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freeform 2United Nations CCPR/C/108/D/2094/2011





International Covenant on

Civil and Political Rights
Distr.: General

20 August 2013


Original: English
Unedited Version



freeform 4Human Rights Committee


Communication No. 2094/2011



Views adopted by the Committee at its 108th session (8 – 26 July 2013)



Submitted by: F.K.A.G. et al. (represented by counsel, Ben

Saul) Alleged victims: The authors State party: Australia



Date of communication: 28 August 2011 (initial submission)
Document references: Special Rapporteur’s rule 97 decision, transmitted to the State party on 6 September

2011 (not issued in document form)


Date of adoption of Views: 26 July 2013
Subject matter: Indefinite detention of persons in immigration facilities.
Substantive issues: Right to liberty; right to protection from inhuman treatment; right to family life; right of children to protection.
Procedural issues: Exhaustion of domestic remedies; inadmissibility

ratione materiae; lack of substantiation.
Articles of the Covenant: 7; 9, paragraphs 1, 2 and 4; 10, paragraph 1; 17, paragraph 1; 23, paragraph 1; and 24, paragraph

1.
Articles of the Optional Protocol: 2; 3; 5, paragraph 2 (b).


GE.13



Annex



Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights (108th session)

concerning



Communication No. 2094/2011*
Submitted by: F.K.A.G. et al. (represented by counsel, Ben

Saul) Alleged victims: The authors State party: Australia



Date of communication: 28 August 2011 (initial submission)
The Human Rights Committee, established under article 28 of the International

Covenant on Civil and Political Rights,


Meeting on 26 July 2013,
Having concluded its consideration of communication No. 2094/2011, submitted to the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the authors of the communication and the State party,
Adopts the following:


Views under article 5, paragraph 4, of the Optional Protocol

1.1 The authors of the communication are 37 persons held in Australian immigration facilities. They are all Sri Lankan citizens of Tamil ethnicity except one author who is Myanmarese citizen of Rohingya ethnicity. They claim violations of their rights under articles 7; 9, paragraphs 1, 2 and 4; 10, paragraph 1; 17, paragraph 1; 23, paragraph 1; and

24, paragraph 1. The authors are represented by counsel.
1.2 On 4 July, 16 and 29 November 2012, following information received from counsel1, the Special Rapporteur on New Communications and Interim Measures, acting on

freeform 9* The following members of the Committee participated in the examination of the present communication: Mr. Yadh Ben Achour, Mr. Lazhari Bouzid, Ms. Christine Chanet, Mr. Ahmad Amin Fathalla, Mr. Cornelis Flinterman, Mr. Yuji Iwasawa, Mr. Walter Kaelin, Ms. Zonke Zanele

Majodina, Mr. Kheshoe Parsad Matadeen, Mr. Gerald L. Neuman, Sir Nigel Rodley, Mr. Victor Manuel Rodríguez-Rescia, Mr. Fabian Omar Salvioli, Ms. Anja Seibert-Fohr, Mr. Yuval Shany, Mr. Konstantine Vardzelashvili and Ms. Margo Waterval.

The text of an individual opinion by Committee member Sir Nigel Rodley is appended to the present

Views.


1 See paragraph 2.7.

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behalf of the Committee, requested the State party to adopt all necessary measures to ensure the physical and mental well-being of the authors, protect them from the risk of self-harm and provide them with support necessary to alleviate the high level of anxiety resulting from prolonged detention, so as to avoid irreparable damage to them. The Special Rapporteur also requested the State party to carry out an independent psychiatric examination of two of the authors.2


