The UN Human Rights Committee has found that Australia’s indefinite detention of 46 recognised refugees (42 Tamils from Sri Lanka, three Rohingya from Myanmar and a Kuwaiti) held in immigration detention for over two and a half years on ‘security grounds’ was inflicting serious psychological harm and amounted to cruel, inhuman and degrading treatment contrary to article 7 of the ICCPR. Professor Ben Saul advocated for the refugees’ immediate release in light of escalating health risks, including lack of access to appropriate psychiatric treatment and suicide attempts.
The Committee found that Australia’s immigration framework violates the ICCPR as it does not make individual security assessments of refugees. Although initial detention may be justified to record the identities of refugees and their claims for asylum, indefinite detention should only be considered where continuing detention of a particular refugee is justified and necessary (eg. where there is a real danger of crimes against others if a person is not detained).
Under the current statutory framework, a negative security assessment means a recognised refugee can be held indefinitely, without knowing any details of why they are deemed a security threat. The Committee found that Australia’s failure to provide reasons for the negative security assessments prevented the refugees from appealing their detention through Australian courts, amounting to arbitrary detention in violation of article 9 of the ICCPR.
The Committee has urged Australia to release the refugees and provide adequate compensation and rehabilitation for the distress and suffering caused, in compliance with article 2 of the ICCPR.
Professor Saul has called the findings a major embarrassment in the largest complaint ever made against Australia to the Committee. Seven of the refugees who filed complaints have since been released, but between 40 and 60 people are still in indefinite detention and most of them have been held for about four years. A separate complaint involving five more refugees has been made to the Committee and is yet to be decided.