A Cambodian man known as ‘A’ arrived in Australia by boat in 1989 with his wife and children. The family was detained for more than four years until the success of Mrs A’s refugee claim. The HRC found that Australia’s system of ‘indefinite and prolonged’ mandatory detention constitutes arbitrary detention. The family’s right to have their detention reviewed by a court, and their right to an effective remedy, were also violated. Australia rejected the Committee’s interpretation of the ICCPR and refused to compensate the A family
Read more on A v Australia.
An Iraqi-Kurd asylum seeker and his infant son were detained and his refugee claim was rejected. The HRC requested a stay of deportation; Australia complied. The HRC found the Babans’ detention was arbitrary and not subject to judicial review, and recommended compensation. They have not been compensated.
Read more on Baban v Australia.
A family of Hazara asylum seekers claiming to be from Afghanistan was detained on arrival in Australia. Australia determined that the Bakhtiyaris’ claim to be from Afghanistan was not credible; doubt about their origins undermined their refugee claim. The HRC requested a stay of deportation. In its Final Views, the HRC decided that the long-term detention of the family was arbitrary, beyond judicial review, and had not been ‘guided by the best interests of the children’. Further potential violations were found. It proposed that Australia should pay appropriate compensation for these violations. Australia deported the family to Pakistan in 2004, without compensation.
Read more on Bakhtiyari & Bakhtiyari v Australia.
‘C’ was detained on arrival in Australia in 1992 and accepted as a refugee in 1995. He acquired serious mental illness in detention, and his threatening behaviour while in a delusional state led to his being sentenced to 3½ years’ gaol. With psychiatric care, he made ‘dramatic’ improvement and was deemed no longer dangerous. However, as a non-citizen with a custodial sentence exceeding 12 months, he was slated for deportation. The HRC accepted that detention had been the cause of mental illness in this man with no psychiatric history, that his mental illness was the ‘direct cause’ of his offending and that, with appropriate medical care, he was unlikely to re-offend. As well as being arbitrary and lacking judicial review, his detention became ‘cruel, inhuman or degrading treatment’ once it was evident that it was causing his deteriorating mental health. To deport Mr C would also breach article 7. The Committee recommended compensation. Mr C ultimately obtained a visa to remain in Australia, in accord with Committee Views, but he has not been compensated.
Read more on C v Australia.
Ke Chun Rong was a Falun Gong leader in his village when the spiritual movement was banned in China in 1999. Thousands of practitioners were gaoled, interned or committed to psychiatric hospitals. When Mr Ke organised a protest, he was detained for 16 days and tortured to extract the names of other Falun Gong practitioners. Mr Ke escaped to Australia where he applied for asylum. Australia did ‘not dispute that Falun Gong practitioners in China have been subjected to torture’, but did not believe Mr Ke was a Falun Gong practitioner or that he was ‘detained or mistreated’ as he claimed. The Committee Against Torture found that Australia had ‘failed to duly verify the complainant’s allegations and evidence through … effective, independent and impartial review’, and that Australia would breach article 3 if it deported Mr Ke to China. Mr Ke has since been allowed to apply for a visa under Australia’s complementary protection provisions, which protect people facing breaches of CAT and the ICCPR that fall outside the Refugee Convention.
Read more on Chun Rong v Australia.
A make-up artist known as D, having participated in the production of pornography in Iran, suffered a beating and short imprisonment. Her husband, E, was also ‘repeatedly arrested and questioned regarding his wife’. They fled Iran with their children, and were detained on arrival in Australia. While Australia accepted that D faced the death penalty in Iran because of her activities, it did not accept that her claim fell under the Refugee Convention. The HRC requested a halt to the family’s deportation; Australia complied. The Committee found the family’s detention of more than 3 years was arbitrary and that Australia should provide an effective remedy, including compensation. The family was eventually granted humanitarian visas to remain in Australia, but has not been paid compensation.
Read more on D & E and their two children v Australia.
Mr Dewage was a union organiser and active member of an opposition party in Sri Lanka. He suffered threats, harassment and assault from members of governing and rival parties and was also ill-treated by members of the LTTE. After he escaped to Australia, ‘thugs’ broke into his house and his mother’s house looking for him, injuring his mother and threatening to kill his family. His wife fled and has not been heard from since.
Australia rejected Mr Dewage’s refugee claim and detained him pending deportation. He petitioned CAT, which issued interim views requesting he not be deported while it considered his communication. The Committee concluded that Mr Dewage faced a ‘foreseeable, real and personal risk of being subjected to torture by Government officials if returned to Sri Lanka’ and that Australia must therefore ‘refrain from forcibly returning [him] to Sri Lanka or to any other country where he runs a real risk of being expelled or returned to Sri Lanka.’
Read more on Dewage v Australia.
A Somali man from a persecuted ethnic minority claimed asylum because he feared torture by the Hawiye clan, but his claim was rejected by Australia. Somalia was then a ‘failed state’. The Committee Against Torture found that, in the absence of a conventional government, the dominant Hawiye clan was exercising quasi-governmental control and the threat of torture by this clan could, under these circumstances, fall under the Torture Convention. Therefore, Australia would violate CAT if it deported Mr Elmi ‘to Somalia or to any other country where he runs a risk of being expelled or returned to Somalia.’ Australia allowed Mr Elmi to submit a fresh refugee application which also failed. After more than 3 years in detention, Elmi ‘chose’ to leave Australia, ‘heading in the general direction of Somalia.’ His destination and fate are unknown. CAT considers the case closed. Remedy Australia questions the voluntariness of Mr Elmi’s departure from Australia when his choices appeared to be to end his prolonged detention by agreeing to leave, or else endure indefinite detention until forced deportation.
