Human 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 victim: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

Procedural issues:Exhaustion of domestic remedies; inadmissibility ratione materiae; lack of substantiation

Substantive issues:Right to liberty; right to protection from inhuman treatment; right to family life; right of children to protection

Articles of the Covenant: Articles 7, 9(paras. 1,2 and 4), 10(para.1), 17(para.1), 23(para.1) and 24(para.1)

Articles of the Optional Protocol: Articles 2, 3 and 5 (para. 2 (b))

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 victim: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 on behalf of F.K.A.G. et al. 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

1.1The 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 a Myanmarese citizen of Rohingya ethnicity. They claim violations of their rights under articles 7, 9 (paras. 1, 2 and 4), 10 (para. 1), 17 (para. 1), 23 (para. 1) and 24 (para. 1). The authors are represented by counsel.

1.2On 4 July, 16 November and 29 November 2012, following information received from counsel, the Special Rapporteur on new communications and interim measures, acting on 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 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.

The facts as submitted by the authors

2.1Thirty-one of the authors, including two children, entered Australian territorial waters on various boats between March 2009 and March 2010. They were apprehended at sea and were first disembarked in Australia at Christmas Island. They were taken to immigration detention facilities, under section 189 (3) of the 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 authors is a minor child born in detention in Australia.

2.2Five of the authors (S.R. (author 13), A.R. (author 14), A.R. (author 15), S.S. (author 22) and S.Y. (author 34)) were disembarked in Indonesia after having been rescued at sea by the Australian customs vessel Oceanic Viking. Australia then agreed with Indonesia that it would receive them in Australia on 29 December 2009 on “special purpose” visas. Upon arrival at Christmas Island by plane, the 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.

2.3The authors were subsequently transferred to a range of immigration detention facilities. The authors belonging to the group of 31 were later recognized by the Department of Immigration and Citizenship (DIAC) as refugees for whom return to their countries of origin was unsafe. The five from the Oceanic Viking were recognized as refugees by the Office of the United Nations High Commissioner for Refugees (UNHCR) but sought to apply for permanent protection in Australia.

2.4All adult authors were subsequently refused visas to remain in Australia 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.

2.5The authors are unable to challenge the merits of their security assessment. 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 the ASIO assessments have not been disclosed, the authors have no way of determining whether there exist any jurisdictional errors.

2.6As they have been refused a visa, the authors are being 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 these countries. Nor has the State party informed them 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.

2.7In subsequent letters counsel informed the Committee about the escalating risk to the mental and physical health of the authors in detention. In May 2012, K.N. (author 11) took an overdose of antidepressant medication and had to be hospitalized. On 6 May 2012, S.Y. (author 34) was found attempting to self-harm with an electrical power cable. K.S. (author 27) attempted suicide on 8 November 2012. His actions were prompted by his concern about the treatment of his brother, P.S. (author 29), who is mentally ill and is not getting adequate treatment.K.T. (author 30) attempted suicide on 15 and 24 November 2012.

The complaint

3.1The authors claim that their detention violates articles 9 (paras. 1, 2 and 4), 7, 10 (para. 1), 17 (para. 1), 23 (para. 1) and 24 (para. 1) of the Covenant.

Article 9, paragraph 1

3.2The authors’ detention is arbitrary or unlawful under article 9, paragraph 1, in two separate phases: first, before the decision by Australia to refuse them refugee protection and second, after the refusal decision by Australia and pending their removal from Australia.

3.3The 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 or 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.

3.4In 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.

3.5As to the post-refusal stage, the mere assertion that a person poses a security risk cannot satisfy the requirements of article 9. The secret basis of the security assessment renders it impossible to evaluate the justification for detention and 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 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 organization such as the Liberation Tigers of Tamil Eelam, 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 Government of Sri Lanka.

3.6The State party has not utilized 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 High Court of Australia has confirmed the validity of indefinite immigration detention.

3.7The security assessment by Australia operates as an additional, unilateral ground for excluding refugees which is not authorized under the Convention relating to the Status of Refugees (Refugee Convention). Refugees can be excluded from protection only if they are suspected of committing the serious conduct specified under article 1F, or pose risks under article 33, paragraph 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 if neither article 1F nor article 33, paragraph 2, applies.

Article 9, paragraph 2

3.8None 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

3.9The 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.

3.10The 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. The courts can review administrative decisions on limited legal grounds of jurisdictional error, including denial of procedural fairness, but not the substantive necessity of detention.

3.11Since 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 (para. 1)

3.12In combination, the 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 (para. 1) of the Covenant. The difficult conditions of detention include inadequate physical and mental health services; exposure to unrest, 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.

3.13Different institutions, including the Australian Human Rights Commission and medical bodies, have expressed 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 Immigration Detention Centre and at the Northern Immigration Detention Centre at Darwin, with the use of extensive high wire fencing and surveillance. Christmas Island Immigration Detention Centre was similarly described as prisonlike. The Commission has also expressed concern about the possibly excessive use of force in detention facilities and the inadequate mental and physical health-care services.

Articles 17 (para. 1), 23 (para. 1) and 24 (para. 1)

3.14The five members of the R. family (authors 13–17) claim that their protracted detention constitutes also a violation of articles 17 (para. 1), 23 (para. 1) and 24 (para. 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 is housed in a separate facility at Villawood — Sydney Immigration Residential Housing. 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 has immediate, and is likely to have longer-term, effects on their development and their psychological and emotional health.

