenant. It further notes his argument that the State Party failed to follow medical advice at certain critical junctions and his argument that instead of providing circumstances which would have promoted his health and wellbeing, the State Party authorities decided to maintain an environment that was not conducive to his physical or psychological recovery (see para. 5.2). It notes the State Party’s argument that the author was provided with continuous access to a range of services, including adequate physical and mental health care services, to ensure his wellbeing during the entire period of detention.

The Committee refers to paragraph 3 of its general comment No. 21 (1992), in which it stated that article 10 (1) imposes a positive obligation on States Parties towards persons who are particularly vulnerable because of their status as persons deprived of liberty. Decisions regarding the detention of migrants must take into account the effect of detention on their physical or mental health. The Committee recalls that persons deprived of their liberty must not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty. It further recalls that inhuman treatment must attain a minimum level of severity to come within the scope of article 10 of the Covenant. The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim, with detention authorities having a specific responsibility, among others, to provide prisoners with appropriate medical services. In this connection the Committee also recalls its jurisprudence in which it has held that prolonged and indefinite immigration detention against medical advice resulting in deteriorating mental health may, in combination with the arbitrary character of the protracted duration or indefinite term of detention amount to a violation of articles 7 and 10 of the Covenant.

In the present case, the Committee notes that it is undisputed that the author was diagnosed with chronic Post-Traumatic Stress Disorder (PTSD) and a major depression disorder, and that he was hospitalised on several occasions, including in psychiatric facilities. It further notes that on 2 September 2019, a psychiatrist recommended that the author not be re-exposed to trauma and not be returned to a closed detention facility, after which there were additional recommendations by medical practitioners advising that his continued detention in closed immigration facilities would lead to a further deterioration of his health (see para. 5.2.) The Committee thus observes, as established by the author’s medical records, that the uncertainty regarding his migration status and the subsequent deprivation of freedom were factors that contributed significantly to the author’s vulnerable physical and mental health situation. The Committee considers that the conditions of the author’s detention as described violated his right to be treated with humanity and with respect for the inherent dignity of the human person and were therefore contrary to article 10 (1) of the Covenant, a provision of the Covenant dealing specifically with the situation of persons deprived of their liberty and encompassing for such persons the elements set out generally in article 7. On the basis of the information before it, in particular the disproportionate impact of the detention conditions on the author’s physical and mental health, the Committee finds that the arbitrary character of the protracted detention, constitute a violation of his right not to be subjected to inhuman or degrading treatment under article 7 of the Covenant. For these reasons the Committee finds that the circumstances of the author’s detention, constitute a violation of his rights under articles 7 and 10 (1) of the Covenant.

The Human Rights Committee, acting under article 5 (4) of the Optional Protocol is of the view that the State Party has violated the author’s rights under articles 7, 9 (1), 9 (4) and 10 (1) of the Covenant and of article 1 of the Optional Protocol.

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State Party is obligated to provide the author with adequate compensation. The State Party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future. In this connection, the State Party should ensure that its migration legislation and policies are in conformity with the requirements of the Covenant.

Bearing in mind that, by becoming a party to the Optional Protocol, the State Party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State Party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the language of the State party.

We agree with the Committee’s finding of violations of articles 7, 9 (1), 9 (4) and 10 (1) of the Covenant and of article 1 of the Optional Protocol. We write separately to express our disagreement with the Committee’s conclusion in paragraph 8.5 that the author has not provided sufficient information to support his claims of discriminatory treatment, finding the claims under article 26 inadmissible under article 2 of the Optional Protocol.

In doing so, the Committee followed several earlier cases against Australia. In our view, there were convincing reasons to distinguish this case from other cases, also in light of the conclusion by the Working Group on Arbitrary Detention (WGAD) on the case brought by the same person that there was discrimination of unlawful non-citizens in relation to the judicial review of their detention.

The WGAD distinguishes several categories of arbitrary deprivation of liberty, two of which are explicitly linked to article 26 on non-discrimination: the first “when the deprivation of liberty results from the exercise of the rights or freedoms guaranteed…by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the Covenant (category II); and the second “when the deprivation of liberty constitutes a violation of international law on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status, that aims towards or can result in ignoring the equality of human beings (category V).”

The WGAD concluded arbitrary detention based on category II, but not in relation to article 26. The WGAD agreed with Australia that the deprivation of liberty was based on the automatic immigration detention policy under the Migration Act. It also referred to General Comment 15 of the Committee stating that “it is in principle a matter for the State to decide who it will admit to its territory.” The WGAD added that the same General Comment also includes that “aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof.” Indeed according to General Comment 15 (para. 5) in certain circumstances the Covenant’s safeguards apply to non‑nationals also in matters of entry and residence, notably when questions of non-discrimination are raised.

