Decision; Subjects: AUSTRALIA, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]
Volltext (verifizierbarer Originaltext)
GE.26-00455 (E) 220126 230126
Committee against Torture
Decision adopted by the Committee under article 22
of the Convention, concerning communication
No. 1079/2021*, **, ***
Communication submitted by:
A.A. (represented by counsel, Daniel Taylor)
Alleged victim:
The complainant
State Party:
Australia
Date of complaint:
4 May 2021 (initial submission)
Document references:
Decision taken pursuant to rule 115 of the
Committee’s rules of procedure, transmitted to
the State Party on 6 July 2021 (not issued in
document form)
Date of adoption of decision:
27 November 2025
Subject matter:
Immigration detention in Australia and Papua
New Guinea; transfer of the complainant to a
regional processing country (Nauru)
Procedural issues:
Extraterritorial jurisdiction; level of
substantiation of claims
Substantive issues:
Measures to prevent acts of torture; risk of
torture upon transfer to Nauru
(non-refoulement); cruel, inhuman or degrading
treatment or punishment
Article of the Convention:
2, 3 and 16
1.1
The complainant is A.A., a national of the Islamic Republic of Iran born in 1988. He
claims that the State Party has violated his rights under articles 2, 3 and 16 of the Convention.
The State Party has made the declaration pursuant to article 22 (1) of the Convention,
effective from 28 January 1993. The complainant is represented by counsel.
1.2
On 6 July 2021, the Committee, acting through its Rapporteur on new complaints and
interim measures, decided not to issue a request for interim measures under rule 114 of the
Committee’s rules of procedure.
* Adopted by the Committee at its eighty-third session (10–28 November 2025).
** The following members of the Committee participated in the examination of the communication:
Todd Buchwald, Jorge Contesse, Claude Heller, Erdogan Iscan, Peter Vedel Kessing, Liu Huawen,
Maeda Naoko, Ana Racu, Abderrazak Rouwane and Bakhtiyar Tuzmukhamedov.
*** An individual opinion by Committee member Bakhtiyar Tuzmukhamedov (dissenting) is annexed to
the present decision.
United Nations
CAT/C/83/D/1079/2021
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
23 January 2026
Original: English
CAT/C/83/D/1079/2021
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Factual background
2.1
Between 2008 and 2013, more than 50,000 people travelled unlawfully to Australia
on more than 820 individual boat voyages. During that period, more than 1,200 people
drowned in the attempt to reach Australia on small and often unseaworthy vessels that were
unsuited to long voyages across the open ocean. The Government of Australia introduced
border policies in response to those attempts to travel illegally by boat to Australia.
2.2
As part of those policies, on 13 August 2012, the Prime Minister and the Minister for
Immigration and Citizenship announced the establishment of regional processing
arrangements in Nauru and Papua New Guinea,1 facilitated by amendments to the Migration
Act of 1958. Those amendments provided for the designation of Nauru and Papua New
Guinea as regional processing countries for the taking of any “offshore entry person” (a
designation that was later changed to “unauthorized maritime arrival”) arriving on or after
13 August 2012 to a regional processing country for protection claims assessment. Regional
processing arrangements and the management of individuals under those arrangements are
the responsibility of the host regional processing country. Refugee status determination is
conducted under the domestic laws of the regional processing country.
2.3
The complainant arrived on Christmas Island on 24 July 2013 as an unauthorized
maritime arrival. He was transferred to the Manus Regional Processing Centre, Papua New
Guinea, on 19 December 20132 under section 198AD of the Migration Act. There, he was
tortured, including by having his throat slit by a guard, who garrotted him and almost killed
him.3 The holding of the complainant in the conditions there caused such harm to his physical
and mental health that he became suicidal, wanting to end his suffering, and engaged in
self-harm, including through attempted self-immolation. Due to the stress, he suffers from a
skin condition, psoriasis, which is disfiguring his face and body and further contributing to
his suicidality. On an unknown date in 2016, the Papua New Guinea Supreme Court ordered
the release of the complainant and other persons from the detention centre.4
2.4
On 17 June 2019, the complainant signed a form consenting to a temporary transfer
to Australia for medical treatment. The agreement specified, among other things, that while
in Australia, the complainant would be detained in an immigration detention facility on the
basis that he was an unlawful non-citizen. On 18 June 2019, the complainant was transferred
to Australia5 for medical treatment for severe dermatitis and mental health issues.6 According
to a clinical advisory team opinion issued by the Department of Home Affairs on 17 March
2021, the complainant, following his transfer, was seen on multiple occasions by
dermatologists at a tertiary-level hospital outpatient clinic and received a diagnosis and
treatment recommendations. His compliance with the treatment was poor, but his condition
nevertheless improved. According to the same clinical advisory team opinion, on 9 March
2021, the complainant declined to attend a dermatology clinic appointment due to the
requirement for a security escort. Since his transfer to Australia, his mental health has been
managed with input from a psychiatrist, who noted on multiple occasions that no mood or
psychotic disorders were present. He attended routine mental health screening with a mental
health nurse in February 2021 and disclosed underlying anxiety about his situation and a
sense of persecution; however, he did not have any serious mental health problems. He was
therefore assessed by the medical officer as not needing to remain in Australia.
