As a result of this inquiry, I find that the following omissions by the Department contributed to the detention of Mr MH becoming arbitrary, contrary to article 9(1) of the ICCPR: • the failure of the Department to refer Mr MH’s case to the Minister in order to consider whether to exercise their discretionary powers under section 197AB or 195A of the Migration Act prior to 11 August 2021 • the fai. [...] I consider 2 acts of the Commonwealth as relevant to this inquiry: • the failure of the Department to refer Mr MH’s case to the Minister in order to consider whether to exercise their discretionary powers under section 197AB or 195A of the Migration Act prior to 11 August 2021 • the failure of the Department to refer Mr MH’s case to the Minister again until 17 June 2023. [...] I find that the following acts contributed to Mr MH’s detention becoming arbitrary, contrary to article 9(1) of the ICCPR: • the failure of the Department to refer Mr MH’s case to the Minister in order to consider whether to exercise their discretionary powers under section 197AB or 195A of the Migration Act prior to 11 August 2021 • the failure of the Department to refer Mr MH’s case to the Minis. [...] At paragraph 99, I expressed the view that the outcome of Mr MH’s criminal appeal should have triggered a reconsideration of the appropriateness of making a referral to the Minister, given the reduction in the number of offences he was convicted of, and to the sentence imposed. [...] On 26 April 2024, the Department provided the following response to my findings and recommendations: The Department of Home Affairs (the department) values the role of the Australian Human Rights Commission (the Commission) to inquire into human rights complaints and acknowledges the findings identified in this report and the recommendations made by the President of the Commission.
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