Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2365/2014 * , **

Communication submitted by:A.K. et al. (represented by counsel, Katherine Wrigley, of the Refugee Advice and Casework Service)

Alleged victims:The authors

State party:Australia

Date of communication:13 March 2014 (initial submission)

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 21 March 2014 (not issued in document form)

Date of adoption of Views:8 July 2021

Subject matter:Detention of minors in immigration facilities

Procedural issues :Lack of substantiation

Substantive issues:Cruel, inhuman or degrading treatment or punishment; liberty and security of person; human dignity; children’s rights; right to an effective remedy

Articles of the Covenant :2 (3), 7, 9 (1) and (4), 10, 17, 23 and 24

Articles of the Optional Protocol:2 and 3

1.1TheauthorsofthecommunicationareA.K.,bornon31December1998,A.R.,bornon11February1997,G.Z.,bornon31December1998,B.A.A.,bornon31December1998,E.E.,bornon31December1997,H.M.,bornon31December1996,S.H.,bornon31December1997andK.M.,bornon25April1999,allnationalsofAfghanistan,A.Z.,bornon12February1997,S.M.,bornon1June1996,H.I.,bornon31December1994andA.M.,bornon1January1998,allnationalsofPakistan,andD.D.,bornon15February1997,anationalofIraq.In2013,theauthorsarrivedasunaccompaniedminorstoAustraliaandwereplacedinadetentioncentre.Initially,theyclaimedthattheStatepartywouldviolatetheirrightsunderarticle24(1)oftheCovenantintheeventthattheyweretransferredtotheNaururegionalprocessingcentre.Inthesubsequentsubmissionof24March2014,theCommitteewasinformedthattheauthorsalsoclaimedviolationsofarticles2(3),7,9(1)and(4),10,17and23oftheCovenant.On10September2015theauthorssubmittedadditionalclaimsabouttheconditionsoftheirdetentiononthemainlandofAustraliaunderarticles17,23and24oftheCovenant.TheOptionalProtocolenteredintoforceforAustraliaon25December1991.Theauthorsarerepresentedbycounsel,KatherineWrigley,oftheRefugeeAdviceandCaseworkService.

1.2Whensubmittingthecommunication,on13March2014,theauthorsrequestedthat,pursuanttorule94ofitsrulesofprocedure,theCommitteerequesttheStatepartytorefrainfromdeportingortransferringthemfromAustraliawhiletheircasewasbeingconsideredbytheCommittee.On21March2014,theCommittee,actingthroughitsSpecialRapporteuronnewcommunicationsandinterimmeasures,decidednottoaccedetotherequest.

1.3On10September2015,thecounselinformedtheCommitteethattwoauthors,S.H.,bornon31December1997,andK.M.,bornon25April1999,decidedtowithdrawtheircomplaints.

Factual background

2.1Between July and November 2013, the authors arrived in Australia as unaccompanied minors. They were placed in a detention centre on Christmas Island, Australia, for illegal migrants and asylum seekers, pursuant to section 189 (3) of the Migration Act. The parents of the authors either remained in their home countries or were deceased.

2.2Following their arrival and detention on Christmas Island, in accordance with the Australian Migration Act, the authors were at risk of being transferred to Nauru for further processing. The State party’s policy at the time was to detain and subsequently transfer all individuals who had arrived as irregular maritime arrivals to a regional processing country, subject to the availability of vacant accommodation and facilities suitable for the needs of transferred individuals. In March 2014, the authors’ counsel sent letters to the Australian Department of Immigration and Border Protection and to the Minister for Immigration and Border Protection, requesting that the authors be exempted from transfer to Nauru on the ground of their status of unaccompanied minors. Counsel also wrote to the case management authorities on Christmas Island, requesting assurance that some of the minors would not be transferred. The authors did not receive a reply to any of the above letters. They did not seek judicial review of the situation, as they believed that there was no effective judicial remedy available to them to prevent the transfer. Subsequently, the authors’ counsel noted that she was unaware as to whether there had been any remedies capable of preventing the transfer.