The facts as presented by the authors
2.1 31 of the authors, including two children, entered Australian territorial waters by various boats between March 2009 and March 2010. They were apprehended at sea and were first disembarked at Christmas Island, which forms part of Australian territory. They were taken to immigration detention facilities, under section 189 (3) of Migration Act 1958, according to which Australian authorities must detain a person who is an “unlawful non- citizen” in an “excised offshore place”. They did not have valid visas to enter Australia. One of the authors3 is a minor child born in detention in Australia.
2.2 Five of the authors (cases number 13, 14, 15, 22 and 34) were brought to Australia after having been rescued at sea by Australian customs vessel Oceanic Viking which disembarked them in Indonesia. Australia then agreed with Indonesia that it would receive them into Australia on 29 December 2009 on ‘special purpose’ visas. Upon arrival at Christmas Island by plane their visas expired and they became ‘unlawful non-citizens’ in the ‘migration zone’ who did not enter at an ‘excised offshore place’. They were entitled to apply for protection visas and were placed in immigration detention pending a permanent resolution of their status.
2.3 The authors were subsequently transferred to a range of immigration detention facilities. The authors belonging to the group of 31 were later recognised by the Department of Immigration and Citizenship (DIAC) as refugees for whom return to their countries of origin was unsafe. The five of the Oceanic Viking were recognised as refugees by UNHCR but sought to apply for permanent protection in Australia.
2.4 All adult authors were subsequently refused visas to remain in the State party following adverse security assessments made by the Australian Security Intelligence Organisation (ASIO). None of the authors were provided with a statement of reasons for these adverse security assessments. The three children were granted protection visas.

2.5 The authors are unable to challenge the merits of their security assessment.4 The only avenue available to them is a review before the federal courts for “jurisdictional error” (error of law), which may include the denial of procedural fairness. However, such review is not a merits review of the factual and evidentiary basis of the ASIO decision. Since the grounds of ASIO’s assessments have not been disclosed, the authors have no way of determining whether there exist any jurisdictional errors.


2.6 As they have been refused a visa, all the authors are kept in detention for the purpose of removal, under section 198 of the Migration Act. However, they do not wish to return voluntarily to their countries of nationality and the State party has not informed them of any intention to remove them to their countries of origin. Nor has the State party informed them

freeform 132 Authors 29 and 30

3 Author No. 16

4 The letters received by the authors regarding the outcome of their security assessment indicate that

they “do not have a right to seek merits review of the ASIO assessment. This is because under the Australian Security Intelligence Organisation Act 1979, only certain categories of persons are able to seek merits review of a security assessment and you do not come within any of those categories”.


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that any third country has agreed to accept them, or that active negotiations for such purpose are under way. No third country is obliged to admit them. It is also highly improbable that any third country would accept them when they have been assessed by Australia as a risk to security.


2.7 In subsequent letters counsel informed the Committee about the escalating risk to the mental and physical health of the authors in detention. Thus, in May 2012, K.N. (author No. 11) took an overdose of anti-depressant medication and had to be hospitalized. On 6

May 2012, S. Y. (author No. 34) was found attempting to self-harm with an electrical power cable. K.S. (author No. 27) attempted suicide on 8 November 2012. His actions were prompted by his concern about the treatment of his brother, P.S. (author No. 29), who is mentally ill and is not getting adequate treatment. K.T. (author No. 30) attempted suicide on 15 and 24 November 2012.5


The complaint
3.1 The authors claim that their detention violates article 9, paragraphs 1, 2 and 4; article

7; article 10, paragraph 1; article 17, paragraph 1; article 23, paragraph 1; and article 24, paragraph 1 of the Covenant.


Article 9, paragraph 1
3.2 The authors’ detention is arbitrary or unlawful under article 9, paragraph 1, in two separate phases: first, before Australia’s decision to refuse them refugee protection and second, after Australia’s refusal decision and pending their removal from Australia.
3.3 The State party did not provide any lawful, individualized justification for detaining the authors upon their arrival to determine whether each of them presented a risk of absconding, lack of cooperation, or posed a prima facie security threat. All were automatically detained merely because they were ‘unlawful non-citizens’ in an ‘excised offshore place’. The statutory framework does not permit an individual assessment of the substantive necessity of detention.
3.4 In the absence of any substantiation of the need to individually detain each author, it may be inferred that such detention pursues other objectives: a generalized risk of absconding which is not personal to each author; a broader aim of punishing or deterring unlawful arrivals; or the mere bureaucratic convenience of having such persons permanently available. None of these objectives provides a legitimate justification for detention.
3.5 As to the post-refusal stage, the mere assertion by the executive that a person poses a security risk cannot satisfy the requirements of article 9.6 The secret basis of the security

freeform 175 See para. 1.2 above. On 26 February 2013, in response to the Committee’s concerns, the State party provided information about the application to the authors concerned of various policies, which include a Psychological Support Program, educational and recreational activities and the assignment of a Personal Officer to meet regularly with them and help with any queries.

