Non-reviewable immigration detention on secret grounds is “arbitrary” in breach of ICCPR

Summary

An Iraqi asylum-seeker was detained in Bosnia and Herzegovina on the grounds that he was a threat to national security. The United Nations Human Rights Committee found that his prolonged detention was arbitrary in breach of article 9 of the International Covenant on Civil and Political Rights, because the State party did not show it was necessary and proportionate, and because he was not provided with the reasons that he was considered a threat and was therefore unable to effectively challenge the detention.

The Committee also found that asylum-seeker’s expulsion and separation from his family in these circumstances would interfere with his family life in violation of articles 17 and 23.

Facts

Mr Al-Gertani is a Sunni Iraqi, who deserted from the Iraqi army when Iraq occupied Kuwait in 1991. Following his desertion, he went into hiding, and was sentenced to death in absentia. His brother was also punished. Mr Al-Gertani travelled to various countries, and ultimately arrived in Bosnia and Herzegovina in 1995 using a forged Yemeni passport under a false name.  He subsequently married a woman from Bosnia and Herzegovina, with whom he had three children, and was later granted Bosnia and Herzegovina citizenship under the false identity.  

In 2003, Mr Al-Gertani claimed he reported his true identity to the authorities. His Bosnia and Herzegovina citizenship was revoked in 2007, and in 2009, he was placed in an Immigration Centre in Sarajevo on the basis that he was a threat to the legal system, public order, peace and security of Bosnia and Herzegovina, and that there was a reasonable doubt about his identity. Mr Al-Gertani claimed asylum because he feared being killed or tortured if returned to Iraq given his ethnic origin and that he had been sentenced to the death penalty.

His request for international protection was dismissed in the Bosnian and Herzegovina Courts, in part because he was considered to pose a threat to the State’s security, and because it was not considered that he would face a real risk of harm if returned to Iraq. He was issued with an expulsion order.

Mr Al-Gertani complained to the United Nations Human Rights Committee that his deportation to Iraq by the State would constitute a violation of his rights under the International Covenant on Civil and Political Rights because:

  • the authorities did not adequately assess the risk to which he would be subject if returned to Iraq in violation of his right to life and to not be subject to torture (articles 6 and 7);
  • his expulsion after being denied protection on the grounds of national security, without being informed why he was considered a threat, violated the procedural safeguards with regard to expulsions and fair hearing rights (articles 13, 14, 2 and 3); and
  • his inevitable separation from his family because they could not follow him to a foreign country in civil war was an arbitrary and unlawful interference with his privacy and family life (articles 17, 23).

At a later stage, Mr Al-Gertani also argued that his prolonged detention was arbitrary and a violation of article 9.

Decision

Admissibility

The Committee considered that Mr Al-Gertani had not sufficiently substantiated his claims that the State had failed to take into account certain matters when assessing his risk on return, and that the secrecy in relation to security matters had undermined his right to an effective remedy.  His claims under articles 6, 7, 13 and 14 were therefore inadmissible. The Committee went on to consider his claims relating to his detention, and family and private life.

Merits

The Committee noted that the notion of “arbitrariness” under article 9 included elements of inappropriateness, injustice, lack of predictability and due process of law. While not per se arbitrary, immigration detention must be the least intrusive measure available and subject to periodic re-evaluation. Any individual arrested must be informed of the reasons for arrest.

The Committee found that Mr Al-Gertani’s immigration detention breached:

  • Article 9(1), because although State information could have justified the original arrest and detention, the State failed to justify the necessity of continued and prolonged detention since 2009, and to demonstrate that other, less intrusive measures could not have achieved the same end;
  • Article 9(2), because Mr Al-Gertani was not given sufficient information to allow him to understand the substance of why he was considered a threat to security, which undermined his right to seek release before a court;
  • Article 9(4), because the domestic courts had no access to the information about the grounds on which the negative security assessment had been based, and therefore the courts’ review of the lawfulness of Mr Al-Gertani’s detention was not commensurate with the required standard of review.

The lack of clear explanation from Bosnia and Herzegovina about why Mr Al-Gertani was a threat to security led the Committee to conclude that the State had failed to show that the interference with his family life caused by his deportation was justified by serious and objective reasons. The Committee therefore found that Mr Al-Gertani’s removal to Iraq by the State would breach articles 17 and 23 of the ICCPR.

Commentary

The serious human rights implications of prolonged immigration detention on secret, non-reviewable security grounds are well-known to Australia. Mr Al-Gertani’s situation was similar to the plight of 46 refugees indefinitely detained in Australia after receiving an adverse ASIO security assessment, who were the subject of a Human Rights Committee decision in August 2013. The individuals were not informed of the substantive evidence or reasons that underpinned the security assessments, and were unable to seek effective review of the assessments that formed the basis for their ongoing immigration detention. Applying very similar reasoning to this case, the Committee found Australia in violation of multiple rights under the ICCPR due to its failure to provide the refugees with adequate reasons, review rights, or individualised consideration of less intrusive options.

Despite this human rights violation, the Australian Government has not taken any further steps to remedy these breaches. Instead, the Government has introduced a Bill which will give increased legal prominence to non-reviewable ASIO Security Assessments, by making a protection visa contingent upon a security clearance. You can access the HRLC’s media release about this Bill here and its submission to the Senate Committee reviewing the Bill here.

This decision is available online at http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/BIH/CCPR_C_109_D_1955_2010_21348_E.doc

Louise Brown is a lawyer at King & Wood Mallesons, and is currently on secondment to the Human Rights Law Centre.