The Kafka-esque Case of Sheikh Mansour Leghaei: The Denial of the International Human Right to a Fair Hearing in National Security Assessments and Migration Proceedings in Australia

Abstract

This article examines the near-total denial of fair hearing rights under Australian law to non-permanent resident, non-citizens whom the national authorities suspect are national security risks to Australia, closely analysing of the case of Dr Sheikh Mansour Leghaei, an Iranian national expelled from Australia in June 2010. It argues, first, that the statutory elimination of procedural fairness rights violates the international human right to a fair hearing in the expulsion of aliens under the International Covenant on Civil and Political Rights (‘ICCPR’). Affected persons and their legal representatives are denied any effective opportunity to see and test the essential allegations and evidence grounding an adverse security assessment. Administrative review tribunals and federal courts are also precluded from any substantive role in testing the reliability of evidence. Whether the person is indeed a risk to national security cannot be rationally determined. Secondly, this article concludes that denying fair hearing rights to non-permanent resident, non-citizens amounts to unjustifiable discrimination on the basis of ‘national origin’ or ‘other status’ (temporary migrant status), breaching the ICCPR’s non-discrimination and equal protection guarantees. Thirdly, it finds that an affected person’s expulsion from Australia without a fair hearing may violate family rights under the ICCPR and children’s rights under the Convention on the Rights of the Child 1989.

Keywords: right to air hearing, procedural fairness, due process, immigration, expulsion/deportation, national security, Australia, UN Human Rights Committee

JEL Classification: K10, K30, K33