Violations: ICCPR art 7, ICCPR art 9(4), ICCPR art 9(1), ICCPR art 9(2)
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, paragraphs 1, 2, and 4 of the Covenant.
The 37 authors of this communication – decided by the HRC a day after the similar case of MMM et al v Australia – comprised 36 Sri Lankan Tamils, including three children, one of them born in immigration detention, plus a Burmese man of the Rohingya ethnic minority. They arrived in Australia by boat in 2009 and 2010 and were detained for lack of an entry visa. All were accepted by Australia as refugees.
After between 14 and 24 months in detention, all the adults were denied visas to leave detention because Australia’s domestic spy agency, ASIO, determined that they represented an undisclosed security risk. Not knowing why they were deemed a threat, the authors could neither challenge the facts or evidence contributing to the assessments, nor identify any errors of law.
The three children were free to leave, but their parents chose to keep them in detention rather than be separated from them. Allegations concerning the rights of the children and non-interference in the family were dismissed by the Committee.
The fact of the authors’ arbitrary and indefinite detention, as well as the conditions of their detention, was causing the authors ‘serious, irreversible psychological harm’ and a number of them were suicidal. The conditions of their detention included:
"inadequate physical and mental health services; exposure to unrest and violence and punitive legal treatment; risk of excessive use of force by the authorities; and witnessing or fearing incidents of suicide or self-harm by others."
The authors sought immediate release, apology and compensation, but also far-reaching legal reforms relating to Australia’s treatment of immigration detainees.
The Human Rights Committee issued repeated interim requests concerning the authors’ mental health, which led to no discernible improvement in their conditions. In its Final Views, the HRC found violations of articles 7 (inhuman and degrading treatment) and 9(1) (arbitrary detention) and 9(4) (habeas corpus) for all 37 authors, plus a violation of article 9(2) (the right to be informed of the reasons for one’s arrest) for five of the authors. It recommended the authors be released ‘under individually appropriate conditions’ and given ‘rehabilitation and appropriate compensation’. Regarding non-repetition, Australia ‘should review its migration legislation to ensure its conformity with the requirements of articles 7 and 9, paragraphs 1, 2, and 4 of the Covenant’ (that is, the prohibitions on inhuman and degrading treatment and arbitrary detention).
In 2014, 32 of the 37 authors of FKAG et al remain in immigration detention. (The Tamil family of two adults and three children were released in 2013). According to their lawyer, Ben Saul, Australia is overdue in responding to the HRC’s Final Views and ‘none of the Committee’s recommendations has thus far been acted upon by the government.’
As a current and continuing gross violation of human rights, Remedy Australia considers the FKAG et al case to warrant the most urgent and concerted follow-up.
Act on the FKAG case now: Sign this super-quick letter to key government ministers.
For source details, see Remedy Australia's 2014 Follow-up Report (PDF 1.3Mb).
Read Australia's response to the Committee's final views (December 2014, PDF 3Mb)
Read the FKAG authors' response (March 2015, PDF 112Kb)