The UN Human Rights Committee (the ‘Committee’) has ruled Australia’s indefinite detention of refugees on grounds of secret security is arbitrary and illegal. The ruling is part of 51 cases currently before the Committee.
The complaint was brought by an Iranian, three Sri Lankan Tamil and an Afghani national who were collectively detained between 2009 and 2015. Each were detained initially following their illegal entry into Australia and thereafter following an “adverse security assessment” by the Australian Security Intelligence Organisation (ASIO) against each of them. The complainants were recognised as refugees for whom “return to their countries of origin was unsafe”, however visas were denied on grounds of security. The complainants argued they were unable to challenge the merits of their security assessment and no domestic remedy existed which enabled them to challenge the substantive basis for their detention.
The Committee found that the detention was illegal and breached the detainee’s rights to liberty. Despite being permissible under Australian law, indefinite administrative detention is incompatible with the State’s treaty obligations under the International Covenant on Civil and Political Rights (ICCPR). The Committee noted that a detention may be authorised by domestic law and nonetheless be arbitrary. The notion of arbitrariness should not 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 light of the circumstances and reassessed as it extends in time. The Committee found that Australia had not demonstrated on an individual basis that the continuous indefinite detention in each case was justified. Further, that the State party had 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 complainants were said to represent.
Furthermore, the Committee found that the indefinite detention amounted to “cruel, inhuman or degrading treatment”, noting the inadequate conditions in which the refugees had been arbitrarily held. The Committee rejected Australia’s argument that satisfactory healthcare had been provided to the detainees, noting the grave psychological harm inflicted by the fact of indefinite imprisonment under secret grounds.
In addition to the obligation for provision of rehabilitation and adequate compensation, the Committee has held that Australia must “take steps to prevent similar violations in the future”.
To read a copy of the Committee’s decision please click here.
For further commentary on the decision please click here.