1 See Memorandum of Understanding between the Government of the Independent State of Papua New
Guinea and the Government of Australia, relating to the transfer to, and assessment and settlement in,
Papua New Guinea of certain persons, and related issues, 6 August 2013; Memorandum of
Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the
transfer to and assessment of persons in Nauru, and related issues, 3 August 2013; and Memorandum
of Understanding between the Republic of Nauru and Australia on the Enduring Regional Processing
Capability in Republic of Nauru, September–October 2021.
2 No details were provided on who performed the transfer.
3 The complainant submits photos showing scars on his neck.
4 No details were provided.
5 No details were provided on who performed the transfer. He was held in detention in Australia until
7 April 2022.
6 The State Party mentions several dates of different medical consultations.
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2.5
Notwithstanding the previous infliction of torture and imprisonment in Papua New
Guinea, the complainant requested on 15 November and 10 December 2020 to be sent back
to Papua New Guinea instead of remaining in immigration imprisonment in Australia. 7
However, on 20 March 2021, the migration authorities of Papua New Guinea informed the
Australian authorities that they were not accepting the return of any transitory persons, in an
attempt to stop the increase in cases of coronavirus disease (COVID-19).8 On 7 April 2021,
the Australian authorities obtained approval from the authorities of Nauru to accept seven
transitory persons, including the complainant.9
2.6
On 15 December 2020, the complainant filed an application in the then Federal Circuit
Court of Australia10 seeking a declaration that his detention was unlawful and an order for
release from detention (habeas corpus). The court dismissed his case on 2 August 2021. The
complainant appealed the court decision to the Federal Court of Australia. On 29 November
2021, the Federal Court of Australia dismissed his appeal. On 24 December 2021, the
complainant filed an application in the original jurisdiction of the High Court and by way of
a later amended application sought orders for the conduct of a non-refoulement assessment
of protection claims asserted against Nauru and Papua New Guinea, prior to the authorities
taking any steps to remove him from Australia. This case is ongoing.
2.7
On 7 April 2022, the Minister for Home Affairs intervened in the complainant’s case
and granted him a Bridging Visa Class E. Since that date, the complainant has been living in
the community. He remained on a valid Bridging Visa Class E until 10 December 2022. On
18 August 2022, the Minister intervened to allow the complainant to apply for a subsequent
Bridging Visa Class E upon the expiry of the existing one. As a holder of a Bridging Visa
Class E and accordingly a lawful non-citizen, the complainant is not eligible for transfer to a
regional processing country. As a transitory person, the complainant would not be settled in
Australia and was encouraged to engage in third country resettlement options. The extension
to his Bridging Visa Class E provided additional time for him to engage in third-country
migration outcomes.
Complaint
3.1
The complainant claims, under article 2 of the Convention, that the State Party held
him in detention in conditions of torture in Papua New Guinea. He also claims that, although
transferred to Australia and detained for the purpose of receiving medical treatment, he has
not received any medical treatment. He considers that his ongoing detention is calculated to
destroy his mental health and force him to return to the Islamic Republic of Iran, the country
from which he fled, fearing persecution.
3.2
The complainant invokes article 3 to allege a risk of torture in Nauru because of his
refugee status. He submits that, in Nauru, refugees might be subjected to violence not only
by the authorities, but also by the local population, in which case the authorities would not
protect them. In Nauru, the complainant would have no refugee assessment process and
would be exposed to violence perpetrated against him by locals due to his ethnicity and
refugee status.
3.3
The complainant explains that the State Party’s resumed operation of immigration
imprisonment camps in Nauru has led to ethnicity-based violence perpetrated by locals
against refugees, with the refugees having no protection under the law. There is widespread
and systematic rape of women and children, resulting in the evacuation of most women and
child refugees. There are widespread and systematic attacks on and attempted murders of
7 Transitory persons brought to Australia from a regional processing country for a temporary purpose
are subject to immigration detention on arrival in Australia under section 189 of the Migration Act,
until they depart or are otherwise granted a visa or residence determination through ministerial
intervention. Transitory persons are required to return to a regional processing country upon
completion of the temporary purpose for which they were transferred to Australia.