3.15All 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 S.R. (author 13) 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 the members of the family have experienced since their detention and the uncertainty about their future. 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 extracurricular activities at school.

3.16The detention of the R. family constitutes an interference in family life because it disrupts the ordinary family interactions, freedoms and relationships, including the ability to determine their own place of residence, living conditions, choice of co-habitants, family activities outside the home, and relationships in the community. This interference is not justified by any legitimate aim, because their protracted detention violates articles 9, 7 and 10 of the Covenant.

3.17Since August 2011, S.S. (author 20), has been separated, by detention at Villawood, 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, in circumstances where detention is indefinite and non-reviewable and cannot be adequately mitigated by periodic visitation of the author by his family. The wife finds it extremely difficult integrating into the community without her husband and suffers stress-related health problems as a result. The wife and child are housed a significant distance from the detention facility, 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 (para. 1) and 24 (para. 1) of the Covenant.

3.18For 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 (para. 1) and 24 (para. 1).

Remedies sought

3.19The 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; consider less invasive alternatives to detention; provide a procedure for the periodic independent review of the necessity of continued detention; and provide for the effective judicial review of that necessity.

3.20In 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 provide for measures for the more effective protection of family and children’s rights.

State party’s observations on admissibility

4.1On 5 December 2012, the State party argued that all the claims are inadmissible. It stated that on 15 October 2012 the Government announced that it would appoint an independent reviewer to review adverse security assessments issued in relation to asylum seekers owed protection obligations who are in immigration detention. The reviewer will examine all materials used by ASIO (including any new material referred to ASIO by the affected individual) and report his or her findings to the Attorney General, the Minister for Immigration and Citizenship and the Inspector-General of Intelligence and Security. The reviewer will also conduct a periodic review of adverse security assessments every 12 months. Both the initial and periodic review mechanisms will be made available to the authors of the communication, thus providing them with access to an open and accountable decision‑making process in relation to security assessments.

4.2Given that the authors have been found to be refugees they are owed protection obligations under international law and cannot be returned to their countries of origin. The Government is exploring solutions for them, including resettlement in a third country or safe return to their country of origin when the risk of harm no longer exists or when reliable and effective assurances can be received from the home country. However, it is not appropriate for individuals who have an adverse security assessment to live in the community while such solutions are sought.

Non-exhaustion of domestic remedies

4.3With reference to articles 7, 9 (paras. 1 and 4), 10 (para. 1), 17 (para. 1), 23 (para. 1) and 24 (para. 1), the authors have not exhausted domestic remedies. It was open to each of the authors to seek judicial review of the decision regarding detention in the Federal Court or High Court of Australia and, as part of the proceedings for judicial review, seek information regarding the basis for the security assessment. The authors have not sought such review, with the exception of P.S. (author 29), who made an application to the High Court, but subsequently settled with the Government of Australia and discontinued his case, and Y.R. (author 17), who commenced litigation in the High Court in May 2012 challenging his adverse security assessment and the legality of his detention. The High Court will consider whether procedural fairness was afforded to Y.R. in the issuing of an adverse security assessment; whether section 189 of the Migration Act authorizes his detention and whether it is inherent in the separation of powers in the Constitution that long-term detention of a person is lawful only if ordered by a Court. There is no date for the judgement as yet. The outcome of a successful application for judicial review of the adverse security assessment could be the reconsideration by ASIO.

4.4A recent case (Plaintiff M47/2012 v. Director General of Security and Ors) further demonstrates that there are domestic remedies still available to the authors. This case was brought by a person who arrived in Australia as part of the Oceanic Viking group. The High Court considered the reasons for the adverse security assessment which ASIO provided to Plaintiff M47 and the opportunity he had been given to address the critical issues upon which the security assessment decision was based. The High Court found that ASIO provided procedural fairness to Plaintiff M47 based on the circumstances of his particular case. However, it found a regulation made under the Migration Act invalid to the extent that it applied a criterion which prevented the grant of a protection visa to a refugee if that refugee was the subject of an adverse security assessment. The effect is that the refusal to grant Plaintiff M47 a protection visa was not made according to law and DIAC would need to reconsider his application for a protection visa. The Court found Plaintiff M47’s continuing detention was valid for the purpose of determining his application for a protection visa. The M47 judgement could be applied to those authors who arrived on the Ocean Viking (were they to submit protection visa applications, which they have not done to date). However, it does not affect those authors who are offshore entry persons under the Migration Act, as they are subject to a bar on making valid visa applications under section 46A of the Migration Act.

4.5The State party disagrees with the authors’ contention that judicial review proceedings are not worth pursuing as Australian courts are limited to conducting a review on the limited grounds of jurisdictional error and are not able to review the substantive merits of the necessity of detention. The fact that the M47 case was brought before the High Court and directly challenged the lawfulness of detention of persons in the authors’ circumstances shows that an effective remedy is still available to the authors in the same circumstances.

4.6The child authors (authors 14, 15 and 16), through their parents, have failed to make use of all administrative avenues that offer them a reasonable prospect of redress.

Inadmissibility ratione materiae

4.7Any claims in the communication based on the Refugee Convention are inadmissible ratione materiae as incompatible with the provisions of the Covenant.

