F.K.A.G. et al. v Australia, UN Doc CCPR/C/108/D/2094/2011 (23 August 2013)
The UN Human Rights Committee found that Australia violated articles 7 and 9(1), (2) and (4) of the International Covenant on Civil and Political Rights by indefinitely detaining refugees subject to adverse security assessments without adequate reasons, review rights or individualised consideration of less intrusive options.
The authors were a group of 46 refugees who have been indefinitely detained in immigration detention on security grounds for up to four years.
31 of the authors, including two children, were apprehended and disembarked at Christmas Island. Under the Migration Act 1958 (Cth), they were classified as “unlawful non-citizens” in an “excised offshore place” and detained in immigration detention. They were subsequently assessed as being refugees.
Five of the authors had been rescued by an Australian customs vessel, Oceanic Viking, and flown to Australia on “special purpose visas” that expired on arrival. They then became “unlawful non-citizens” in the “migration zone” who did not enter at an “excised offshore place”. They applied for protection visas and were placed in immigration detention. They were later recognised as refugees and applied for permanent protection in Australia.
All children were granted protection visas and all adults were refused visas following adverse security assessments made by the Australian Security Intelligence Organisation (ASIO). They have since been kept in immigration detention, ostensibly for their removal but that has not been practicable due to their genuine fears of persecution if returned.
The authors have no statutory right to seek binding merits review of the negative security assessment, yet it underpins their ongoing and indefinite liberty deprivation.
There was concern as to the deteriorating physical and mental health of the authors while in detention, including evidence of self-harm and attempted suicide.
Article 9(1): no one shall be subjected to arbitrary detention
The authors submitted that Australia did not provide any lawful, individualised justification for detaining them upon their arrival as they were detained automatically under a statutory framework that does not permit making an individual assessment. The authors further argued that the Executive’s assertion that a security risk is posed cannot satisfy the requirements of article 9 as the basis of the security assessment is secret, rendering it impossible to evaluate and denying the authors due process.
Australia submitted that the authors are lawfully detained under the Migration Act and that the length and conditions of detention are regularly reviewed. ASIO has individually assessed each adult author and determined that granting visas would be a security risk. Australia further submitted that providing people with classified details underpinning their adverse assessments would undermine the process and compromise Australia’s national security. Further, decisions made under the ASIO Act may be subject to judicial review and review by the Inspector-General of Intelligence and Security (IGIS).
In response to the state party’s submissions, the authors said that the legality of their detention must be interpreted according to both domestic and international law and that detention on security grounds is unlawful due to the manifest inadequacy of domestic procedures for review. Though the security assessments may be reviewed by IGIS, that review does not provide a legally enforceable right to have the assessment overturned. The authors submitted that they continue to be indefinitely detained on the basis of a secretive decision they cannot meaningfully and effectively challenge.
In the Committee’s view, “arbitrariness” must be interpreted broadly to include elements of inappropriateness, lack of predictability and due process of law. Detention in the course of immigration proceedings is not per se arbitrary and asylum seekers may be detained for a brief initial period in order to document their entry, record their claims and determine their identity. To detain them further while their claims are being resolved would be arbitrary absent particular reasons specific to the individual.
A decision to detain must consider factors case-by-case, not be based on a mandatory rule. It must take into account the needs of children and individual mental health needs. It must consider less intrusive alternatives.
The Committee found that Australia had not demonstrated on an individual basis that continuous, indefinite detention is justified or that less intrusive measures could not achieve the same end of responding to an alleged security risk.
Article 9(2): anyone who is arrested shall be informed, at the time of arrest, of the reasons for their arrest
The authors complained that they had not been informed of the substantive reasons for their detention. Australia submitted that each of the authors was given information explaining the reasons for their detention at the time they entered it.
The Committee observed that a major purpose of requiring reasons on arrest is to enable the arrested person to seek release if they believe the reasons given are invalid or unfounded. They Committee considered that the information provided to the authors concerning their initial detention on arrival was sufficient. Although the basis of their detention changed once they had been negatively assessed by ASIO, this did not constitute a fresh “arrest” for the purposes of Article 9(2).
However, this was not the case for the Oceanic Viking authors, whose initial detention on arrival in Australia was based on the security assessment which was not adequately explained to them.
The Committee found that Australia provided insufficient detail to the authors form the Oceanic Viking as to the basis of their security assessments and, therefore, the basis of their detention, in violation of article 9(2).
Article 9(4): anyone who is deprived of their liberty shall be entitled to take proceedings before a court
The authors argued that their detention could not be challenged under Australian law, with the Migration Act requiring their mandatory detention and not providing for individualised assessments.
Australia argued that the authors could seek judicial review of the legality of their detention and security assessment, including seeking access to information, subject to a successful claim for public interest immunity.
Given that Al-Kateb v Godwin (2004) 219 CLR 562 upheld the constitutional validity of indefinite immigration detention in Australia, the Committee was not convinced that the High Court could review the justification of the authors’ detention in substantive terms. Further, Plaintiff M47/2012 v Director General of Security and Ors  HCA 46 demonstrates that a successful legal challenge would not necessarily lead to release of any author from arbitrary detention.
The Committee also observed that lawfulness of detention is not limited to mere compliance with domestic law but must include the possibility of obtaining orders for release if the detention is incompatible with the requirements of the Covenant.
For these reasons, the Committee found that Australia has contravened article 9(4).
Articles 7 and 10(1): no one shall be subject to cruel, inhumane or degrading treatment and all persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person
The authors submitted that the arbitrary character, protracted duration and difficult conditions of detention are causing them serious and irreversible psychological harm.
Australia submitted in response that the system of immigration detention and the treatment of the authors in detention do not give rise to severe physical or mental suffering of the degree required to constitute treatment contrary to articles 7 and 10(1). Australia said that all persons in detention are subject to regular placement review, that detention conditions are adequate and subject to continual improvement and individuals in detention have opportunities to participate in recreational activities.
The Committee found that the healthcare and mental support services provided to the authors do not prevent the significant deleterious impact that prolonged, indefinite detention on the basis of untested allegations can have on a person’s physical and mental health.
The Committee found that:
…the combination of the arbitrary character of the authors’ detention, its protracted and/or indefinite duration, the refusal to provide information and procedural rights to the authors and the difficult conditions of detention are cumulatively inflicting serious psychological harm upon them, and constitute treatment contrary to article 7 of the Covenant.
The Committee did not consider it necessary to deal with the complaint under article 10(1).
The Committee directed Australia to provide the authors with an effective remedy, including release under individually appropriate conditions, rehabilitation and compensation. Australia is also obliged to take steps to prevent similar violations in the future and should review its migration legislation to ensure conformity with articles 7 and 9 of the Covenant.
The Committee’s decision is clear condemnation of Australia’s appalling treatment of refugees subject to adverse security assessments.
The authors have spent years deprived of their liberty on the basis of a decision that is never adequately explained to them and which they cannot meaningfully challenge.
It’s worth noting that others who are subject to negative security assessments by ASIO are able to seek binding merits review through the Security Appeals Division of the Administrative Appeals Tribunal. However, asylum seekers cannot. Despite ASIO assessments being of greater consequence to asylum seekers (i.e. it may form the basis for their indefinite detention) Australian law as it stands affords them inferior review rights.
A previous legal challenge to the lawfulness of the indefinite detention of refugees on security grounds settled only days before the scheduled High Court hearing. However, there is currently a High Court case on foot in which some of these issues may be revisited.
The decision is available online at: http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/AUS/CCPR_C_108_D_2094_2011_20720_E.pdf
Georgia Drake is a lawyer at Arnold Bloch Leibler.