2.3In September and December 2014, the Minister for Immigration and Border Protection announced that all unauthorized maritime migrants who had arrived in Australia between 19 July and 31 December 2013 and had not yet been transferred to a regional processing country would not be transferred to offshore processing centres. In December 2014, all minors, including six of the authors, were moved from Christmas Island to the Australian mainland. They were all placed in group housing arrangements. The remaining authors were also relocated to the mainland between December 2014 and February 2015.

2.4A.K. arrived in Christmas Island in August 2013 and spent approximately 15 months in the detention centre there. He was relocated to a community detention centre in Geelong, Victoria. In May 2016, he was in a community detention centre in Queensland. At a later date, A.K. was granted a Bridging visa. He filed an application for a protection visa, but it was refused. A.K. challenged the refusal in courts. As of July 2019, the proceedings on his case were still pending.

2.5A.Z. arrived in Christmas Island in August 2013 and spent approximately 16 months in the detention centre there. He was relocated to a community detention centre in Geelong, Victoria. He was released on an unspecified date upon receipt of a Bridging Visa. A.Z. was living in Victoria and was granted a Safe Haven Enterprise visa on 17 March 2017.

2.6E.E. arrived in Christmas Island in November 2013. He had previously been transferred to a regional processing centre and subsequently returned to the Australian mainland in February 2014. In total, he spent approximately 14 months in the detention centre on Christmas Island. He was then relocated to a community detention centre in Geelong, Victoria. E.E. was released on an unspecified date upon receipt of a Bridging visa. He was living in Victoria and was granted a Safe Haven Enterprise visa on 2 January 2018.

2.7A.R. arrived in Christmas Island in August 2013 and spent approximately 15 months in the detention centre there. On an unspecified date, he was relocated to a community detention centre in Geelong, Victoria. In June 2015, he was transferred to the Maribyrnong Immigration Detention Centre because of behavioural issues. A.R. voluntarily returned to Afghanistan on 19 September 2016.

2.8D.D. arrived in Christmas Island in September 2013 and spent approximately 15 months in the detention centre there. On an unspecified date, he was relocated to a community detention centre in Brisbane, Queensland. When he turned 18, three months after his relocation, D.D. received a Bridging visa and was released from the detention centre. He was living in Sydney, New South Wales. In July 2019, the request of D.D. for a Safe Haven Enterprise visa was still pending

2.9S.M. arrived in Christmas Island in August 2013 and spent approximately 16 months in the detention centre there. In December 2014, S.M. received a Bridging visa and was released. He was living in Melbourne, Victoria, and was granted a Safe Haven Enterprise visa on 5 July 2018.

2.10G.Z. arrived in Christmas Island in August 2013. He had previously been transferred to a regional processing centre. He was subsequently returned to the Australian mainland in December 2013. In total, he spent approximately 15 months in the detention centre on Christmas Island. In January 2015 he received a Bridging visa and was released. G.Z. lived in Adelaide, South Australia. His application for a Safe Haven Enterprise visa was refused. In July 2019, his legal status was under review by the Immigration Assessment Authority.

2.11B.A.A. arrived in Christmas Island in October 2013 and spent approximately 13 months in the detention centre there. He was relocated to a community detention centre in Sydney, New South Wales. On 28 October 2016, the request of B.A.A. for a Safe Haven Enterprise visa was granted. The author has a brother in Australia, who was in a community detention centre on the Australian mainland when B.A.A. arrived. At some point after his arrival, B.A.A. requested to be taken care of by his brother, however, as the latter was a minor at the time, this request was denied.

2.12H.M. and H.I. arrived in Christmas Island in July 2013 and spent approximately 17 and 18 months, respectively, in the detention centre there. In January 2015 they received a Bridging visa and were released. They were living in Melbourne, Victoria. On 6 August 2018, H.I. was granted a Safe Haven Enterprise visa. The request of H.M. for a Safe Haven Enterprise visa was granted on 21 June 2019.

2.13A.M. arrived in Christmas Island in August 2013 and spent approximately 15 months in the detention centre there. He was relocated to a community detention centre in Geelong, Victoria. On 10 March 2017, A.M. was granted a Safe Haven Enterprise visa.