8 The regional processing arrangements with Papua New Guinea ended on 31 December 2021.
9 It is a policy of the Government of Australia that no transitory person is to settle permanently in
Australia.
10 In 2021, the Federal Circuit Court was merged with the Family Court of Australia to form the Federal
Circuit and Family Court of Australia, effective from 1 September 2021.
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refugees, including by the authorities, with no protection under the law. Refugees are
subjected to arbitrary arrest and imprisonment by the Nauru police and Emergency Response
Team, including for the crimes of protest or self-harm. This is regularly accompanied with
severe beating, kneeling on the detainee’s neck, purported body cavity searches amounting
to digital rape, and holding immigration prisoners handcuffed while completely naked and
exposed to local prisoners for extended periods of time for offences of protest or self-harm.
3.4
The complainant also considers that his holding in immigration imprisonment –
approaching its ninth year at the time of submission of his communication – is inhuman and
degrading, thus violating article 16 of the Convention. The denial of medical treatment and
the conditions and duration of indefinite custody amount to cruel, inhuman and degrading
treatment, imposed to make an example of him because of his arrival in Australia by boat in
2013.
State Party’s observations on admissibility and the merits
4.1
On 25 October 2022, the State Party challenged the admissibility of the complaint,
arguing that the complainant’s claims under articles 2 and 16 with respect to alleged torture
and ill-treatment while he was in Papua New Guinea related to alleged violations occurring
outside the State Party’s territory and jurisdiction and that his other claims were manifestly
unfounded within the meaning of rule 113 (b) of the Committee’s rules of procedure.
Accordingly, the State Party has not addressed the merits of the complainant’s claims
regarding alleged violations of the Convention during his time in Papua New Guinea.
4.2
With regard to his access to medical treatment after his transfer to Australia, the State
Party submits that the complainant has not provided any explanation or documentary
evidence to substantiate his allegations, beyond the general statement that “no medical
treatment has been provided”. Contrary to the complainant’s allegations, the State Party
submits that he has received adequate healthcare while in Australia (see para. 2.4 above).
With respect to his physical health, the complainant has been treated for a chronic skin
condition and for ear, nose and throat issues. The complainant’s mental health has also been
closely monitored while in Australia and he has received treatment where required. He has
been frequently assessed by clinicians from the health service provider contracted by the
Department of Home Affairs. The complainant has also had ongoing appointments for mental
health reviews and counselling sessions with counsellors from the Queensland Program of
Assistance to Survivors of Torture and Trauma. His mental health has been managed with
psychiatric input. For this reason, the State Party considers that any allegation that the
complainant has not received medical attention in Australia is manifestly unfounded.
4.3
With regard to the complainant’s detention in Australia, the State Party submits that
he is no longer in detention and has been residing in the community since 7 April 2022.
Further, contrary to the complainant’s allegation that his detention was designed to “destroy”
his mental health and “force” him to return to the Islamic Republic of Iran, the State Party
explains that immigration detention under the Migration Act is administrative in nature and
not applied for punitive purposes. The health and safety of all persons held in detention is a
priority for the Government, and all immigration detention placements are decided using a
risk-based approach under which the individual’s circumstances are taken into consideration.
4.4
The State Party considers that the complainant has failed to present any evidence in
substantiation of his claim that his detention constituted cruel, inhuman or degrading
treatment. Contrary to his allegations with respect to the denial of medical treatment, the
complainant has, at all times, had access to adequate healthcare while in Australia, both in
detention and when living in the community. While in immigration detention, the
complainant has had access to clinical health services to a standard broadly commensurate
with the healthcare available to people in the Australian community through the public health
system, including mental health services. Those services have been provided at no cost to
him.
4.5
The State Party clarifies that the complainant has attended multiple consultations with
psychiatrists, general practitioners and external specialists for his mental health and physical
health issues throughout his time in immigration detention. On 15 June 2021, he withdrew
his consent for all treatment from the health service provider and signed a medical refusal
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consent form. As a result, from that date until his release into the community on 7 April 2022,
the complainant did not access the medical services available to him, aside from receiving
his three vaccinations against COVID-19. Nonetheless, he continues to have access to the
State Party’s public healthcare system.
4.6
As to the complainant’s allegations with respect to being removed to Nauru, the State
Party declares that, while he holds a Bridging Visa Class E, he will not be taken to Nauru.
However, should the complainant ultimately be transferred to Nauru when his Bridging Visa
Class E expires, pursuant to the memorandum of understanding between Australia and Nauru,
Nauru has assured the State Party that transferees will be treated with dignity and respect, in
accordance with relevant human rights standards, and will not be subject to refoulement to a
third country. Further, should the complainant be transferred to Nauru, a pre-transfer
assessment would be conducted by the Department of Home Affairs of Australia to identify
whether there are any obstacles to transfer, including any health, legal and/or operational
obstacles.