4.8Claims under article 9, paragraph 2, are also inadmissible ratione materiae, as the authors were not “arrested”. The term “arrest” should be understood as referring to the act of seizing a person, in connection with the commission or alleged commission of a criminal offence, and taking that person into custody. The ordinary meaning of the term “arrest” does not extend to the placing of an asylum seeker into administrative detention for the purposes of undertaking health, security and identity checks.

Lack of substantiation

4.9Claims under articles 7 and 10 (para. 1) should be declared inadmissible for lack of substantiation. The authors made general submissions about the conditions of detention. However, they provided no evidence indicating that the treatment of each or any author in detention has risen to a level of humiliation or debasement beyond the fact of detention itself in their own particular circumstances.

Author’s comments on the State party’s observations on admissibility

5.1On 21 February 2013, the authors provided comments on the State party’s observations on admissibility.

5.2The authors reject the contention that domestic remedies have not been exhausted. Formal legal rights to judicial review of both detention and adverse security assessments exist, but the review is practically ineffective and/or too narrow in scope to protect Covenant rights. As regards review of detention, the courts may test whether a detainee is an offshore entry person, but have no power to consider the substantive necessity of detention. Further, jurisprudence of the High Court has established that indefinite immigration detention is lawful in domestic law. Under the requirement of exhaustion of domestic remedies authors cannot be expected to contest recent and final jurisprudence of the High Court. As regards judicial review of adverse security assessments, the authors are not adequately provided with the reasons or evidence sustaining their assessments, and so are unable to identify legal errors that would constitute a reviewable ground. Commencing speculative proceedings is considered an abuse of court process.

5.3There are also practical considerations impeding judicial review, namely, it is expensive for refugees who are in detention, lack any income and are not entitled to legal aid. As for the M47 case, the ability of that refugee to commence proceedings shows only that that particular person could identify legal errors, as a greater degree of disclosure of information was provided to him than to the authors in the present communication.

5.4Furthermore, the M47 case concerned a refugee from the Oceanic Viking who lawfully entered Australia on a special purpose visa. His situation is thus different from that of the majority of authors in the present communication, who entered Australia unlawfully by boat and are by law ineligible to apply for a protection visa. At most, the High Court ruling may apply to the five authors from the Oceanic Viking. Still, the High Court upheld the lawfulness of Plaintiff M47’s continuing detention. The legal basis of it simply switched from detention pending removal to detention pending a (valid) new security assessment and a reconsideration of his protection visa application. This demonstrates that the Courts are not empowered to release the authors from detention other than on narrow technical grounds.

5.5Regarding the child authors, they have the right to live in the community. However, this does not render their claims inadmissible. It is in their best interest both not to be separated from their parents and not to reside in detention. Any national security threat posed by the parents (which they deny) could be addressed by applying security measures to the parents in the community, such as surveillance, reporting, assurances, Global Positioning System (GPS) tracker bracelets or restrictions on communication and residency.

5.6Concerning the admissibility of allegations regarding violations of the Refugee Convention, the authors are not requesting the Committee to find direct or autonomous breaches of this Convention. Rather, they request the Committee to interpret article 9, paragraph 1 in accordance with refugee law, which should be considered as lex specialishere.

5.7As for the objection that article 9, paragraph 2, is confined to situations of criminal arrest, the authors contend that this provision shares in the protective purpose of article 9 to prevent arbitrary arrest or detention, not just criminal arrest or detention.

5.8The authors have submitted sufficient information for purposes of admissibility regarding claims under articles 7 and 10 and can submit more. Each author is willing to provide personal statements detailing their experience of detention and its impacts upon them. Further psychiatric reports for various authors are also available upon request.

5.9With respect to the appointment of an independent reviewer of adverse security assessments, the authors consider this as an improvement; however, it remains procedurally inadequate. First, the reviewer’s findings are not binding — they are only recommendations to ASIO. Secondly, there remains no minimum content of disclosure in all cases, which limits a refugee’s ability to effectively respond. In a given case, ASIO may still determine that it is not possible to disclose any meaningful reasons to a person and this will also prevent disclosure by the reviewer. Refugees thus may lawfully continue to receive no notice of allegations prior to decisions being made.

State party’s observations on the merits

6.1On 5 December 2012, the State party argued that the claims are without merit for the following reasons.

Article 9, paragraph 1

6.2The authors are unlawful non‑citizens detained under the Migration Act. Their detention is therefore lawful. The High Court of Australia has found the pertinent provisions of the Migration Act to be constitutionally valid. Asylum seekers are placed in immigration detention if they are: (a) unauthorized arrivals, for management of health, identity and security risks to the community; (b) unlawful non-citizens who present unacceptable risks to the community; and (3) unlawful non-citizens who repeatedly refuse to comply with their visa conditions.

6.3The length and conditions of detention, including the appropriateness of both the accommodation and the services provided, are subject to regular review. Detention is not limited by established time frames but depends on individualized assessments of risks to the community. These assessments are completed as expeditiously as possible. The determining factor is not the length of the detention but whether the grounds for it are justifiable.