Complaint

3.1At the time of the initial submission, the authors claimed that by transferring them to Nauru the State party would be in violation of its non-refoulement obligations under article 7 of the Covenant. The authors argue that conditions of their detention in Nauru would have been inadequate and contrary to requirements of articles 7, 10, 9 (1) and (4), 17, 23, and 24 of the Covenant. They claim that in Nauru they would have been arbitrarily detained and deprived of necessary educational, medical and social facilities. The authors submit that the State party bears responsibility for these potential violations in case of their transfer.

3.2The authors also claim that they were arbitrarily detained on Christmas Island for an excessive period of time, contrary to requirements of article 9 (1) of the Covenant. They recall the Committee’s jurisprudence and argue that their detention was neither necessary nor proportionate. Furthermore, the authors claim that the State party was in violation of article 9 (4), as they did not have an avenue to challenge their detention.

3.3The authors argue that facilities and services available to them while in detention on Christmas Island were inadequate and contrary to requirements of articles 7, 10, 17, 23 and 24 of the Covenant. They submit that national authorities did not provide them with all necessary facilities and support. Specifically, they argue that they did not have proper access to physical and mental health facilities.

3.4The authors submit that conditions of community detention on the Australian mainland were in breach of articles 17, 23 and 24 of the Covenant. They argue that some of them were separated from other members of their families in Australia. They further specify, that B.A.A. was not allowed to reside with his brother, who had arrived in Australia 12 months earlier and was detained in a community detention centre on the mainland. They further claim that the community detention centre did not provide adequate facilities required by the authors.

3.5The authors refer to article 2 (3) of the Covenant, without making any specific claim. As remedies, they request that he State party acknowledge the violations of the Covenant, apologize to them and provide them with adequate compensation and reparation.

State party’s observations on admissibility and the merits

4.1In a note verbale dated 22 June 2016, the State party submitted its observations on the admissibility and the merits of the present communication.

4.2The State party recalls the facts of the authors’ claims on which the present communication is based and submits that the communication should be declared inadmissible. Should the Committee declare the communication admissible, the State party submits that the authors’ claims are without merit.

4.3The State party submits that the authors’ claims under articles 2 (3),7,9,10,17,23and24 regarding their potential transfer from Christmas Island to Nauru are either inadmissible ratione materiae or not properly substantiated. The State party indicates that claims regarding conditions of living in Nauru are matters for the sovereign Government of this State. Furthermore, there was no intention to transfer the authors to Nauru. The State party argues that, even if there was a decision to transfer the authors, the obligations of non-refoulement under articles 6 and 7 of the Covenant would not be triggered as there is no real risk of irreparable harm. The authors did not provide sufficient details to substantiate possible personal risks they would face in Nauru. They made general and vague claims, without referring to individual circumstances with respect to each author.

4.4The State party further argues that the authors’ claims under 2 (3),7,9,10,17,23and24 of the Covenant concerning their detention on Christmas Island are insufficiently substantiated.

4.5With respect to claims under article 7 of the Covenant, the State party notes that the authors did not provide any evidence to support their claim that conditions of detention on Christmas Island were inadequate. The State party also notes that between 2009 and 2014 individual welfare assistance to unaccompanied minors in immigration detention was provided by private contractors. They supplied appropriate food and clothing and organized programmes and activities. They also assigned an individual officer to each unaccompanied minor; the officers met with their wards regularly and provided individual help. All programmes and trainings were tailored to the individual’s age, gender, religious background and needs. National authorities carefully monitored quality of the services provided by the private companies.

4.6The State party further submits that the authors made only general allegations under article 10 of the Covenant about their conditions of detention on Christmas Island, without providing any evidence or supporting information. The State party contends that all individuals detained in immigration facilities are treated with respect and that conditions of detention are appropriate. Several private contractors ensure the well-being of individuals in detention. They provide communication services (e.g., access to computers, the Internet, television and libraries), educational programmes (including primary and secondary education), mental health enhancement activities, access to religious practice, legal advice, health care and other services. The State party emphasizes that all individuals in detention, and specifically minors, are provided with access to qualified mental health professionals to monitor and avoid any deterioration of their mental state. All individuals entering immigration detention are subject to mental health screening within 72 hours of their arrival. Subsequent medical evaluations take place after 6, 12 and 18 months, and regularly thereafter. Special programmes are introduced for vulnerable individuals (e.g., victims of torture). The State party further notes that while on Christmas Island the authors were housed in alternative places of detention, so-called construction camps. These camps are used to meet the specific needs of individuals that cannot be fulfilled in regular immigration detention centres or in community detention. They include facility-based forms of detention (e.g., immigration residential housing) and specifically designated places in the broader community. The State party further notes that immigration detention is subject to regular review to ensure that detention arrangements remain appropriate. In the light of the abovementioned factors, the State party concludes that the conditions of detention of the authors were adequate and in compliance with requirements of article 10 of the Covenant.