4.7
On the merits, the State Party rejects the complainant’s allegations that he has been
denied medical treatment. While in Papua New Guinea, the complainant was treated for ear,
nose and throat issues and received secondary treatment for dermatological, orthodontic and
urological issues, as well as mental health issues. Since his arrival in Australia, he has been
treated by dermatologists on multiple occasions as a hospital outpatient and has received
mental health treatment and treatment for ear, nose and throat issues.11
4.8
According to the State Party, nothing in the complainant’s treatment in detention
constitutes torture or cruel, inhuman or degrading treatment or punishment. It reiterates that
the complainant’s immigration detention was administrative in nature and was due to his
status as an unlawful non-citizen in Australia, pending his transfer back to a regional
processing country or his resettlement in a third country. His detention was of a temporary
nature and was subject to regular review. On 7 April 2022, he was granted a Bridging Visa
Class E and now resides in the community. Immigration detention can be distinguished from
imprisonment, as persons in immigration detention are not detained in a prison, are not
considered to be prisoners and are not held in detention for punitive reasons.
4.9
The State Party insists that the complainant, as a holder of a Bridging Visa Class E, is
not currently eligible for transfer to Nauru. His extended Bridging Visa Class E is intended
to provide additional time for him to engage in third country resettlement options. He was on
a resettlement pathway to Canada; however, he declined to attend the medical examination
required to progress resettlement to Canada and later withdrew from the process. It is also
open to him to apply for permanent resettlement in Papua New Guinea. Should the
complainant ultimately not engage in a third country resettlement process, he would be taken
to Nauru upon the expiry of his Bridging Visa Class E after the Department of Home Affairs
undertakes a pre-transfer assessment to determine whether there are any obstacles to transfer,
including any health, legal and/or operational obstacles. Even if it is accepted that there is a
general risk of violence in Nauru, the State Party submits that the complainant has not
established additional grounds to show that he is at a foreseeable, real and personal risk of
torture if transferred to Nauru.
Complainant’s comments on the State Party’s observations on admissibility and the
merits
5.1
On 12 August 2023, the complainant submitted his comments on the State Party’s
observations. He insists that the State Party had effective control, management and oversight
over the detainees in the detention centre in Papua New Guinea, including the authority to
bring such persons to Australia, as ultimately and belatedly occurred with the complainant.
The State Party paid for and staffed the detention centres in which transferees were illegally
and arbitrarily detained in Papua New Guinea.
5.2
The complainant recalls that, while in detention in Papua New Guinea, he was
attacked by an unknown person who slashed his throat. The Government of Australia and the
private security firm that was contracted by the Government to provide security in the
11 The State Party mentions the dates of medical treatment.
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detention centre and detain the complainant and others in Papua New Guinea have never
accounted for this act of torture, never apologized and never investigated it or sought to
provide justice or recompense for it. He submits that acts of attempted murder are acts of
torture and that the State Party had a duty not to allow the infliction of such torture on the
complainant and further, to investigate it and punish it. It also had a duty to rehabilitate the
complainant.
5.3
Should the complainant be removed to Nauru, he would be subject to persecution as
a male transferee from Australia. There have been ongoing reports of serious acts of violence
against transferees by locals and guards, including rape and grievous bodily harm. There have
been reports of police stripping transferees naked and digitally penetrating them in the police
cells, as well as punching them. 12 There is no effective protection of law there. These
problems depend in part on the number of detainees sent to Nauru by the State Party: when
many refugees are present in the community, there is a serious violent response. The State
Party’s policy of flooding Nauru with a population of prisoners who are mostly single young
men of a different ethnicity is a recipe for communal conflict, as occurred in the
complainant’s case. To transfer the complainant to Nauru for an indefinite period means
ultimately forcing him to return to the Islamic Republic of Iran. The State Party mentions
pre-transfer assessment before transfer to a regional processing country; the complainant
declares that no such pre-transfer assessment was conducted in his case.
5.4
The complainant contests the State Party’s statement that events relevant to his
application occurred outside its jurisdiction. He explains that the Government of Australia
maintained control of the detention centres with Australian Border Force officers, who were
both working for the Government of Australia and seconded to the Government of Papua
New Guinea, and that it provided the security firm responsible for watching over the
complainant and the other transferees in detention. Moreover, it always maintained
jurisdiction over the complainant, enabling it, in particular, to bring him to Australia at any
moment. This it did belatedly in 2019. While the State Party claims that Papua New Guinea
had responsibility for the treatment of detainees, that was patently untrue, as was ultimately
shown by the evacuation of the complainant and almost all the other detainees to Australia,
usually because of the deterioration of their health due to their indefinite detention into a state
of medical emergency, as was the case for the complainant.