6.4ASIO has individually assessed each adult author and determined, in application of section 4 of the Australian Security Intelligence Organisation Act, that granting a permanent visa to them would be a risk for one or more of the following reasons:

Posing security threats to Australia and Australians, including politically motivated violence, promoting community violence, or threats to the territorial and border integrity of Australia

Providing a safe haven for any organization(s) to which they belong to conduct attacks against their government either in Australia or overseas, and/or

Potentially providing a safe haven for individuals or terrorist organizations to engage in terrorist activities and terrorist financing within Australia

6.5Providing people with the classified details underpinning adverse assessments would undermine the security assessment process and compromise the security of Australia. It would also put ASIO sources at risk and erode the capabilities on which ASIO relies to fulfil its responsibilities.

6.6The detention of the adult authors is a proportionate response to the security risk they were individually found to pose. As for the three child authors, their best interests were considered, including residence in the community. In circumstances where the family decided to stay together in detention facilities, the children have been provided with appropriate and supportive services and facilities. They live in immigration residential housing and are free to attend school, outings and other organized activities in order for them to live with as limited restriction and as consistently with their status as lawful non-citizens as practicable, while solutions for the family are explored.

6.7The lawfulness of decisions made under the ASIO Act is subject to judicial review. In addition, the Inspector‑General of Intelligence and Security may inquire into the legality, propriety, effectiveness and appropriateness of ASIO in its work relating to the security assessment of non-citizens.

Article 9, paragraph 2

6.8Should the Committee conclude that the authors were “arrested” for the purposes of article 9, paragraph 2, the State party submits that this provision has not been breached. As is the usual practice, all authors arriving at Christmas Island were informed of the reasons for their detention, as set out in a detention notice written in English. The text of the notice was read out by a government official with the assistance of interpreters from the relevant language groups.

6.9The Ocean Viking authors were advised that they had not met the security requirements for the granting of a visa to settle in Australia permanently and were therefore required to be detained while resettlement solutions were considered. The other authors were told that they were detained because they were suspected of being unlawful non-citizens. When DIAC received advice from ASIO about the adverse security assessments, the authors were informed accordingly and explained that, as a result, they were not eligible for a permanent visa.

Article 9, paragraph 4

6.10The authors have access to judicial review of the legality of their detention, and a court may order their release if the detention does not comply with the law. Although section 494AA of the Migration Act bars certain legal proceedings relating to offshore entry persons, the section specifically indicates that the provision does not affect the constitutional jurisdiction of the High Court.

6.11Judicial review of adverse security assessments provides an important opportunity for courts to consider the release of information by ASIO to affected individuals. A party to the judicial review proceeding may seek access to any information, subject to relevance and to a successful claim for public interest immunity.

Articles 7 and 10 (para. 1)

6.12The system of immigration detention and the treatment of the authors in detention do not give rise to severe physical or mental suffering of the degree required to constitute treatment contrary to these provisions. Further, the system of mandatory immigration detention of unauthorized arrivals is not arbitrary per se and the individual detention of each author is not arbitrary, as it is reasonable, necessary, proportionate, appropriate and justifiable in all of the circumstances. Protracted detention is not in and of itself sufficient to amount to violation of these articles.

6.13The State party refutes the allegations that the conditions of detention amount to inhuman or degrading treatment. The authors have been placed in accommodation assessed to be most appropriate to their circumstances. A total of 11 authors are in immigration detention centres, 20 in immigration residential housing and 6 in immigration transit accommodation. These facilities are all operated by Serco, a private contractor that is obliged to ensure that people in detention are treated equitably and fairly, with dignity and respect. The actions and behaviour of Serco staff are underpinned by a code of conduct. Serco also has in place policies and procedures to ensure the well-being of detainees.

6.14Placement reviews take place regularly and have been conducted in each of the authors’ cases. Immigration detention is also subject to regular scrutiny from external and independent agencies, such as the Australian Human Rights Commission, UNHCR and the Minister’s Council on Asylum Seekers and Detention.

6.15Persons in immigration detention, particularly irregular maritime arrivals who have been subjected to torture and trauma or have pre‑existing mental health issues, may be vulnerable to mental health deterioration, self‑harming behaviour and suicide. Events such as the refusal of a visa application, uncertainty around one’s immigration status and time in detention can place additional stress on these persons. For this reason, they have access to health care and mental support services appropriate to their individual circumstances, and qualified health professionals conduct regular health assessments.

6.16All immigration detention facilities, including those in which the authors reside, have on-site primary health care services of a standard generally comparable to the health care available to the Australian community, and take into account the diverse and potentially complex health-care needs of persons detained in such facilities. When required specialist medical treatment is not available on site, detainees are referred to off-site specialists.

6.17Contrary to the assertions made by the authors, the physical conditions of detention are adequate and subject to continual improvement, and individuals are given sufficient opportunity to participate in recreational activities. Incidents involving unrest or violence may occur, for which Serco has extensive policies in place. The authors have not indicated any incidents of unrest or violence which they have personally witnessed. Restraints are used by Serco only as a last resort and strict limits apply to the level of force that may be deployed.

6.18The Committee cannot conclude that the authors have been personally subjected to treatment in breach of articles 7 and 10 (para. 1) in the absence of specific allegations regarding each particular author.