6 The authors provide a sample of letter received from DIAC informing them about the security

assessment outcome. The substantive part of the letter indicates: “ASIO assesses [name of author] to be directly (or indirectly) a risk to security, within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979. ASIO therefore recommends that any application for a visa by [name of author] be refused”.

Section 4 of the Act defines “security” as:

(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from:



(i) espionage;

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assessment renders it impossible to evaluate the justification for detention. It also constitutes a denial of due process of law. It can only be assumed that the assessments relate to their suspected conduct prior to their entry to Australia. However, if the State party possesses good evidence to suspect that any of the authors has committed a crime in the context of the armed conflict in Sri Lanka, or by association with an organisation such as the LTTE, such crimes can be prosecuted under Australian law. Furthermore, any prior activities of the authors in Sri Lanka cannot easily establish that the authors present a relevant risk to the Australian community. The provenance of information about them may also be unreliable, particularly if the Australian authorities have relied upon intelligence provided by the Sri Lankan Government.


3.6 The State party has not utilised any alternative means to detention, or demonstrated that such means would be inadequate or inappropriate in meeting security concerns. Furthermore, Australian law does not provide any legally enforceable mechanism for the periodic review of the grounds of detention or a maximum period of detention. Detention simply persists until a person receives a visa or is removed from Australia. In similar cases, the Australian High Court has confirmed the validity of indefinite immigration detention.
3.7 Australia’s security assessment operates as an additional, unilateral ground for excluding refugees which is not authorised under the Refugee Convention. Refugees can only be excluded from protection if they are suspected of committing the serious conduct specified under Article 1F, or pose risks under article 33(2) of the Convention, and not where they fall within the wide meaning of ‘security’ under Australian law. Their detention cannot be justified under international refugee law once neither Article 1F nor Article 33(2) applies.
Article 9, paragraph 2
3.8 None of the authors were informed by the authorities of the substantive reasons for their detention. At most, they were made aware that they were detained because they were

‘offshore entry persons’ and ‘unlawful non-citizens’ liable to detention under the Migration

Act.
Article 9, paragraph 4
3.9 The detention cannot be challenged under Australian law and no court has jurisdiction to assess its necessity, including by reference to risk factors pertaining to individual authors. The Migration Act requires the mandatory detention of offshore entry persons and does not provide for individualized assessments
3.10 The Australian courts can only conduct a purely formal review of whether the authors are offshore entry persons, whether they have been granted a visa or not, or whether they are being held pending removal to another country. While the courts can review administrative decisions on limited legal grounds of ‘jurisdictional error’, including denial of procedural fairness, such review does not concern the substantive necessity of detention.

freeform 21(ii) sabotage;

(iii) politically motivate violence;

(iv) promotion of communal violence;

(v) attacks on Australia’s defence system; or

(vi) acts of foreign interference;

whether directed from, or committed within, Australia or not; and

(aa) the protection of Australia’s territorial and border integrity from serious threats; and

(b) the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa). See also para. 6.4 below.


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3.11 Since the reasons for the adverse security assessments were not disclosed, it is impossible for the authors to identify whether any errors of law were made by ASIO. Furthermore, the courts have accepted that they lack the expertise to evaluate security information, and their review of the evidence in such cases remains largely formal and ineffective. Even if the authors could commence judicial review proceedings, ASIO could claim ‘public interest immunity’ to preclude the authors from challenging any adverse security evidence in court, as ASIO has done in other Federal Court cases involving adverse security assessments concerning non-citizens.