5.5
The complainant mentions that the security firm in the detention centre in Papua New
Guinea was a contractor in the employ of the State Party, so the complainant was under the
jurisdiction of the State Party at all material times. Hence, the classification of the
complainant under the Migration Act 1958 as a transitory person because he was transferred
to Manus Island was a legal liability that endured throughout his time in Australia and in
Papua New Guinea and up to the present date. He explains that there is no process in
Australian law for termination of transitory person status other than the acquisition of
Australian citizenship. Even final departure from Australia does not trigger any provision for
the termination of transitory person status. In any case, he considers that the State Party
maintained responsibility for, care of and control over him at all relevant times, which is
further shown by the conduct by the Government of Australia of two inquiries into the
incident in which he was harmed, and ultimately by the Government bringing him to
Australia. The complainant notes that the State Party has failed to provide to the Committee
the relevant materials held in its possession as to the two inquiries in relation to the incident
in Manus Island, insofar as they relate specifically to him.
5.6
The complainant explains that, while the State Party appears to claim that there was a
law on transferring all unauthorized maritime arrivals, except those exempted by the minister,
to a regional processing country, in practice what occurred was that only a random portion
of them were actually transferred. It is also to be noted that the State Party had to evacuate
transferees from Papua New Guinea and Nauru to Australia in order to make way for new
arrivals.
5.7
As to the State Party’s statement that his allegations are manifestly unfounded, the
complainant insists that having his throat slit from ear to ear by an employee contractor of
12 No references were provided.
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the State Party while illegally detained by the State Party in Papua New Guinea is a very
serious matter, as is nine years of arbitrary detention in atrocious conditions, leading to a
life-threatening deterioration in his physical and mental health.
5.8
The complainant alleges that no adequate medical care was provided for his complex
conditions, which ultimately required him to live in an environment in freedom in which he
could recover and manage his condition. He was detained by the State Party for over
33 months before being released on a bridging visa. Although, on 17 March 2021, the
complainant was assessed as no longer needing to be in Australia for medical treatment, the
State Party offered no satisfactory explanation for his continued detention until 7 April 2022
and why it could not have released him earlier. In any case, Papua New Guinea did not accept
any of the transferees back and the State Party, despite knowing about this, maintained the
complainant and others in a state of indefinite detention in Australia under the fiction that
they were to be returned to Papua New Guinea. The Minister for Home Affairs and the
Minister for Immigration were the only two people with the power under Australian law to
release the complainant, and that power was non-compellable and not justiciable, and
therefore completely arbitrary.
5.9
As to health and welfare services in Papua New Guinea, the complainant asserts that,
while the State Party claims to have provided necessary health services to detainees and
transferees, these services were clearly inadequate for the complainant, and practically the
whole cohort, as their health had deteriorated to such an extent that their life, health and safety
were at serious risk and they were transferred to Australia for medical treatment.
5.10
The complainant notes that, although the State Party claims that transfer to Australia
would not occur without the consent of the Government of Papua New Guinea, it does not
mention that officers of the Government of Australia were seconded to the Government of
Papua New Guinea for the management of the regional processing centres.
5.11
The complainant submits that the State Party’s statement that its policy is that “no
transitory person will settle permanently in Australia” is untrue, since the first cohort of
transitory persons evacuated back to Australia in 2013 had that bar lifted and were allowed
to apply for temporary protection visas or safe haven enterprise visas, and those transitory
persons who were granted such visas have now been allowed to apply for permanent visas.
The complainant refers to section 5 of the Migration Act 1958, which provides that transitory
person includes any person who was taken to a regional processing country and includes
those subsequently transferred to Australia.13
5.12
The complainant concludes that the State Party knows full well that it has a duty to
consider his claims under the Convention relating to the Status of Refugees but refuses to do
so. In this way, it continues to abrogate its international obligations. That the State Party
continued to detain the complainant for a further 30 months after medically evacuating him
to Australia can only be construed as a repudiation of the international obligations of
Australia.