Articles 17 (para. 1), 23 (para. 1) and 24 (para. 1)

6.19There has been no interference with the R. family, given that the family has not been separated, and article 17 does not extend to interference with “family life”. Should the Committee disagree, the State party submits that there has been no interference, as the family has been provided with access to support, facilities and activities sufficient to ensure as minimal a disruption to family life as possible. Since 10 August 2010, the family has been housed in Villawood Immigration Residential Housing, which provides private, family-style accommodation within a community setting. The facility contains four duplex houses, each of which has three bedrooms, two bathrooms, a kitchen, living and dining areas and a garage area. A common area contains grassy space, small garden, children’s playground equipment, a basketball half-court and a covered recreation area. When the family arrived there they were subject to certain restrictions, due to the security risks Y.R. and S.R. were assessed as posing. These restrictions were eliminated afterwards and the family is able to freely associate with others residing in the facilities, receive visitors and participate in off-site activities.

6.20Should the Committee conclude that the detention amounts to interference with the family, the State party submits that the interference is not unlawful or arbitrary. The degree of hardship experienced by the family is outweighed by the need to protect national security interests.

6.21The State party has not interfered with the family life of S.S. either. His wife and child live close enough to be able to make daily visits to him, and he is able to visit them at their home on four-hour visits every Saturday. Furthermore, the decision to live separately was made by the family itself. Should the Committee find that the separation of the author from his family amounts to interference with the family, the interference is not unlawful or arbitrary, as it is proportionate to the legitimate aim of Australia of protecting its national security interests.

6.22For the same reasons, the claims under article 23, paragraph 1, are also without merit. The requirement of protection is subject to reasonable measures taken to control immigration, consistent with the State party’s right to control the entry, residence and expulsion of aliens, and to protect national security. Programmes and policies to support families in immigration detention are in place, including through qualified family support personnel, medical staff, counsellors and welfare officers.

6.23Claims under article 24, paragraph 1, are also without merit. The R. family has relatives in Sydney, the city where Villawood is located. The children therefore have the option of residing with relatives, while remaining in proximity to their parents. They remain in detention facilities due to the decision of their parents. By providing the children with the option of residing in the community, the State party has fulfilled its obligations under article 24, paragraph 1.

6.24Should the Committee not accept the above argument, the State party submits that the circumstances of the R. children’s detention does not amount to a violation of article 24, paragraph 1. Their best interests have been taken into account by providing them with adequate protective measures. They are holders of a protection visa, are eligible for access to the same health services as those available to Australian citizens, attend school and are allowed to take part in all school activities.

6.25As for theS. family, the provision of a number of accommodation options to the family, including options which have enabled the child to maintain a close relationship with his father, live in the community and attend school and other activities, shows that the State party has taken into consideration the best interests of this child.

Remedies

6.26Given that the authors’ rights under the Covenant have not been violated, none of the remedies sought by them should be recommended by the Committee. It would not be appropriate for the Committee to recommend the adult authors’ release, given the risk that they are judged to be for national security, and in the light of the recent appointment of an independent reviewer. If the Committee concludes that Australia has breached particular rights, remedies other than release should be recommended.

Allegations of self-harm

6.27With respect to the allegations of self-harm referred to in para 2.7, on 6 August 2012 the State party informed the Committee that K.N. and S.Y. (authors 11 and 34) had received treatment and support in relation to their physical and mental health issues. The Government of Australia had recently responded to a Commission investigation into the details of the authors. All authors had also undergone mandatory reporting to the Ombudsman regarding their continued immigration detention. The State party endeavours to ensure that all people in immigration detention are provided with an adequate level of support in respect of their mental and physical health needs, accommodated in an environment that helps reduce risks of self-harm, and provided with the support necessary to reduce and manage anxiety resulting from prolonged detention.

Author’s comments on the State party’s observations on the merits

7.1On 23 February 2013, the authors provided comments on the State party’s observations on merits, reiterating prior arguments and adding the following.

Article 9, paragraph 1

7.2The detention of the authors is unlawful. Legality under article 9, paragraph 1, must be interpreted not only with respect to domestic law but also with respect to international law, including the Covenant. Detention on security grounds is unlawful under article 9, paragraph 1, because the domestic procedures for review are manifestly inadequate.

7.3Mandatory detention upon arrival is arbitrary. This is particularly so where the duration of detention between arrival and receipt of the adverse security assessments was so protracted (between 14 months and two years). The State party has not explained the need for this delay.

7.4The State party makes no attempt to demonstrate that it considered alternatives to detention in each individual case, or explain why particular alternatives are unsuitable. It has provided no evidence regarding its efforts to resettle the authors in a third country.

7.5Regarding the unavailability or ineffectiveness of the review of detention, the authors argue that the Inspector-General of Intelligence and Security only enjoys a power of recommendation and cannot provide an effective remedy in the form of a legally enforceable right to have an adverse security assessment overturned.

Article 9, paragraph 2

7.6The detention notice received by the authors upon arrival does not set out why each author is individually considered to be a risk, thus necessitating detention, whether for reasons of identity, security, health or likelihood of absconding. Similarly, the DIAC letters informing authors about the ASIO assessment do not identify the security reasons for their detention. The State party has not provided any evidence that each author in fact received the written detention notice on arrival in Australia, or that every author at Christmas Island was notified in a language he or she could understand.