Read more on Elmi v Australia.
Five authors, refugees from Iran, Sri Lanka and Afghanistan, were detained on arrival by boat in Australian territorial waters. They were assessed by Australian authorities as refugees, but also deemed a security threat. The basis of their security assessment was kept secret, meaning the authors were unable to challenge the merits of the assessment nor the justification of their detention.
The Committee accepted that their detention was arbitrary (art 9(1)), lacking periodic re-evaluation and judicial review (art 9(4)) and that the arbitrary and indefinite nature of their detention, as well as the conditions of their detention, inflicted “serious, irreversible psychological harm” (art 7). It recommended rehabilitation and compensation for the authors and non-repetition measures.
Read more on FJ et al v Australia.
Thirty-six Tamils, including 3 children, plus a Rohingya man from Burma, applied for asylum in Australia and were detained. They were later accepted by Australia as refugees, but were not released from detention because ASIO determined that they represented an undisclosed security risk. The HRC issued repeated requests concerning the authors’ mental health, which led to no discernible improvement in their conditions. The HRC found the authors had suffered inhuman and degrading treatment, arbitrary detention, denial of habeas corpus and, for 5 of the authors, a denial of the right to be informed of the reasons for one’s arrest. It recommended the authors be released, given rehabilitation and compensation. Further, Australia ‘should review its migration legislation’ to respect the prohibitions on inhuman and degrading treatment and arbitrary detention. Thirty-two of the 37 authors remain in immigration detention. (The children and their parents were released in 2013).
Read more on FKAG et al v Australia.
Ms Kwok fled China when her husband was arrested for corruption offences. He was later sentenced to death. She was wanted for alleged involvement in the ‘same set of circumstances’. China sought her forced repatriation without launching formal extradition proceedings, and Australia was willing to comply. Ms Kwok claimed she would not receive a fair trial in China and could also be sentenced to death. The HRC requested a stay of deportation; Australia complied. The HRC found that Australia should not deport Ms Kwok, as the risk to her life ‘would only be definitively established when it is too late’. It found potential violations of the right to life and the prohibition on torture. It also found that Ms Kwok’s 6½ years in immigration detention was arbitrary detention. Australia should not send Ms Kwok to China ‘without adequate assurances’ from the People’s Republic, and should compensate her for ‘the length of detention to which [she] was subjected’. Ms Kwok was not refouled, but neither has she been compensated.
Read more on Kwok v Australia.
The 9 authors of this communication – 6 Tamils, including one child, who fled the conflict in Sri Lanka in 2009 or shortly thereafter, plus 2 Burmese and a Kuwaiti man – arrived in Australia and were detained. All were accepted by Australia as refugees. However, they were not released from detention because ASIO determined they were an undisclosed security risk. The HRC found the authors suffered inhuman and degrading treatment, arbitrary detention and denial of habeas corpus, recommending they all be released, rehabilitated and compensated. Further, Australia ‘should review its migration legislation to ensure its conformity with the requirements of articles 7 and 9 of the Covenant’. Seven of the 9 authors remain in detention; none has been compensated or provided with rehabilitation services.
Read more on MMM et al v Australia.
A young Bangladeshi man fled his homeland fearing reprisals from a banned political party. Having been left at an orphanage as a child, Mr Shafiq has no identity papers; Bangladesh has no record of him and denies he is a citizen, rendering him stateless. Australia detained him on his arrival in 1999 and, disbelieving his refugee claim, tried unsuccessfully to deport him. Mr Shafiq, possibly Australia’s longest-serving detainee, became mentally ill in detention and acquired diabetes from a psychiatric medication he was given, rendering him insulin-dependent. The HRC found his detention was arbitrary and that he had been denied habeas corpus. It recommended he be released and compensated. After 7½ years in detention, Mr Shafiq was released, but he remains on a temporary visa under threat of deportation and has not been compensated.
Read more on Shafiq v Australia.
Eight unrelated young men from Iran, fearing persecution for a range of reasons, arrived in Australia and were detained. Each submitted a communication to the HRC, containing similar allegations concerning their treatment in detention and their fear of refoulement. Australia responded to all 8 cases together, and the HRC did the same, hence 8 independent communications became Shams et al. The Committee found that all had suffered arbitrary detention in excess of four years, had been denied habeas corpus and the right to remedy and that each should be compensated. Seven were ultimately found by Australia to be refugees, while the 8th was given a humanitarian visa. They have not been compensated.
Read more on Shams et al v Australia.
Indonesians Hendrick Winata and So Lan Li arrived in Australia in the 1980s and overstayed their visas, undetected. They had a son, who obtained Australian citizenship on his 10th birthday. The next day, his parents applied for refugee status. Their application was rejected and Immigration ordered their deportation. The HRC found that to deport Mr Winata and Ms Li would arbitrarily interfere with their family and breach Australia’s obligation to protect families and children. Australia rejected the Committee’s Views, but did not deport Mr Winata and Ms Li, who eventually obtained permanent residency in Australia.
Read more on Winata & Li v Australia.