State Party’s additional observations
6.1
On 15 November 2024, the State Party provided additional observations. It reiterates
that at no time did it have effective control over detainees in the Manus Regional Processing
Centre in Papua New Guinea because at no time did its officials detain those individuals or
take physical custody of them. The Papua New Guinea Immigration and Citizenship
Authority made the ultimate decision as to whether individuals were to be transferred to
Australia or not. The mere presence of Australian Border Force officers in the Manus
Regional Processing Centre is insufficient to meet the high standard required for a State to
be effectively controlling territory abroad.14 Australian Border Force officers were not – as
alleged by the complainant – seconded to the Government of Papua New Guinea. Australian
Border Force officers provided Papua New Guinea with capacity-building support for their
protection claims assessment and status resolution capabilities. The role of the Department
of Home Affairs in the Manus Regional Processing Centre was to support the Government
13 See https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ma1958118/s5.html.
14 CCPR/C/AUS/Q/5/Add.1, para. 17.
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of Papua New Guinea in implementing arrangements through the management of service
delivery contracts. All actions associated with the operation of the Manus Regional
Processing Centre were the responsibility of the Government of Papua New Guinea.
Similarly, the presence of private security personnel in the Manus Regional Processing
Centre is also insufficient to meet this standard. In addition, the State Party submits that it at
no time had effective control over detainees in the Manus Regional Processing Centre
because its officials at no time detained those individuals or took physical custody of them.
Hence the complainant’s claims with respect to any treatment occurring in Papua New
Guinea are inadmissible.
6.2
On the merits, the State Party reiterates that the complainant’s detention in Australia
was not arbitrary or indefinite. His detention was subject to review to assess the
appropriateness of the accommodation and services provided, including the length and
conditions of the complainant’s detention. It explains that the Department of Home Affairs
conducts reviews through its case management service. Case managers develop a case plan
for each person in immigration detention, and these plans are subject to regular assessments.
6.3
As to the complainant’s allegation that a large number of transferees were transferred
back to Australia in 2013 and allowed to apply for protection visas, the State Party clarifies
that, on 13 February 2023, the Government of Australia announced that it would move
Temporary Protection Visa and Safe Haven Enterprise Visa holders onto permanent visas. It
is implementing this policy by enabling eligible visa holders to apply for a Resolution of
Status Visa. However, individuals who have had their visa cancelled or refused will not be
eligible to apply for a Resolution of Status Visa. People who fall under the protection
obligations of Australia (and therefore cannot be returned to their home country) but fail a
character or security test may be considered for third-country resettlement. Transitory
persons brought to Australia from regional processing countries (Nauru and Papua New
Guinea) for medical treatment – about 1,100 people – and transitory persons still in those
countries do not form part of the legacy caseload and are not eligible for this visa pathway.
6.4
As to the complainant’s alleged deportation to Nauru, the State Party repeats that, as
the holder of a Bridging Visa Class E and a lawful non-citizen, the complainant would not
be transferred to Nauru. In accordance with government policy, as a transitory person, the
complainant does not have a settlement pathway in Australia and is encouraged to engage in
third-country resettlement pathways, such as resettlement in New Zealand. The designation
of Papua New Guinea as a regional processing country lapsed on 1 April 2023 and further
designation has not progressed. Since 1 April 2023, there is no option for the complainant to
be taken to Papua New Guinea under the Migration Act.
6.5
The State Party submits that arguments relating to the Convention relating to the
Status of Refugees are outside the scope of this communication and are therefore
inadmissible in accordance with rule 113 (a) of the Committee’s rules of procedure.
Issues and proceedings before the Committee
Consideration of admissibility
7.1
Before considering any claim contained in a communication, the Committee must
decide whether or not it is admissible under article 22 of the Convention. The Committee has
ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same
matter has not been and is not being examined under another procedure of international
investigation or settlement.
7.2
The Committee notes that the State Party contests the admissibility of the claims
related to the facts that occurred in Papua New Guinea on the grounds that the facility in
Papua New Guinea was not under its jurisdiction. The State Party argues that it did not
exercise any effective control over detainees in the Manus Regional Processing Centre in
Papua New Guinea because its officials at no time detained those individuals or took physical
custody of them. Nonetheless, the Committee notes that the complainant insists that the State
Party maintained control of the detention centres with its own officers, that it provided the
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security contracting firm charged with holding the complainant in detention and that it always
maintained jurisdiction over him, enabling it, in particular, to bring him to Australia at any
moment.
7.3
The Committee recalls that, pursuant to article 22 of the Convention, it receives and
considers communications from or on behalf of individuals subject to a State Party’s
jurisdiction who claim to be victims of a violation by that State Party of the provisions of the
Convention, provided that the State Party has declared that it recognizes the competence of
the Committee in that regard.15
7.4
In the present case, the Committee notes that, in order to determine whether some of
the claims made by the complainant may be considered under the Convention, it is necessary
to determine whether the complainant was located in a territory where the State Party
exercises its jurisdiction. In this regard, the Committee notes the State Party’s allegation that,
while detained at the Manus Regional Processing Centre, the complainant was located in a
place that was not under the jurisdiction of the State Party, but rather under the jurisdiction
of Papua New Guinea. The Committee also notes the complainant’s allegation that the State
Party maintained control of the detention centre through its staff.