Article 9, paragraph 4

7.7If the authors’ detention is found by the Committee to be unlawful under article 9, paragraph 1, for not being necessary or proportionate, article 9, paragraph 4, would also be violated, as the Australian courts lack power to review the necessity of detention. As regards High Court review, the Court decides only about 100 cases per year as the highest court of appeal and constitutional review in Australia. It is unrealistic to suggest that judicial review is effectively available to the authors when the case load of the High Court is so small, many thousands of offshore entry persons are detained each year and the jurisdiction of other federal courts is excluded. Furthermore, preparing an application to the High Court requires extensive resources and legal representation which are unavailable to them.

Articles 7 and 10 (para. 1)

7.8Several Australian independent institutions have criticized the inadequacy of the conditions in all immigration detention centres and the impact they have on mental health. The continuing deterioration of the mental health of detainees is evidence that the health measures taken by Australia are insufficient to ensure the detainees’ safety where protracted detention itself is a medically untreatable cause of harm. The following facts affect the determination whether the authors’ detention is inhumane or degrading: (a) the authors are refugees entitled to special protection, where detention should be a last resort and for the shortest possible time; (b) most of the authors were traumatized by the experience of fleeing Sri Lanka; (c) some of the authors have been diagnosed with mental illnesses and cannot be effectively treated so long as they remain in detention; (d) some of the authors are children who are especially vulnerable.

7.9If the Committee is unable to find violations of article 7 because of insufficient evidence, it is still open to the Committee to find a violation of article 10, paragraph 1, because the authors, as a group, have experienced ill-treatment in their circumstances of indefinite detention under adverse physical and health conditions.

Articles 17 (para. 1), 23 (para. 1) and 24 (para. 1)

7.10The unlawful and/or arbitrary detention of the parents constitutes a failure to pay due regard to the best interest of the children, who are then forced to choose between two alternatives, neither of which is in their best interest: separation from their parents or residing in detention with them.

Issues and proceedings before the Committee

Consideration of admissibility

8.1Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not the case is admissible under the Optional Protocol to the Covenant.

8.2The Committee has ascertained, as required under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

8.3The Committee notes the State party’s challenge to the admissibility of the communication on the ground that domestic remedies have not been exhausted. The State party contends that the five authors belonging to the Ocean Viking group, as they are entitled to apply for protection visas, could have sought judicial review before the High Court. However, the Committee considers that the State party has not demonstrated the availability of an effective remedy for the authors’ claims regarding their prolonged and potentially indefinite detention, even if they were not subject to the same indefinite detention regime as the other authors. The State party has not shown that its courts have the authority to make individualized rulings on the justification for each author’s detention during the lengthy proceedings involved. Moreover, the Committee notes that in the High Court’s decision of 5 October 2012 in the M47 case, the High Court upheld the continuing mandatory detention of an Ocean Viking refugee. Accordingly, the Committee concludes that the State party has not demonstrated the existence of effective remedies to be exhausted, and that for these authors the communication is admissible with reference to article 5, paragraph 2 (b), of the Optional Protocol.

8.4All of the other authors who are offshore entry persons and are barred from making visa applications, except two, did not seek judicial review of the decision regarding their detention and the basis for their security assessment. Of these two, one author made an application to the High Court but later discontinued his case, and the application of the second one is still pending. However, the Committee considers that the State party has not demonstrated the availability of an effective remedy for the authors’ claims regarding their detention. The possibility that the State party’s highest court may someday overrule its precedent upholding indefinite detention does not suffice to indicate the present availability of an effective remedy. The State party has not shown that its courts have the authority to make individualized rulings on the justification for each author’s detention. Moreover, it is also relevant for these authors that the decision of the High Court in the M47 case upheld the continuing mandatory detention of the refugee, demonstrating that a successful legal challenge need not lead to release from arbitrary detention. Accordingly, the Committee concludes that the State party has not demonstrated the existence of effective remedies to be exhausted, and that for these other authors the communication is admissible with reference to article 5, paragraph 2 (b), of the Optional Protocol.

8.5The Committee also notes the State party’s argument that the authors’ claim under article 9, paragraph 2, should be declared inadmissible ratione materiae as this provision is limited to the arrest of persons in connection with the commission of criminal offences. However, the Committee considers that the term “arrest” in the context of this provision means the initiation of a deprivation of liberty regardless of whether it occurs in criminal or administrative proceedings and that individuals have a right to notice of reasons for any arrest. Accordingly, the Committee considers that this claim is not inadmissible ratione materiae or on other grounds and should be examined on its merits.

8.6Regarding the claims under articles 7 and/or 10 (para. 1) of the Covenant, the Committee considers that they have been sufficiently substantiated for purposes of admissibility and declares them admissible.

8.7Concerning the claims of authors belonging to the R. family that their detention constitutes a violation of articles 17 (para. 1) and 23 (para. 1), as well as article 24 (para. 1), with respect to their three children, the Committee notes that the family has been given the possibility to stay together, has been provided with special residential housing and that educational, recreational and other programmes, including outside the facility, are provided, in particular to the children. Notwithstanding the difficulties that living in detention entails, the Committee considers that, in the circumstances, the authors’ claims have been insufficiently substantiated and declares them inadmissible under article 2 of the Optional Protocol. As for the claims of S.S. (author 20) under the same articles, given the arrangements made by the State party to facilitate the contacts between S.S. and his wife and child living in the community, the Committee also considers that, in the circumstances, the author’s claims have been insufficiently substantiated for purposes of admissibility.