Articles 7 and 10, paragraph 1
3.12 The combined arbitrary character of their detention, its protracted and/or indefinite duration and the difficult conditions in the detention facilities are cumulatively inflicting serious, irreversible psychological harm upon the authors, contrary to articles 7 and 10, paragraph 1 of the Covenant. The difficult conditions of detention include inadequate physical and mental health services; exposure to unrest and violence and punitive legal treatment; risk of excessive use of force by the authorities; and witnessing or fearing incidents of suicide or self-harm by others. No domestic remedies, including constitutional remedies, are available in this regard.
3.13 Different institutions, including the Australian Human Rights Commission and medical bodies have expressed serious concerns in connection with the mental health of persons detained in immigration facilities. The impact of detention on the authors’ mental health is exacerbated by the physical conditions of the detention facilities. The Australian Human Rights Commission has expressed concern, for instance, at the extremely restrictive environment at Villawood IDC and at Darwin NIDC, with the use of extensive high wire fencing and surveillance. Christmas Island IDC was similarly described as prisonlike. The Commission has also expressed concern about the possibly excessive use of force in detention facilities and about inadequate mental and physical health care services.
Articles 17, paragraph 1; 23, paragraph 1; and 24, paragraphe 1
3.14 The five members of the R. family (cases Nos. 13 to 17) claim that their protracted detention constitutes also a violation of articles 17, paragraph 1; 23, paragraph 1; and 24, paragraph 1, as it interferes with family life and is not compatible with the State party’s obligation to protect the family and children. The family are housed in a separate facility at Villawood, the Sydney Immigration Residential Housing (IRH). The detention of the children is not justified. Given their age (1, 4 and 7 years old at the time of submission), they pose no security, health or absconding risks. While the residential housing facility at Villawood is preferable to the main detention compound, it is still a closed facility from which children and their families are not free to come and go. According to mental health professionals, the detention of infants and children have immediate, and are likely to have longer-term, effects on their development and their psychological and emotional health.
3.15 All five authors were extensively assessed by a psychiatrist in a report of 1

November 2010 which was provided to the Minister for Immigration and Citizenship. The report indicates that Mrs. R. is seriously depressed and would fulfil standard criteria for major depressive disorder. She also has some features of post-traumatic stress disorder. Her depressive state can be appropriately understood in terms of the severe stressors they have experienced since their detention and the uncertainty about what would happen to them. The three year old son may be abnormally sad and anxious and could be malnourished. His normal development has been seriously disrupted. All three children might have difficulties in the future if they continue to live in detention, with restraints on friendships when not at school, on contact with extended family and on extra-curricular activities at school.



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3.16 Their detention constitutes an interference in family life because it disrupts the ordinary family interactions, freedoms and relationships, including the ability to determine its own place of residence, living conditions, choice of co-habitants, family activities outside the home, relationships in the community etc. This interference is not justified by any legitimate aim, because their protracted detention violates articles 9, 7 and 10 of the Covenant.
3.17 Author No. 20, S.S., is separated by detention at Villawood, since August 2011, from his wife and minor child, who are living in the community in Sidney. Their separation is causing serious stress and anxiety for the family, including the uncertainty about the prospects of family reunification in circumstances where detention is indefinite and non- reviewable. Such harmful interference to the family cannot be adequately mitigated by periodic visitation of the author by his family. The wife finds it extremely difficult integrating into the Australian community without her husband and suffers on going stress related health problems as a result. The author’s wife and child are housed a significant distance from the facilities where the author is detained, making their daily visits onerous, time consuming and expensive. Where the author’s detention is unlawful, there is no lawful justification for the interference in family life caused by it and the State party is responsible for the violation of articles 17, 23, paragraph 1 and 24, paragraph 1 of the Covenant. 7
3.18 For the reasons indicated above, there is no binding domestic remedy available to the authors to prevent the arbitrary interference in their family life or to compel the protection of their families or children in the manner required by articles 23, paragraph 1 and 24, paragraph 1.
Remedies sought
3.19 The State party should, inter alia, acknowledge the violations of the Covenant, grant the authors immediate release, apologize to them and provide them with adequate compensation, including for the mental distress and psychological suffering. Where the State party believes it is necessary to detain the authors, it should provide an individual assessment of the necessity of detaining each author; consider less invasive alternatives to detention and provide a procedure for the periodic independent review of the necessity of continued detention; and provide for the effective judicial review of the necessity of detention.
3.20 In terms of the guarantees of non-repetition, Australian law should be amended to: eliminate mandatory detention; require an individual assessment of the necessity of detention; inform detainees of the substantive reasons for their detention; require periodic independent review of the necessity of detention; require consideration of less invasive alternatives to detention; provide for substantive and effective judicial review of detention and of adverse security assessments; and take measures for the more effective protection of family and children’s rights.
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