22 August 2013
Australia’s indefinite detention of 46 recognized refugees on security grounds amounted to cruel, inhuman and degrading treatment, inflicting serious psychological harm on them, a United Nations Committee has found after examining their cases.
The Geneva-based Human Rights Committee said Australia should release the refugees, who have been held for at least two and a half years, and offer them compensation and rehabilitation.
The refugees -- 42 Tamils from Sri Lanka, three Rohingya from Myanmar and a Kuwaiti -- brought their complaints to Human Rights Committee, arguing that they were unable to challenge the legality of their detention in the Australian courts.
They had been recognized as refugees who could not be returned to their home countries but were refused visas to stay in Australia because they were deemed to pose a security risk, and so were held in immigration detention facilities.
The Committee, composed of 18 independent human rights experts, found that the refugees’ detention was arbitrary and violated Article 9 of the International Covenant on Civil and Political Rights (ICCPR)*, which states that no one shall be subjected to arbitrary arrest or detention. The Committee reached its conclusion based principally on the fact that the refugees were not told the reasons for the negative security assessment and so were unable to mount a legal challenge to their indefinite detention.
“The combination of the arbitrary character of (their) detention, its protracted and/or indefinite duration, the refusal to provide information and procedural rights to (them) and the difficult conditions of detention are cumulatively inflicting serious psychological harm upon them,” the Committee members wrote in their conclusions adopted on 25 July and made public on Thursday.
This constituted treatment contrary to Article 7 of the ICCPR, under which “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,” they added.
The Human Rights Committee said that Australia is obliged, under Article 2 of the Covenant, to provide all 46 refugees with effective remedy. This includes releasing them under individually appropriate conditions, and offering them rehabilitation and appropriate compensation.
Australia is also under an obligation to take steps to prevent similar violations in the future, the Human Rights Committee concluded.
The Human Rights Committee monitors implementation of the ICCPR by States parties. It considered this case under the First Optional Protocol to the Covenant which gives the Committee competence to examine individual complaints.
Most of the refugees arrived in Australian territorial waters between March 2009 and December 2010 and were first disembarked at Christmas Island. Five were rescued at sea and initially disembarked in Indonesia before arriving at Christmas Island. At the time of their submission to the Committee, they were being held at several detention centres, including Scherger Immigration Detention Centre in Queensland; Villawood Immigration Residential Housing in Sydney; Melbourne Immigration Transit Accommodation; Darwin Immigration Centre; Maribyrnong Immigration Detention Centre in Victoria and Christmas Island.
In their complaints, lodged in 2011 and 2012, the refugees argued that, as they were not informed of the reasons for their security assessment, they were unable to identify any possible legal errors which could allow them to apply for a judicial review in the Australian courts.
The Australian authorities argued that all the claims were inadmissible. They also said solutions were being explored, including resettlement or the safe return to the refugees’ countries of origin if the risk of harm no longer existed. However, it was not appropriate for individuals with an adverse security assessment to live in the Australian community while solutions were sought. Providing people with the classified details would also undermine the security assessment process and compromise Australia’s security.
Since the complaints were lodged, seven of the refugees -- a mother and her son, who was born in 2007, and a family of five -- have now been granted visas and released from immigration detention into the Australian community.
*The International Covenant on Civil and Political Rights (ICCPR):
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