8.8The Committee accordingly decides that the communication is admissible insofar as it appears to raise issues under articles 7, 9 (paras. 1, 2 and 4) and 10 (para. 1).

Consideration of the merits

9.1The Human Rights Committee has considered the communication in the light of all the information made available to it by the parties, as provided for under article 5, paragraph 1, of the Optional Protocol.

Claims under article 9, paragraph 1

9.2The authors claim that their mandatory detention upon arrival and its continuous and indefinite character for security reasons is unlawful and arbitrary, thus constituting a violation of article 9, paragraph 1, of the Covenant. They claim that their detention is disproportionate to the security risk that they are said to pose and that domestic procedures for its review are manifestly inadequate. The State party argues that the adult authors are unlawful non-citizens who are being detained in application of the Migration Act and the Australian Security Intelligence Organisation Act; that their detention is therefore lawful and constitutionally valid, as previously declared by the High Court; and that it is also a proportionate response to the security risk they have been found to pose.

9.3The Committee recalls that the notion of “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability, and due process of law. Detention in the course of proceedings for the control of immigration is not arbitrary per se, but the detention must be justified as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time. Asylum seekers who unlawfully enter a State party’s territory may be detained for a brief initial period in order to document their entry, record their claims and determine their identity if it is in doubt. To detain them further while their claims are being resolved would be arbitrary absent particular reasons specific to the individual, such as an individualized likelihood of absconding, danger of crimes against others, or risk of acts against national security. The decision must consider relevant factors case-by-case, and not be based on a mandatory rule for a broad category; must take into account less invasive means of achieving the same ends, such as reporting obligations, sureties or other conditions to prevent absconding; and must be subject to periodic re-evaluation and judicial review. The decision must also take into account the needs of children and the mental health condition of those detained. Individuals must not be detained indefinitely on immigration control grounds if the State party is unable to carry out their expulsion.

9.4The Committee observes that the authors have been kept in immigration detention since 2009 or 2010, first under mandatory detention upon arrival and then as a result of adverse security assessments. The basis of detention of the Ocean Viking authors may have changed after the October 2012 decision of the High Court ruled that the ASIO regime was inapplicable, but the other authors remain in indefinite detention on security grounds. Whatever justification there may have been for an initial detention, for instance for purposes of ascertaining identity and other issues, the State party has not, in the Committee’s opinion, demonstrated on an individual basis that their continuous indefinite detention is justified. The State party has not demonstrated that other, less intrusive, measures could not have achieved the same end of compliance with the State party’s need to respond to the security risk that the adult authors are said to represent. Furthermore, the authors have been kept in detention in circumstances where they are not informed of the specific risk attributed to each of them and of the efforts undertaken by the Australian authorities to find solutions which would allow them to obtain their liberty. They are also deprived of legal safeguards allowing them to challenge their indefinite detention. For all these reasons, the Committee concludes that the detention of both groups of authors is arbitrary and contrary to article 9, paragraph 1, of the Covenant. This conclusion extends to the three minor children, as their situation, irrespective of their legal status as lawful non-citizens, cannot be disassociated from that of their parents.

Claims under article 9, paragraph 2

9.5The authors claim that, individually considered, they were not informed by the authorities of the substantive reasons for their detention, neither upon arrival nor after the assessment made by ASIO. The State party argues that, upon arrival, most of the authors were provided with a detention notice explaining that they were suspected of being unlawful non-citizens and that later on each of them were informed of the ASIO security assessment by letter. The Committee first observes that article 9, paragraph 2, requires that anyone who is arrested be informed, at the time of arrest, of the reasons for the arrest, and that this requirement is not limited to arrest in connection with criminal charges. The Committee considers that, as far as their initial detention is concerned, the information provided to the authors is sufficient to meet the requirements of article 9, paragraph 2. For those authors who later received an adverse security assessment, this assessment represented a subsequent phase in their migration processing, and did not amount to a new arrest implicating article 9, paragraph 2, but rather must be considered in relation to article 9, paragraph 1. However, for the five authors in the Ocean Viking group, a prior security assessment provided the basis for their initial detention. In this regard the Committee considers that one major purpose of requiring that all arrested persons be informed of the reasons for the arrest is to enable them to seek release if they believe that the reasons given are invalid or unfounded; and that the reasons must include not only the general basis of the arrest, but enough factual specifics to indicate the substance of the complaint. Given the vague and too general justification provided by the State party as to the reasons for not providing the authors with specific information about the basis for the negative security assessments, the Committee concludes that, for these five authors, there has been a violation of article 9, paragraph 2, of the Covenant.

