Violations: ICCPR art 7, ICCPR art 9(4), ICCPR art 9(1)
The State Party is under an obligation to provide all authors with an effective remedy, including release under individually appropriate conditions for those authors still in detention, 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(1) and (4) of the Covenant.
The nine authors of this communication, which is similar to the contemporaneous case of FKAG et al v Australia, comprise six Tamils, including one child, who fled the conflict in Sri Lanka in 2009 or shortly thereafter, plus two Burmese Rohingyas and a Kuwaiti Bedouin man. 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 periods of detention ranging from 13 and 24 months, they were denied visas to leave detention because Australia’s domestic spy agency, ASIO, determined 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 authors requested Interim Views, but the Committee declined to intervene. The HRC did, however, meet a request for expedited consideration of the communication on account of pressing mental health concerns. Shortly before the Committee reached its Final Views, Ms MJ and her six-year-old son, who was showing signs of depression, were released from detention because ‘a further security assessment [had] yielded new information’.
As in FKAG et al, the authors sought immediate release, apology and compensation, but also far-reaching legal reforms relating to Australia’s treatment of immigration detainees.
The HRC found violations of articles 7 (inhuman and degrading treatment) and 9(1) (arbitrary detention) and 9(4) (habeas corpus) for all authors. It recommended the authors still in detention be released and that they all be given ‘rehabilitation and appropriate compensation’. As regards non-repetition, Australia ‘should review its migration legislation to ensure its conformity with the requirements of articles 7 and 9 of the Covenant’.
In 2014, seven of the nine authors of this communication remained in detention. According to their lawyer, Ben Saul, Australia was 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.’
In May 2017, Australia reported to the HRC that the remaining 7 authors had since been released. None is known to have received rehabilitation or compensation, thus the case is partially remedied.
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For source details, see Remedy Australia's 2014 Follow-up Report (PDF 1.3Mb).