FJ et al v Australia (HRC, 2016)

Violations: ICCPR art 7, ICCPR art 9(4), ICCPR art 9(1)

Remedy's assessment: Unremedied

The UN says:

[Australia] is under an obligation to provide the authors with an effective remedy . . . to make full reparation . . . inter alia, to provide the authors with rehabilitation and adequate compensation. . . [and] take steps to prevent similar violations in the future . . . revis[ing] its migration legislation to ensure conformity with the requirements of articles 7 and 9(1) and (4) of the Covenant.

HRC (2016)

The authors are 5 refugees – an Iranian, 3 Tamils and a Hazara from Afghanistan – who were aged in their early 30s when they reached Australia by boat without entry visas and were detained in immigration detention centres on the Australian mainland or Christmas Island (which is Australian territory some 1,550km north-west of the mainland).

They were assessed by Australian authorities as refugees, but deemed a security threat by Australia’s domestic spy agency ASIO. As such, their detention continued, pending deportation.

Their security assessment was kept secret from the authors, meaning they were unable to challenge the merits of the assessment nor the justification of their detention.

The Committee accepted the authors’ evidence, as confirmed by medical reports, that the arbitrary and indefinite nature of their detention, as well as the conditions of their detention, inflicted “serious, irreversible psychological harm” in breach of art 7. The conditions they faced in detention included “inadequate physical and mental health services; exposure to unrest and violence and punitive legal treatment; the risk of excessive use of force by the authorities; and the witnessing or fear of incidents of suicide or self-harm by others” (para. 3.14). One of the authors attempted to harm himself. There was no effective means available to challenge their detention nor remedy the conditions of their detention (para. 9.3).

Over a period of 12 months in 2014-15, while their communication was under consideration by the Committee, the authors were released. Their total length of detention ranged from more than 3 years to more than 5 years.

The Committee noted that while this form of administrative detention is lawful in Australia, it is nonetheless arbitrary in the sense of being inappropriate, unjust, lacking predictability and due process of law. As a recurrent and grave rights abuse in Australia, affecting “thousands” of people every year (para. 7.7), it is worth quoting the HRC on arbitrary detention at length:
“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 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. The inability of a State party to carry out the expulsion of an individual does not justify indefinite detention.”

Further, judicial review of detention must be able to assess that detention for compatibility with the ICCPR and order release where incompatible (para 10.5).

The Committee found Australia in breach of articles 7, 9(1) and 9(4) for each of the authors.

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