7.5
The Committee notes that the complainant was transferred by the State Party to Papua
New Guinea at the end of 2013, pursuant to section 198AD of the Migration Act 1958, and
that he was placed in immigration detention in the Manus Regional Processing Centre. The
Committee considers that the complainant’s placement in detention in Papua New Guinea,
pending the processing of his protection claims, was a necessary and foreseeable
consequence of the transfer of the complainant by the State Party.
7.6
The Committee observes that, pursuant to a 2014 report of the Legal and
Constitutional Affairs References Committee of the Senate of Australia as to the incident
during which the complainant was attacked by an unknown person who slashed his throat,
the Manus Regional Processing Centre was entirely funded by the Government of Australia;
operational, maintenance, security and welfare support services were provided by service
providers under contracts with Australia; and Australian officials managed or had significant
involvement in the regional processing centre processes in respect of individuals held there.16
The Committee also observes that the Government of Australia provided capacity-building
and funding for the Manus Island centre and, under an agreement with Papua New Guinea,
coordinated the contract administration process for the provision of services at the centre.
Various providers entered into contracts with the department, representing the
Commonwealth, in order to provide services in the areas of garrison and security services,
health and medical services, welfare support and interpreting services. 17 The Committee
takes note of the Senate Committee’s view on the existence of “harsh and inhumane
conditions” 18 at the Manus Island Regional Processing Centre and that “it is clear from
evidence presented to the committee that the Australian Government failed in its duty to
protect asylum seekers”.19
7.7
The Committee notes the Senate Committee’s conclusions as to the responsibility of
the Government of Australia in relation to the Manus Island Regional Processing Centre: the
evidence provided by experts in international human rights law was unequivocal in stating
that Australia was and still is “exercising effective control with respect to the Manus Island
Regional Processing Centre and the individuals held there”. 20 The Australian Senate
Committee considered that “the degree of involvement by the Australian Government in the
establishment, use, operation, and provision of total funding for the centre clearly satisfies
the test of effective control in international law, and the government’s ongoing refusal to
15 Committee against Torture, general comment No. 4 (2017), para. 6.
16 Parliament of Australia, Senate Standing Committees on Legal and Constitutional Affairs, Incident at
the Manus Island Detention Centre from 16 February to 18 February 2014, 11 December 2014,
para. 7.24.
17 Ibid., para. 2.10.
18 Ibid., para. 8.10.
19 Ibid., para. 8.6.
20 Ibid., para. 8.33.
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10
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concede this point displayed a denial of Australia’s international obligations.”21 The Senate
Committee also agreed with the view put to it by international human rights law experts that,
even if the State Party did not exercise effective control, it would still be liable for breaches
of international human rights law that occurred in respect of asylum-seekers held at Manus
Island under the doctrine of joint liability. The Senate Committee concluded that, “questions
of effective control aside, the Australian Government, as the architect of the arrangements
with [Papua New Guinea], has a clear and compelling moral obligation to ensure the
treatment of asylum seekers held on Manus Island is in accordance with the principles and
minimum standards contained in international human rights law”.22
7.8
The Committee recalls paragraph 16 of its general comment No. 2 (2007) on the
implementation of article 2, in which the Committee defines the principle of “factual or
effective control” when establishing the exercise of jurisdiction. The Committee observes
that the State Party established policies to transfer unauthorized maritime arrivals who arrived
in Australia after 13 August 2012 to regional processing centres, either in Nauru or in Papua
New Guinea, to have their protection claims assessed. The State Party funded the detention
operations, was authorized to jointly manage them, participated in monitoring them and
selected companies that would be responsible (directly or through subcontractors) for
construction, security, garrison, health and other services at the detention centre. The
Committee also recalls its finding that all persons who were under the effective control of the
State Party, because, inter alia, they were transferred by the State Party to centres run with
its financial aid and with the involvement of private contractors of its choice, enjoyed the
same protection from torture and ill-treatment under the Convention.23 In the light of all of
the factors described above, the Committee considers that the significant levels of control
and influence exercised by the State Party over the operation of the Manus Island Regional
Processing Centre amounted to such control during the period when the complainant was
detained, attacked and injured at the Centre. The Committee thus considers that, while he
was detained at the Manus Island Regional Processing Centre, the complainant was subject
to the jurisdiction of the State Party.24 Therefore, the Committee considers that article 22 (2)
of the Convention does not pose an obstacle ratione loci to the admissibility of the
complainant’s claim under article 2 of the Convention in relation to his detention at the
Manus Island Regional Processing Centre.
