Violations: ICCPR art 9(1), ICCPR art 9(4), ICCPR art 24(1)
[Australia] is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, [Australia] is obligated, inter alia, to provide the authors with adequate compensation.
[Australia] is also under an obligation to take steps to prevent similar violations in the future. In this connection, [Australia] should review its migration legislation and policies to ensure their conformity with the requirements of articles 9 and 24 of the Covenant.
Eleven unaccompanied children arrived in Australia seeking asylum between July and November 2013 and were detained on Christmas Island, which is Australian territory about about 1,550 km northwest of the Australian mainland (and 350km from Indonesia).
In accordance with the Australian Migration Act and policies in place at the time, they were at risk of being transferred to the tiny Pacific island nation of Nauru while their refugee claims were assessed. They claimed that the threat of transfer to Nauru amounted to non-refoulement under article 7 of the International Covenant on Civil and Political Rights (ICCPR) which prohibits inhuman or degrading treatment, and, further, that the conditions of their potential detention in Nauru would breach articles 7, 10, 9 (1) and (4), 17, 23 and 24.
The authors requested interim measures to prevent them being deported or transferred out of Australia while their UN communication was being assessed, but the Committee declined.
In 2014, the Australian Government announced that all unauthorised migrants who had arrived by sea between 19 July and 31 December 2013 and had not yet been transferred to a third country to have their refugee claims assessed would not be so transferred. As a result, the UN Committee found this part of the communication to be inadmissible.
The authors also claimed that the facilities and services available to them while detained on Christmas Island were inadequate and contrary to articles 7 and 10 (prohibition of torture and the right of all persons deprived of liberty to be treated with humanity), article 17 (right to privacy) and article 23 (protection of the family). The Committee held that this part of the communication was inadmissible for being insufficiently substantiated.
The authors further claimed that they had been arbitrarily detained on Christmas Island for an excessive period of time (over a year), amounting to a breach of article 9(1) (prohibition of arbitrary detention), article 9(4) (entitlement to court proceedings to challenge one's detention) as well as article 24 (protection of children).
The Committee found Australia had breached Articles 9(1) and 24 by detaining unaccompanied minors. The Committee held that children should not be deprived of liberty, except as a measure of last resort and for the shortest appropriate period of time, taking into account their best interests. Australia had not demonstrated that the authors’ detention was justified for such an extended period of time, nor had it demonstrated that less intrusive measures could not have achieved the same objective.
Australia argued that the authors could have challenged the legality of their detention by judicial review, yet they did not. The Committee concluded that even if the authors were successful in a legal challenge, this would not necessarily have led to their release from arbitrary detention. The Committee also found that the courts did not have the authority to make individual rulings on each author’s detention. Therefore, a breach of Article 9(4) was found.
Between December 2014 and February 2015, all minors detained on Christmas Island, including the 11 authors, were moved to the Australian mainland and put in group housing. One of the authors, B.A.A., was not allowed to reside with his brother (who had arrived a year earlier) on Australia’s mainland, allegedly in violation of articles 17, 23 and 24, but the Committee failed to find a breach of these rights.
The Committee held that Australia must provide an effective remedy and report back in 180 days. Australia does not appear to have responded to the Committee’s findings, nor to have provided the recommended remedy to the authors.