4.7The State party notes that the authors have failed to substantiate their claims under article 9 (1) of the Covenant. They did not submit sufficient evidence to show that their detention was in violation of domestic law or otherwise arbitrary. The State party notes that all of the authors were detained in accordance with procedure provided by the Migration Act. Their detention on Christmas Island was as short as possible. Alternatives measures, length and conditions of detention were subject to regular administrative review. The State party submits that the review of immigration detention (including the review of conditions of detention) is conducted by case managers from the Department of Immigration and Border Protection and by the Commonwealth Ombudsman. The latter has an obligation to investigate a person’s case, after he or she has spent two years in immigration detention. The case managers from the Department perform monthly reviews of individual detention placements, including the lawfulness of such detention. The State party notes that the individual cases of the authors were handled by officers from the Department in full accordance with national law and in the shortest time possible.

4.8The State party notes that the authors’ claims under article 9 (4) of the Covenant are unsubstantiated and, therefore, inadmissible. Referring to the travaux préparatoires to the Covenant, the State party notes that “lawfulness of detention” implies compliance with national law of a State. Broader interpretation, which includes compliance with international law standards, would have undoubtedly been reflected by the drafters. The State party notes that the authors had access to the judicial review of the legality of their detention in accordance with section 256 of the Migration Act and section 75 (iii) of the Australian Constitution.

4.9The State party submits that the authors did not provide any specific information to substantiate their claims under articles 17, 23 and 24 of the Covenant about inadequate conditions on the mainland. Furthermore, as indicated above, all possible measures of protection were provided to the authors in compliance with requirements of the Covenant.

4.10The State party further refers to the situation of B.A.A., who, as claimed by counsel, was separated from his brother, who had arrived in Australia 12 months earlier, in violation of articles 17 and 23 of the Covenant. The State party recalls that B.A.A. was transferred from Christmas Island in December 2014. Initially he was placed in an alternative place of detention for eight days. After that, the author was moved and reunited with his brother in a community detention centre. When the author’s brother turned 18 and was granted a Bridging visa, he was released from the detention centre. B.A.A.’s brother lives close to the detention centre. They have regular phone contact and short-term visits. On several occasions the author was allowed to stay with his brother for short periods of time. By law, in order to assume custodianship from social services, the author’s brother must be 21 years of age. Consequently, there was no violation of B.A.A.’s rights under articles 17 and 23 of the Covenant.

4.11The State party, referring to the author’s claims under article 24 of the Covenant, recalls relevant provisions of domestic law and submits that all of the authors had access to comprehensive social aid while in detention or when released on Bridging visas. Several non-governmental organizations are contracted to provide help and assistance to migrants. Unaccompanied minors are assigned to a custodian. As specified above, individuals in detention centres have access to a wide range of services. Individuals released on Bridging visas receive income and rent support, accommodation assistance, orientation, training and practical information as well as health services. The State party also notes that A.R. was transferred to the Maribyrnong Immigration Detention Centre from a community detention centre as a result of behavioural and criminal problems. His placement in the detention centre is regularly reviewed. At the time of his transfer, the author was considered to be an adult.

4.12With respect to the claims under article 2, the State party reiterates that the authors have failed to substantiate allegations of breaches of any other substantive provisions of the Covenant. The State party further notes that the initial remedy sought by the authors, that is, prohibition of their transfer to Nauru, has already occurred through a change in national policy. All authors are invited to apply for temporary protection or for Safe Haven Enterprise visas in Australia.

