Findings and recommendations As noted above, the department first considered whether to refer Mr AI’s case to the Minister for consideration of a community detention placement in June 2014. By this time, Mr AI had already been in immigration detention for more than two years. The department decided not to refer Mr case to AI’s the Minister. The internal assessment as to whether Mr department’s AI’s case should be referred to the Minister properly took into account his criminal history and prior visa refusals on character grounds. The mitigation of risks to the Australian community was a legitimate aim on behalf of the Commonwealth. However, there was material before the department which could have led to the conclusion that the risk to the Australian community either was low or could have been mitigated by conditions placed on community detention. This material included the own view that Mr previous convictions department’s AI’s were the fact that he has not been convicted of any offence ‘relatively minor’, for more than 10 years, and its view from the time when Mr AI was living in the community that Mr AI was compliant with the department and therefore unlikely to be a flight risk. These factors did not form part of the department’s internal assessment. Further, the internal assessment failed to properly take into department’s account the fact that from at least October 2012 Mr AI had outstanding legal applications which would take a significant amount of time to resolve. There was no prospect of his imminent removal from Australia. As a result, there was a significant risk that his continued detention while the assessment of his claims for protection were finally determined would be protracted and could become arbitrary. In the circumstances, the failure to refer Mr case to the Minister in order AI’s for the Minister to assess whether to exercise his public interest powers in light of all of the facts was not proportionate to the aim of either facilitating his removal from Australia or mitigating risks to the Australian community. The department should have made a referral in or around October 2012 for the Minister to consider exercising his public interest powers. That referral should have contained a risk assessment of Mr AI balancing relevant factors in his case, along with a consideration of whether any risks could be mitigated in a community detention placement. There was no reasonable justification for the delay of more than a year and a half in making a decision on the question of referral.
Findings and recommendations As noted above, the department first considered whether to refer Mr AI’s case to the Minister for consideration of a community detention placement in June 2014. By this time, Mr AI had already been in immigration detention for more than two years. The department decided not to refer Mr AI’s case to the Minister. The department’s internal assessment as to whether Mr AI’s case should be referred to the Minister properly took into account his criminal history and prior visa refusals on character grounds. The mitigation of risks to the Australian community was a legitimate aim on behalf of the Commonwealth. However, there was material before the department which could have led to the conclusion that the risk to the Australian community either was low or could have been mitigated by conditions placed on community detention. This material included the department’s own view that Mr AI’s previous convictions were ‘relatively minor’, the fact that he has not been convicted of any offence for more than 10 years, and its view from the time when Mr AI was living in the community that Mr AI was compliant with the department and therefore unlikely to be a flight risk. These factors did not form part of the department’s internal assessment. Further, the department’s internal assessment failed to properly take into account the fact that from at least October 2012 Mr AI had outstanding legal applications which would take a significant amount of time to resolve. There was no prospect of his imminent removal from Australia. As a result, there was a significant risk that his continued detention while the assessment of his claims for protection were finally determined would be protracted and could become arbitrary. In the circumstances, the failure to refer Mr AI’s case to the Minister in order for the Minister to assess whether to exercise his public interest powers in light of all of the facts was not proportionate to the aim of either facilitating his removal from Australia or mitigating risks to the Australian community. The department should have made a referral in or around October 2012 for the Minister to consider exercising his public interest powers. That referral should have contained a risk assessment of Mr AI balancing relevant factors in his case, along with a consideration of whether any risks could be mitigated in a community detention placement. There was no reasonable justification for the delay of more than a year and a half in making a decision on the question of referral.
2015_AusHRC_101.docx