Kwok v Australia, CCPR/C/97/D/1442/2005 (23 November 2009) The United Nations Human Rights Committee has found Australia to be in breach of its obligations under art 9(1) of the International Covenant on Civil and Political Rights in relation to mandatory immigration detention. The Committee ruled that 'detention for a period in excess of four years without any chance of substantive judicial review is arbitrary within the meaning of Article 9(1)'. The Committee also found potential breaches of arts 6 and 7 of the ICCPR if Australia returns the author, Ms Kwok, to China where she will likely face the death penalty.
Kwok arrived in Australia on 10 March 2000 on a valid temporary visitor's visa. Five days prior, Kwok's husband had been detained and held without charge by Chinese authorities. It is understood that he has since been convicted of accepting bribes and sentenced to death. On 5 January 2001 Kwok was interviewed by the Department of Immigration on the basis that she is wanted in China for diverting over 1 million yuan of company funds and on suspicions of bribery. While unaware of the exact nature of the charges against her, Kwok is aware that they are substantially the same allegations upon which her husband was convicted.
Kwok lodged an application for a protection visa in Australia on 8 January 2001. Kwok maintains that if returned to China she will face the same persecution as her husband, combined with further punishment due to her identification in Chinese newspaper articles as an asylum seeker and critic of Chinese authorities.
Kwok's application for a protection visa was rejected in repeated proceedings before the Department of Immigration, the Refugee Review Tribunal and the Federal Court of Australia. Kwok is currently awaiting the decision of the Minister for Immigration as to whether she may remain in Australia under s 417 of the Migration Act 1958 (Cth).
Kwok claims that Australia is in breach of arts 6(1), 6(2), 7, 9(1), 9(4) and 14 of the ICCPR. These provisions relate to the right to life, the right not to be subjected to cruel, inhuman or degrading treatment or punishment, the right to liberty and security of person, the right not to be subjected to arbitrary arrest or detention and the right to a fair hearing. Kwok argued that if returned to China there is a 'real and foreseeable risk' that she will:
- be convicted and sentenced to death;
- be subjected to torture or cruel, inhuman or degrading treatment or punishment; and
- not be afforded due process, including the right to a fair hearing by an independent and impartial tribunal.
Kwok also submitted that the Migration Act does not allow her to be released from her prolonged immigration detention in violation of art 9 of the ICCPR.
In response, Australia asserted that:
- while Kwok was likely to face charges in China which carry the death penalty, she may not be found guilty if charged and a sentence of death is not mandatory. It argued that 'a person would have to be sentenced to death to prove a real risk of a violation of the right to life';
- Kwok had made 'no attempt to demonstrate why or how she will be personally subjected to treatment contrary to art 7 if returned to China and how this would constitute torture or cruel, inhuman or degrading treatment or punishment';
- its non-refoulement obligations do not extend to violations under art 14 of the ICCPR; and
- Kwok had failed to demonstrate that her detention was in any way arbitrary or unlawful and that it had occurred in accordance with procedures established by the Migration Act.
The Committee found the reasons advanced by Australia to justify Kwok's extended detention were not particular to Kwok's case and could therefore not justify her prolonged detention. It found 'the Author's detention for a period in excess of four years without any chance of substantive judicial review was arbitrary within the meaning of Article 9, paragraph 1' of the ICCPR.
The Committee considered whether substantial grounds exist for considering that Kwok's deportation to China would expose her to a real risk of irreparable harm in violation of art 2, read together with arts 6 and/or 7 of the ICCPR. It noted that the danger to Kwok's life would only be confirmed once it is too late for Australia to protect her right to life under art 6 of the ICCPR. The Committee confirmed that it is not necessary for Kwok to prove she 'will' be sentenced to death but simply that there is a 'real risk' that she will receive a death sentence.
The Committee considered the anxiety and distress that the cumulative effect of being exposed to the following factors would cause Kwok:
- the risk of an unfair trial combined with the knowledge that her husband is believed to have been sentenced to death for 'accepting bribes'; and
- that a warrant has been issued for Kwok's arrest for similar offences.
These factors were considered in conjunction with Australia's assertion 'that it currently has no plans to remove her from Australia'. Ultimately the Committee found that 'an enforced return of the Author to the Peoples' Republic of China, without adequate assurances, would constitute violations by Australia, as a State party which has abolished the death penalty, of the Author's rights under arts 6 and 7 of the ICCPR'.
Relevance to the Victorian Charter and Australia's Legal Obligations
This decision does not fall within the jurisdiction of the Victorian Charter of Human Rights. However, it may be useful in the interpretation of s 21 of the Charter which ensures the right to liberty and security of person and is based on art 9 of the ICCPR. It can also be considered in light of ss 9 and 10 of the Charter which are non-derogable rights based on arts 6 and 7 of the ICCPR and which ensure the right to life and the protection from torture, cruel, inhuman or degrading treatment.
Importantly, this decision confirms that it is not necessary for a country to establish that a person 'will' be sentenced to death if returned to a country which may impose a death sentence but simply that there is a 'real risk' that a person will receive a death sentence in order to breach its obligations under the ICCPR. Australia should be conscious of this decision when complying with other domestic and international obligations relating to the death penalty such as the Australian Federal Police Guidelines governing police to police assistance in possible death penalty cases, the discretion of the Attorney General to extradite an eligible person to a country which has the death penalty under s 22 of the Extradition Act 1988 (Cth) and its obligations under the Second Optional Protocol to the ICCPR.
The decision is available at http://www2.ohchr.org/tbru/ccpr/CCPR-C-97-D-1442-2005.pdf.
Lucy Spencer is a Board member of Reprieve Australia