Authors’ comments on the State party’s observations on admissibility and the merits

5.1The authors provided their comments on 25 October 2016.

5.2The authors argue that their claims about conditions of detention on Christmas Island and on the mainland, as well as their claims about State party’s non-refoulement obligations, are sufficiently substantial and supported by evidence. They further recall national legislative provisions relevant to the case. The authors submit that the risk of being transferred to a place where their human rights may be violated existed and is still present.

5.3The authors argue that article 7 of the Covenant precludes Australia from transferring them to Nauru where conditions of detention are well documented. There are no sufficient resources and facilities to provide protection and assistance to minors and to meet their needs. The authors refer to the conclusions of the monitoring visit of the Office of the United Nations High Commissioner for Refugees to Nauru,which highlighted the harshness of conditions for child asylum seekers. The risk of transfer has drastic effects on their mental health. They all suffer mental anguish, with some becoming suicidal.

5.4The authors note that their prolonged detention on Christmas Island caused them severe mental suffering. Their detention involved humiliation and debasement. The State party’s submission on conditions of detention on the island are general and do not indicate specific arrangements implemented for the authors. Cultural, education and recreational programmes are insufficient to mitigate effects of poor conditions of detention.

5.5The authors further argue that their extended detention on Christmas Island was in violation of article 10 of the Covenant. They note that unaccompanied minors are extremely vulnerable and require special treatment from national authorities. Migrants frequently come from dangerous environments and often suffer from mental health problems. The authors recall that they did not have access to adequate medical and hygienic facilities and lacked appropriate clothing. The State party did not explain how the authors personally benefited from the programmes and services available on Christmas Island.

5.6The authors argue that their detention was arbitrary, in violation of article 9 (1) and (4) of the Covenant. They note that there were less restrictive means to achieve compliance with national immigration laws, rather than detaining the authors on Christmas Island for such a long period of time. While their detention could have been in compliance with national law, it was not necessary or proportionate. The authors argue that any detention in excess of six months is prima facie arbitrary. By April 2014, the authors had been detained on Christmas Island for five to eight months, an extended period of detention that was not duly assessed. The authors note that the State party does not demonstrate individual grounds for their detention. Furthermore, the authors lacked a proper avenue for the review of their detention. The authors were unable to challenge the lawfulness of their detention before Australian courts. Even if they had had access to a judicial review, it would have been ineffective as it would not have been possible to order their release on the grounds of a violation of provisions of the Covenant.

5.7The authors reiterate their claims under articles 17, 23 and 24 of the Covenant. They indicate that some of them had family members living in different parts of Australia. Contrary to the requirements of article 17 of the Covenant, the authors were separated from their families. Furthermore, the separation of B.A.A. from his brother was arbitrary. Phone calls and short-term visits were insufficient to comply with international standards. Moreover, the return of A.R. to a detention centre was inappropriate given the need to address his mental problems and needs. The authors reiterate that alleged violations of substantive provisions of the Covenant are sufficiently substantiated. The State party has violated article 2 of the Covenant. The authors are still vulnerable and require protection from possible transfer to a regional processing centre.

5.8Finally, the authors provided medical documents, personal statements and other information.

State party’s additional comments

6.1In a note verbale dated 31 July 2019, the State party submitted additional information to the Committee. It submits that the comments of the authors of 25October2016have not provided information to substantiate their claims. The authors rely on vague and generalized assertions, without any reference to specific facts and circumstances. The State party therefore reiterates the general positions expressed in its observations of 22 June 2016. Furthermore, the State party provided an update on the authors’ legal status. This information has been included as part of the factual background information of the present Views.

6.2The State party notes that six of the authors have been granted Safe Haven Enterprise visas and that four of them hold Bridging visas. One author has voluntarily returned to Afghanistan. There are no plans to transfer any of the authors to a regional processing centre.

6.3The State party notes that the authors have indicated that facilities available on the Christmas Island were inadequate and the conditions of their detention were not properly assessed. However, they did not provide any specific facts and evidence to support these claims. The State party argues that the authors have tried to shift the burden of proof onto the Government by requesting it to disprove unsubstantiated assertions.