Claims under article 9, paragraph 4

9.6Regarding the offshore entry authors’ claim that their detention cannot be challenged under Australian law and that no court has jurisdiction to assess the substantive necessity of their detention, the Committee notes the State party’s argument that the authors can seek judicial review before the High Court of the legality of their detention and the adverse security assessment. In view of the High Court’s 2004 precedent in Al-Kateb v. Godwin declaring the lawfulness of indefinite immigration detention, and the absence of relevant precedents in the State party’s response showing the effectiveness of an application before the High Court in similar situations, the Committee is not convinced that it is open to the High Court to review the justification of the authors’ detention in substantive terms. Furthermore, the Committee notes that in the High Court’s decision in the M47 case, the Court upheld the continuing mandatory detention of the refugee, demonstrating that a successful legal challenge need not lead to release from arbitrary detention. The Committee recalls its jurisprudence that judicial review of the lawfulness of detention under article 9, paragraph 4, is not limited to mere compliance of the detention with domestic law but must include the possibility to order release if the detention is incompatible with the requirements of the Covenant, in particular those of article 9, paragraph 1. Accordingly, the Committee considers that the facts in the present case involve a violation of article 9, paragraph 4.

9.7Regarding the Ocean Viking authors, the High Court’s decision of 5 October 2012 in the M47 case made it clear that judicial review before the High Court did provide a means for challenging the legality of detention on the basis of ASIO security assessments regardless of the individual facts. Nonetheless, the High Court’s decision demonstrates that successful claimants would be remitted to the mandatory detention regime pending the resolution of their applications for a protection visa. The Committee therefore concludes that, during the relevant period, the Ocean Viking authors have also been subject to violations of article 9, paragraph 4.

Claims under articles 7 and 10 (para. 1)

9.8The Committee takes note of the authors’ claims under articles 7 and 10 (para. 1) and the information submitted by the State party in this regard, including on the health-care and mental support services provided to persons in immigration detention. The Committee considers, however, that these services do not take away the force of the uncontested allegations regarding the negative impact that prolonged indefinite detention on grounds that the person cannot even be apprised of can have on the mental health of detainees. These allegations are confirmed by medical reports concerning some of the authors. The Committee considers that the combination of the arbitrary character of the authors’ detention, its protracted and/or indefinite duration, the refusal to provide information and procedural rights to the authors and the difficult conditions of detention are cumulatively inflicting serious psychological harm upon them, and constitute treatment contrary to article 7 of the Covenant. In the light of this finding, the Committee will not examine the same claims under article 10, paragraph 1, of the Covenant.

10.The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the State party has violated the authors’ rights under articles 7 and 9 (paras. 1 and 4) of the Covenant. The State party has also violated article 9, paragraph 2, with respect to five authors.

11.In accordance with article 2, paragraph 3(a), of the Covenant, the State party is under an obligation to provide the authors with an effective remedy, including release under individually appropriate conditions, rehabilitation and appropriate compensation. The State party is also under an obligation to take steps to prevent similar violations in the future. In this connection, the State party should review its migration legislation to ensure its conformity with the requirements of articles 7 and 9(paras. 1, 2 and 4) of the Covenant.

12.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views, and to have them widely disseminated in the State party.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.]

Appendices

Appendix I

[English only]

Names of authors and places of detention

Mr. F.K.A.G. (Scherger IDC)

Mr. T.A. (Scherger IDC)

Mr. S.B. (Villawood IDC)

Mr. V.E. (Christmas Island IDC)

Mr. S.G. (Scherger IDC)

Mr. S.G. (Northern IDC at Darwin)

Mr. T.K. (Christmas Island IDC)

Mr. S.K. (Villawood IDC, Blaxland)

Mr. S.M. (Villawood IDC)

Mr. N.M. (Northern IDC at Darwin)

Mr. K.N. (Maribyrnong IDC)

Mr. J.P. (Curtin IDC)

Ms. S.R. (Villawood IDC)

Master A.R. (Villawood IDC)

Miss A.R. (Villawood IDC)

Master V.R. (Villawood IDC)

Mr. Y.R. (Villawood IDC)

Mr. R.R. (Scherger IDC)

Mr. K.S. (Curtin IDC)

Mr. S.S. (Villawood IDC, Fowler)

Mr. D.S. (Maribyrnong IDC)

Mr. S.S. (Maribyrnong IDC)

Mr. N.S. (Villawood IDC, Fowler)

Mr. M.S. (Villawood IDC, Fowler)

Mr. N.S. (Villawood IDC)

Mr. N.S. (Villawood IDC, Fowler)

Mr. K.S. (Villawood IDC, Blaxland)

Mr. T.S. (Villawood IDC, Fowler)

Mr. P.S. (Villawood IDC, Fowler)

Mr. K.T. (Maribyrnong IDC)

Mr. S.T. (Villawood IDC, Blaxland)

Mr. M.T. (Scherger IDC)

Mr. V.V. (Scherger IDC)

Mr. S.Y. (Maribyrnong IDC)

Mr. S.S. (Curtin IDC)

Mr. S.B. (Scherger IDC)

Mr. S.S. (Northern IDC at Darwin)

Appendix II

Individual opinion by Committee member, Sir Nigel Rodley

I refer to my separate opinion in C . v . Australia. I consider the finding of a violation of article 9, paragraph 4, circular and superfluous, since the lack of legal safeguards to challenge the detention is part of and arguably central to the above finding of a violation of article 9, paragraph 1. I also remain unconvinced that the protection of article 9, paragraph 4, requiring the ability to challenge the lawfulness of a detention extends far beyond, if at all, a challenge to lawfulness under national law. Unlawfulness under international law is precisely the province of article 9, paragraph 1.

[Done in English. Subsequently to be issued also in Arabic, Chinese, French, Russian and Spanish, as part of the Committee’s annual report to the General Assembly.]