Kwok v Australia (HRC, 2009)

Violations: ICCPR art 9(1)

Potential violations: ICCPR art 6, ICCPR art 7

Remedy's assessment: Partially remedied

The UN says:

The author is entitled to an appropriate remedy to include protection from removal to the People’s Republic of China without adequate assurances as well as adequate compensation for the length of the detention to which the author was subjected.

HRC (2009)

A Chinese woman fled China in 2000 when her husband was arrested for corruption offences potentially attracting the death penalty. Ms Kwok Yin Fong was wanted by Chinese authorities for alleged involvement in the ‘same set of circumstances’. China sought her forced repatriation from Australia without launching formal extradition proceedings, and Australia was willing to comply.

In 2003, her husband was sentenced to death. Ms Kwok, professing her innocence, claimed she would not receive a fair trial in China and could also be sentenced to death. The HRC issued Interim Views requesting a stay of deportation; Australia complied.

In its Final Views, the HRC found that Australia should not deport Ms Kwok, as the risk to her life ‘would only be definitively established when it is too late’. It found potential violations of the right to life and the prohibition on torture. It also found that the six-and-a-half years Ms Kwok spent in Villawood detention centre was arbitrary detention. Australia should not send Ms Kwok to China ‘without adequate assurances’ from the People’s Republic, and should compensate her for ‘the length of detention to which [she] was subjected’.

Ms Kwok was not refouled (that is, forcibly returned to a place of persecution or danger), but neither has she been compensated. The HRC has deemed Australia’s response satisfactory, despite its failure to pay compensation to one of its longest-serving immigration detainees.

Remedy Australia disagrees with this conclusion and submits that this case is only partially remedied. Ms Kwok is no longer under threat of deportation, since she has a permanent visa allowing her to remain in Australia. But, consistent the Committee’s Views in Kwok v Australia, Ms Kwok ought to be compensated for her exceptionally prolonged, arbitrary detention in ‘harsh and inhospitable’ conditions. The debilitating effects of her detention have persisted at least five years after her release.

For source details, see Remedy Australia's 2014 Follow-up Report (PDF 1.3Mb).

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