6.4With respect to the authors’ claims about violations that occurred in the Australian mainland, the State party recalls its previous submissions and notes that neither of these claims is supported by evidence.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

7.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

7.3The Committee notes the authors’ claim that they have exhausted all available domestic remedies. The Committee also notes the State party’s argument with respect to claims under article 9 of the Covenant that the authors had access to the judicial review of the legality of their detention in accordance with the Migration Act and the Australian Constitution. However, the Committee considers that the State party has not demonstrated the availability of this remedy for the authors nor has it shown that its courts have the authority to make individualized rulings on the justification for each author’s detention. In the absence of objections by the State party in that connection with respect to the remaining claims of the authors, the Committee considers that the requirements of article 5 (2) (b) of the Optional Protocol have been met.

7.4As to the State party’s argument that the authors’ claims about their potential transfer to Nauru under article 7, as well as articles 9 (1) and (4), 10, 17, 23, and 24 of the Covenant should be declared inadmissible owing to insufficient substantiation, the Committee notes that as of late 2014 the State party had no intention of transferring the authors to Nauru or any other offshore facility. In these circumstances, the Committee considers that the authors have not sufficiently substantiated their claims and therefore declares this part of the communication inadmissible pursuant to article 2 of the Optional Protocol.

7.5The Committee notes the authors’ claims that conditions of their detention on Christmas Island and on the Australian mainland were inadequate contrary to requirements of articles 7, 10, 17, and 23 of the Covenant. The Committee observes that the authors made only general statements in support of their claims. The Committee considers, consequently, that the authors have not sufficiently substantiated their claims for purposes of admissibility, and that this part of the communication must therefore be declared inadmissible in accordance with article 2 of the Optional Protocol.

7.6The Committee notes, with respect to the authors’ claims under articles 17, 23 and 24 of the Covenant, that while some of them have been separated from their relatives living on the Australian mainland, it has only been provided with explanation of the family situation of B.A.A. The Committee considers that the claims of B.A.A. have been sufficiently substantiated for purposes of admissibility and declares them admissible. Similar claims brought on behalf of the remaining authors have been insufficiently substantiated for purposes of admissibility and must therefore be declared inadmissible in accordance with article 2 of the Optional Protocol.

7.7With regard to the authors’ claims under article 2 (3) of the Covenant, the Committee recalls its jurisprudence to the effect that the provisions of article 2 of the Covenant set forth a general obligation for States parties and cannot give rise, when invoked separately, to a claim in a communication under the Optional Protocol. Consequently, the Committee declares this part of the communication to be inadmissible under article 3 of the Optional Protocol.

7.8Regarding the claims under articles 9 (1) and (4) and 24 of the Covenant about the authors’ detention on Christmas Island, the Committee considers that they have been sufficiently substantiated for purposes of admissibility and declares them admissible.

7.9The Committee accordingly decides that the communication is admissible insofar as it appears to raise issues about detention on Christmas Island under articles 9 (1) and (4), and 24 of the Covenant with respect to all authors and under articles 17, 23 and 24 of the Covenant with respect to B.A.A.

Consideration of the merits

8.1The Committee has considered the communication in the light of all the information made available to it by the parties, as required under article 5 (1) of the Optional Protocol.

8.2The Committee notes the claim of B.A.A. that he was not allowed to reside with his brother, who had arrived in Australia 12 months earlier before him, in violation of articles 17, 23 and 24 of the Covenant. The Committee recalls that, in accordance with the submissions of the parties, the author arrived in Christmas Island in October 2013. At that time his brother was in a community detention centre on the mainland. On an unspecified date, the author requested to be transferred under his brother’s care, but, as the latter was a minor at the time, the request was denied. In December 2014, the author was transferred from Christmas Island and initially was placed in an alternative place of detention for eight days. After that, the author was moved and reunited with his brother in a community detention centre. On an unspecified date, the author’s brother, upon turning 18, was released from the detention centre and was granted a Bridging visa. While staying on Christmas Island, B.A.A. had regular phone contacts with his brother who had been living close to the detention centre. He also had short-term visits with him. The Committee notes the State party’s argument, that it was not possible to transfer guardianship over B.A.A. to his brother while the latter was still a minor. After the author’s brother turned 18, the national authorities decided that it was in B.A.A.’s best interests that he remain in a community detention centre as his brother was unable to provide all required services and appropriate living conditions. At the same time, the national authorities attempted to facilitate family contacts to the possible extent. The Committee recognizes that there were reasonable grounds not to transfer guardianship over B.A.A. to his brother. The author does not provide any evidence or arguments to substantiate that his brother was in a position to provide him with required assistance and caretaking. In addition, the Committee takes note of that fact that the author did not specify at what exact point in time after his arrival he had requested to be placed under the care of his brother. In the light of these circumstances, and having noted the efforts undertaken by the national authorities to establish and maintain personal contacts between B.A.A. and his brother, the Committee cannot conclude that the State party’s authorities have not acted with the best interests of the author in mind nor that they have violated their duties under articles 17, 23 and 24 of the Covenant.