The WGAD further concluded arbitrary detention based on category V, including a violation of article 26 in relation to the lack of procedural guarantees to challenge the detention. Unlike in earlier cases such as Tran v. Australia, the WGAD in this case elaborated on the point of discrimination. It noted that Australia has consistently argued that the distinction between Australian citizens who can challenge administrative detention, whereas non-citizens cannot, is based on a decision of the High Court in Al-Kateb v. Godwin. The WGAD found that this judgment mainly concerned the differential treatment in relation to detention and that Australia did not sufficiently explain how non-citizens can effectively challenge their continued detention, “which is what the Government must show in order to comply with articles 9 and 26 of the Covenant.” It followed the Committee’s jurisprudence as regards the lack of effective remedies to challenge the legality of continued administrative detention, but added that this situation is discriminatory and contrary to article 26 of the Covenant.

The Committee concluded violations of articles 7, 9 (1), 9 (4) and 10 (1) of the Covenant, which include arbitrary detention and lack of judicial review. However, the Committee in our view failed to add the discriminatory aspect of the lack of effective remedy to challenge the detention, as concluded by the WGAD.

The author further raised the issue of discrimination in light of his detention, which he considered to “…arouse out of the imposition of discriminatory practices, in that the Migration Act authorised his detention for no other reason than that he fell under a certain category of people, being an individual who arrived in Australia by boat without a valid visa.” Although the Migration Act of Australia does not formally make a difference between unlawful non-citizens arriving by boat and by plane, in practice maritime arrivals lead to automatic, mandatory detention, which is often offshore and prolonged, whereas for those arriving by air there are less restrictive alternatives, such as living in community on bridging visas with reporting conditions. Differences in how the law is applied can result in unequal treatment that may amount to discrimination.

The State party has argued that these measures are based on the law and aim at regulating border control and maintaining the integrity of the immigration system, as well as to discourage dangerous boat journeys. Deterrence is not accepted by the Committee as justification for severe rights restrictions, in particular prolonged detention under articles 9 and 10. However, the Committee did not assess whether the differential treatment also constitutes discrimination as prohibited by Article 26, which in our view it should have done in answer to the claim raised by the author

I fully agree with the conclusion reached by the Committee in the present Views: the severe treatment inflicted to Mr. Pjetri for years is not only an arbitrary deprivation of liberty but also in breach with the protection of his dignity under articles 7 and 10 of the Covenant. In such a context, this is even more regrettable that in addition to the violation of its substantive obligations under the Covenant, Australia breached its procedural obligations under article 1 of the Optional Protocol by not respecting the interim measures that were granted. As stressed by the Committee in the present Views (paras. 7.1-7.2), relying on in its General Comment No. 33 and its longstanding jurisprudence, the State’s obligation to respect the Committee’s interim measures is not only based on the good faith principle codified in article 26 of the Vienna Convention on the Law of Treaties but also on the State’s commitment to ensure the effective access of the individuals to the Human Rights Committee under article 1 of the Optional Protocol.

However, I disagree with the decision of the Committee to declare inadmissible the claim of the author under the right to equality before the law (article 26 of the Covenant). According to Mr. Pjetri, his situation amounted to a discrimination, since “unlike people who seek asylum in the State Party while on a valid visa or who are citizens of the State Party, he could not seek judicial review of his detention” (para. 3.2). In paragraph 8.5 of the present Views, the Committee laconically rejected this claim, indicated that “[…] the author has not provided sufficient information to support his claims of discriminatory treatment and finds the claims insufficiently substantiated […]”.

This is not the first time the Committee had the opportunity to analyse the discriminatory nature of the Australian migration legislation vis-à-vis people arriving by the sea. On the contrary, there seems to be a structural discrimination in the State Party, a pattern which has been addressed on multiple occasions by the Working Group on Arbitrary Detention (WGAD) but never properly analysed by the Committee. In this regard, I already expressed my Opinion on this issue in the Tran v. Australia Views where the very same legal question was raised. I will not repeat what we wrote on this case but it still stands.

In Tran v. Australia, I eventually decided to rally the decision of the Committee on article 26 because I considered that the author had not elaborated sufficiently on the discrimination. I also found that the WGAD opinion regarding Ms Tran was not developed enough to ground a potential decision of admissibility and of violation of article 26. However, in the present case, the author substantiated his claim. In addition to what is mentioned in para. 3.2, the author reiterated further (para. 5.5) that “[…] article 26 of the Covenant was breached because his detention arouse out of the imposition of discriminatory practices, in that the Migration Act authorised his detention for no other reason than that he fell under a certain category of people, being an individual who arrived in Australia by boat without a valid visa.”

In addition, in his initial complaint, the author referred to the WGAD Opinion adopted in 2021 on his own situation, which concluded to the violation of article 26, with much more development and legal analysis than in the Tran case. Therefore, reading the claim in light of the WGAD Opinion, the assessment provided by the Committee regarding the lack of sufficient information is unclear and groundless. By its laconic conclusion of inadmissibility, the Committee does not explain which type of additional information should have been brought by the author.

In the present, there was enough contextual, factual and legal elements to declare admissible the claim under article 26 and to conclude to its violation.