Eleven children arrived in Australia as unaccompanied minors claiming asylum and were detained on Christmas Island. Over a year later, Australia moved them to the mainland and put them in group housing. Of multiple alleged breaches of the ICCPR, the Human Rights Committee found Australia in violation of articles 9(1), 9(4) and 24.
Read more on A.K. et al. 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.
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.
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. As at May 2017, two of the 37 authors remained in immigration detention. (The children and their parents were released in 2013).
Read more on FKAG et al v Australia.
A Tamil survivor of torture arrived in Australia by boat in 2012 and applied for refugee protection. In the 6 years he spent in Australia appealling the initial rejection of his refugee claim, Mr Gnaneswaran married and had a child. His wife and Australian-born daughter were granted visas. Australia gave Mr Gnaneswaran 3 days’ notice of his forcible deportation, in which time he lodged a communication to the UN Human Rights Committee. The Committee responded the next day, asking Australia not to deport him while his case was before the Committee. But he was deported the same day to Sri Lanka, where he was arrested, interrogated and brought to court. The Committee found a breach of article 17, read in conjunction with article 23(1) of the ICCPR, concerning the protection of the family from arbitrary interference.
Read more on Gnaneswaran v Australia.
Mr H.K., a Pakistani national, was arbitrarily detained and mistreated by armed government agents – including 3 days of severe beatings and sleep deprivation – escaped to Australia where immigration authorities accepted these events took place, but did not accept that he faced a well-founded fear of torture if he returned to Pakistan, and so refused his refugee claim.
The Committee found his fears were well founded and that Australia would violate article 3 (non-refoulement) if it deported him to Pakistan. Australia disagreed with the Committee’s conclusions and said Mr H.K. would be “subject to Australia’s domestic migration processes”.
Read more on H.K. 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.
Mr M.K.M. claimed refugee status on arrival in Australia based on undisputed facts of his arbitrary detention and torture in Afghanistan by the Taliban (a non-state actor), who also brutally executed his father and another detainee in front of him. Australia rejected his claim, arguing the Taliban had not targetted him due to his ethnicity or religion, and also refused his claim for ‘complementary protection’ from torture (outside of the 5 grounds enumerated in the Refugee Convention).
The Committee Against Torture held that deporting him to Afghanistan would amount to refoulement in violation of article 3, and recommended Australia not deport him to Afghanistan “or to any other country where he runs a real risk of being expelled or returned to Afghanistan.” Australia complied with the Committee’s interim measures request, but entirely rejected the Committee’s final views.
Read more on M.K.M. 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’. All 9 authors have reportedly been released; none is known to have been compensated nor provided with rehabilitation services.
Read more on MMM et al v Australia.
Mr Madafferi, an Italian in Australia, overstayed his tourist visa. He came to the attention of Australian authorities when he was sentenced by an Italian court in absentia. In the meantime, he had married an Australian and fathered Australian children, but his application for a spouse visa was refused on character grounds and he was detained, pending deportation. Mr Madafferi developed a ‘stress disorder’ in detention and was admitted to a psychiatric hospital for 6 months. The HRC requested a stay of deportation, which was initially refused. The Committee found that conditions in immigration detention were inhuman, and that there would be arbitrary interference with the family, in conjunction with treaty provisions protecting the family and children, if Mr Madafferi were deported. In 2005, his deportation order was overturned ‘on humanitarian grounds’. The HRC has deemed Australia’s response satisfactory.
Read more on Madafferi & Madafferi v Australia.
Stefan Nystrom was born in Sweden and entered Australia when only 27 days old. His family assumed he was a naturalised Australian. Mr Nystrom began hearing voices in childhood and has suffered psychiatric symptoms throughout his life. From the age of ten, he began offending, usually under the influence of alcohol. At the age of 30, seven years after his last offence, during which time he had been law-abiding, steadily employed and recovering from his alcoholism, Mr Nystrom’s permanent visa was cancelled on character grounds. An appeal to the Federal Court found him to be ‘an absorbed member of the Australian community with no relevant ties elsewhere’. The Immigration Minister appealed successfully to the High Court. Mr Nystrom was deported to Sweden in 2009 and has since been homeless, in homeless shelters, in prison and in psychiatric care. The HRC found Mr Nystrom’s deportation constituted arbitrary interference with his right to family and his ‘right to enter his own country’, which is Australia. Further, his expulsion was arbitrary – occurring so long after his offending. He should be permitted and materially assisted to return to Australia. Australia has refused to allow Mr Nystrom back into Australia, but says it has made policy reforms to guard against repetition.
Read more on Nystrom v Australia.
As a teenage minor, Mr S.L. was tortured and forcibly recruited by the Liberation Tigers of Tamil Eelam during the civil war in Sri Lanka. He escaped by boat in 2012 and claimed refugee status in Australia, which disbelieved his claims, disallowed new information and evidence as it became available, and denied him legal aid and a protection visa.
The Committee Against Torture found that deporting Mr S.L. would risk refoulement, a breach of CAT article 3. It was critical of Australia's refugee assessment processes and concluded that Australia should reconsider Mr S.L.'s refugee claim and refrain from deporting him while his (fresh) application was considered. But the Committee did not issue interim measures at the outset, asking Australia not to deport him while his communication was before the Committee.
Read more on S.L. v Australia.
A Tamil Sri Lankan recounting years of persecution by soldiers and allied paramilitary gangs, including 6 days of arbitrary detention and torture, fled to Australia where he applied unsuccessfully for refugee protection.
On receipt of his communication, the Committee Against Torture immediately issued interim measures, asking Australia not to deport him while his communication was under consideration. Australia claims the request did not reach the relevant arm of government in time and Mr Thirugananasampanthar was deported the next day, never to be heard from again. The Committee did not agree with Mr Thirugananasampanthar’s claim that he faced refoulement, but did find Australia had not acted in good faith and that deporting him in spite of the interim measure request and before a decision could be reached violated article 22 (which recognises the competence of the Committee to receive communications from individuals).
Read more on Thirugananasampanthar v Australia.