8.3With regard to articles 9 (1) and 24 of the Covenant, the Committee notes the authors’ allegation that their immigration detention on Christmas Island was arbitrary and unreasonably prolonged, and that conditions of detention and facilities on Christmas Island were inadequate for their needs. The Committee notes the State party’s argument that the authors’ detention occurred in accordance with procedures established by the Migration Act; their detention was as short as possible and regularly reviewed on an individual basis.

8.4The Committee further notes that the authors do not argue that detention on Christmas Island was unlawful under Australian law. At the same time, 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 detention must be justified as being reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time. 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.

8.5In addition, the Committee recalls its general comment No. 35, in which it stated that childrenshould not be deprived of liberty, except as a measure of last resort and for the shortest appropriate period of time, taking into account their best interests as a primary consideration with regard to the duration and conditions of detention, and also taking into account the extreme vulnerability and need for care of unaccompanied minors. The Committee recalls that the authors arrived on Christmas Island on different dates between July and November 2013 as unaccompanied minors. In accordance with the national policy at the time, they were all placed in immigration detention. They spent between 13 and 18 months in immigration detention before being transferred to community detention centres on the Australian mainland. The Committee considers that the State party has not demonstrated on an individual basis that the authors’ continuous and protracted detention was justified for such an extended period of time. The State party has also not demonstrated that other less intrusive measures could not have achieved the same end of compliance with the State party’s need to ensure that the authors would be available for removal. Specifically, it has not been shown that the authors, who were minors at the time, could not have been transferred earlier to community detention centres, which are more tailored to meet the specific needs of vulnerable individuals. For all these reasons, the Committee concludes that placing the authors, as unaccompanied minors, in immigration detention was arbitrary and contrary to article 9 (1) and to article 24 of the Covenant.

8.6The Committee also notes the authors’ claims that they did not have any effective domestic remedy to challenge the legality of their detention before domestic courts contrary to requirements of article 9 (4) of the Covenant. The Committee considers the State party’s argument that the authors had access to a judicial review of the legality of their detention in accordance with domestic law. At the same time, the State party argues that a review of “lawfulness of detention”, within the meaning of article 9 (4) of the Covenant, implies only compliance with the national law of a State.

8.7The Committee recalls that judicial review of the lawfulness of detention under article 9 (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 (1). The Committee further notes its previous jurisprudence concerning review of detention of non-citizens without valid entry documentation in Australia. In particular, it previously established that the scope of domestic judicial review of immigration detention was insufficiently broad to examine an individual’s detention in substantive terms. Furthermore, relevant national jurisprudence showed that even a successful legal challenge of detention could not necessarily lead to release from arbitrary detention. The State party has not provided relevant legal precedents showing the effectiveness of an application before the national courts in similar situations. Moreover, it has not demonstrated the availability of this remedy for the authors and has not shown that national courts have the authority to make individualized rulings on the justification for each author’s detention. Therefore, the Committee does not see a ground to depart from its well-established approach and considers that the facts in the present case involve a violation of article 9 (4).

9.The Human Rights Committee, acting under article 5 (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 article 9 (1) and (4) and article 24 of the Covenant.

10.In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to provide the authors with adequate 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 and policies to ensure their conformity with the requirements of articles 9 and 24 of the Covenant.

11.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 and 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 present Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official language of the State party.