Casenote: FKAG v Australia and MMM v Australia

F.K.A.G. et al. v Australia (UN Doc CCPR/C/108/D/2094/2011) and M.M.M. et al. v Australia (UN Doc CCPR/C/108/D/2136/2012) 20 August 2013

Summary

The UN Human Rights Committee has found that the indefinite detention of 46 refugees with adverse security assessments was arbitrary and amounted to cruel, inhuman or degrading treatment under the International Covenant on Civil and Political Rights (ICCPR).

Facts

In August 2011 and February 2012, 46 refugees lodged complaints with the UN Human Rights Committee alleging that their indefinite detention violated articles 9(1), 9(2), 9(4), 7, 10(1), 17(1), 23(1) and 24(1) of the ICCPR.

The refugees had been refused permanent protection in Australia as a result of receiving adverse security assessments by the Australian Security and Intelligence Organisation.^[1]These individuals could not return to their country of origin as they had been found to have a well-founded fear of persecution. Government policy required that they remain in immigration detention facilities unless and until a third country agreed to resettle them. The chances of third country resettlement for a refugee with an adverse security assessment were unlikely. As a result these individuals faced indefinite detention.

Decision

Arbitrary interference with the family/rights of the child

The Committee found that the complaints of some of the authors in relation to arbitrary interference with family and the rights of child to be inadmissible. The Committee was of the view that the authors’ claims on these grounds were insufficiently substantiated.

Arbitrary detention

Article 9(1) of the ICCPR provides that no one shall be subject to arbitrary arrest or detention.

The Committee reiterated its previous jurisprudence that, in order to avoid being arbitrary, detention ‘must be justified as reasonable, necessary and proportionate in light of the circumstances and reassessed as it extends in time.’ It stated that:

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...

The Committee found that the detention of the authors was arbitrary in breach of article 9(1) of the ICCPR as the Australian Government:

• had not demonstrated on an individual basis that their continued detention was justified;
• had failed to demonstrated that less intrusive measures could not have achieved the same end as detention (in terms of addressing the security risks the authors were said to represent);
• had not informed the authors of the specific risk they allegedly posed and the efforts undertaken by the authorities to find solutions to allow them to be released from closed detention; and
• had deprived the authors of the legal safeguards to allow them to challenge their indefinite detention.

Article 9(2)

Article 9(2) of the ICCPR requires that a person who is arrested be provided with reasons for their arrest. The Australian Government had submitted that article 9(2) was not applicable as the provision is limited to the arrest of persons in connection with the commission of criminal offences. The Committee rejected this submission, interpreting the term ‘arrest’ in article 9(2) to mean ‘the initiation of a deprivation of liberty regardless of whether it occurs in criminal or administrative proceedings’.

Five of the authors of one of the complaints to the Committee had been transferred to Australia on a special purpose visa, after being rescued at sea by the Australian customs vessel the Oceanic Viking. These individuals were advised at the time of their initial detention that they would not be granted a permanent visa as they did not meet security requirements, and would be detained while resettlement solutions were explored.

The Committee noted that the purpose of requiring that all arrested persons be given reasons for their arrest (including ‘factual specifics’) is to enable those persons to seek release if they are of the view that those reasons are invalid or unfounded.

The Committee was not satisfied with the ‘vague and too general’ justification given by the Australian Government for not providing the five authors with specific information about the basis for their adverse assessment. Accordingly, it concluded that the Australian Government had breached article 9(2).

The rest of the authors had arrived in Australia as unlawful non-citizens and were provided a detention notice explaining that they were suspected of being unlawful non-citizens. They received an adverse security assessment at a later stage in their detention. The Committee found that, in terms of their initial arrest, the detention notices issued were sufficient to meet the requirements of article 9(2). The Committee held that the subsequent receiving of an adverse assessment did not amount to a new arrest which would enliven the requirement in article 9(2).

Article 9(4)

Article 9(4) provides that any person deprived of their liberty should be able to challenge the lawfulness of their detention in a court. The Committee recalled its jurisprudence 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 paragraph 1.

The Committee observed that judicial review of immigration detention decisions by Australian courts was limited to the question whether detention was lawful in accordance with domestic law, not whether it was in accordance with article 9(1) of the ICCPR (including whether it was arbitrary). The Committee concluded that this inability of Australian courts performing judicial review to order release if a person’s detention was inconsistent with article 9(1) of the ICCPR meant that article 9(4) of the ICCPR had also been breached.

Article 7

Article 7 of the ICCPR provides that no one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.

The authors submitted that their indefinite detention had breached this prohibition, relying upon medical reports and, inter alia, reports produced by the Australian Human Rights Commission regarding the conditions in immigration detention facilities in Australia.

The Committee recognised ‘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.’ It found 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.

The Committee concluded that, as it had found breaches of article 7, it did not need to examine the same claims under article 10(1).

Remedy

The Committee recommended that the Australian Government provide the authors with an effective remedy including the release of the authors under individually appropriate conditions, rehabilitation and appropriate compensation. The Committee requested that the Australian government provide a response about the measures taken to effect to the Committee’s views in 180 days.

Current situation facing refugees with an adverse security assessment

There are currently around 50 refugees with adverse security assessments facing indefinite detention in Australian detention facilities. There are also five young children in detention who are living with their parents who have received an adverse assessment. Some of these individuals have been detained for over four years.

For several years the Commission has raised concern about the lack of transparency and of the ASIO security assessment process and has welcomed the appointment of an Independent Reviewer of Adverse Security Assessments.

The Commission has also repeatedly urged the Australian Government to consider and utilise alternatives to indefinite detention in closed immigration detention facilities while durable solutions are explored.

In 2012 the Commission published a Report of an inquiry into complaints by Sri Lankan refugees in immigration detention with adverse security assessments. ^[2] In this report the Commission found that the failure of the Commonwealth to conduct an individualised assessment of whether each individual could be placed in less restrictive forms of detention was in breach of the prohibition against arbitrary detention in article 9(1) of the ICCPR. The Commission made a number of recommendations including that the Commonwealth pursue alternatives such as community detention or bridging visas. Conditions could include a requirement to reside at a specified location, curfews, travel restrictions, regular reporting and possibly even electronic monitoring.

^[1] For further information about refugees with adverse security assessments see the Commission’s factsheet Tell Me About: Refugees with Adverse Security Assessments (2013), available at http://www.humanrights.gov.au/publications/tell-me-about-refugees-adverse-security-assessments.

^[2] Australian Human Rights Commission report, Sri Lankan refugees v Commonwealth of Australia (Department of Immigration & Citizenship) (2012) AusHRC 56 http://www.humanrights.gov.au/publications/aushrc-56-sri-lankan-refugees-v-commonwealth-australia-department-immigration