7.9
Insofar as the communication concerns the alleged transfer of the complainant to
Nauru, the Committee notes the State Party’s information that the complainant, as a holder
of a Bridging Visa Class E, is not currently eligible for transfer to Nauru and, upon the expiry
of his Bridging Visa Class E, he would be taken to Nauru only after the Department of Home
Affairs undertakes a pre-transfer assessment to determine whether there are any obstacles to
transfer, including any health, legal and/or operational obstacles. In the light of this
information and in the absence of a decision in force to transfer the complainant to Nauru,
the Committee considers that this claim has become moot. When taking this decision, the
Committee is aware that, in any event, the complainant would be able to submit a new case
to the Committee against the State Party if a new risk relating to his removal to Nauru arises
in the future.
7.10
The Committee notes that the State Party challenges the admissibility of the
complainant’s claims under article 16 as to the length of his immigration detention in
Australia and lack of medical treatment, on the basis that they are manifestly unfounded. The
Committee notes the State Party’s explanation that the complainant’s immigration detention
was administrative in nature and also takes note of the detailed account of the healthcare
consultations and treatment received by the complainant. It notes that the complainant has
neither informed the Committee about these treatments nor commented upon the State Party’s
21 Ibid.
22 Ibid., para. 8.34.
23 CAT/C/AUS/CO/4-5, para. 17; and CAT/C/AUS/CO/6, para. 29.
24 Nabhari v. Australia (CCPR/C/142/D/3663/2019), para. 7.15; and M.I. and al. v. Australia
(CCPR/C/142/D/2749/2016), para. 9.9.
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GE.26-00455
11
allegations. In the absence of any further relevant information as to the alleged lack of
medical treatment, the Committee concludes that the complainant has failed to substantiate
his claim sufficiently for the purpose of admissibility.
7.11
The Committee considers, however, that the complainant has sufficiently
substantiated his claim of excessive length of immigration detention for the purposes of
admissibility. Accordingly, it declares the complaints under articles 2 (1) and 16 (1) of the
Convention admissible and proceeds with its consideration of the merits.
Consideration of the merits
8.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, in accordance with article 22 (4) of the Convention.
8.2
In the present case, the issue before the Committee is whether the complainant’s
detention in the Manus Island Regional Processing Centre in Papua New Guinea and his
immigration detention in Australia constitute a violation of the State Party’s obligations under
articles 2 (1) and 16 (1) of the Convention to take effective legislative, administrative, judicial
or other measures to prevent acts of torture or of cruel, inhuman or degrading treatment or
punishment in any territory under its jurisdiction.
8.3
As to the complainant’s detention in the Manus Island Regional Processing Centre in
Papua New Guinea, the Committee notes his allegations that the State Party held him illegally
in detention in conditions of torture, culminating in an attempt to murder the complainant
and a lack of investigation and rehabilitation. The complainant also alleges that he was held
in “atrocious conditions” and lacked adequate medical care. The Committee also notes that
the State Party has refrained from commenting on the merits of the complainant’s allegation
with regard to his time spent in Papua New Guinea. Due weight must therefore be given to
the complainant’s allegations, to the extent that they have been properly substantiated.
8.4
The Committee recalls its conclusions and recommendations in respect of the reports
submitted by the State Party under article 19 of the Convention, in which it urged the State
Party to adopt the measures necessary to guarantee that all asylum-seekers or persons in need
of international protection who were under its effective control were afforded the same
standards of protection against violations of the Convention regardless of their mode and/or
date of arrival. The Committee further held that the transfers to the regional processing
centres in Papua New Guinea (Manus Island) and Nauru, which in 2013 were deemed by the
Office of the United Nations High Commissioner for Refugees not to provide “humane
conditions of treatment in detention”, did not release the State Party from its obligations
under the Convention.25
8.5
In the present case, the Committee notes that the State Party has not submitted any
information or evidence that it took measures to protect the complainant from acts of torture
or ill-treatment during his detention in the Manus Island Regional Processing Centre in Papua
New Guinea. Moreover, the State Party has not provided any information on measures taken
to have the local authorities investigate the act of cutting the complainant’s throat while in
detention and to duly punish those responsible. It also did not inform the Committee about
the conditions of the complainant’s detention of approximately three years in Papua New
Guinea or about the availability of effective medical treatment. In that connection, the
Committee reiterates its concerns at the State Party’s policy of transferring asylum-seekers
to the regional processing centres located in Papua New Guinea (Manus Island) and Nauru
for the processing of their claims, despite reports on the harsh conditions prevailing in those
centres, such as mandatory detention, overcrowding, inadequate healthcare and allegations
of sexual abuse and ill-treatment. The combination of the harsh conditions, the protracted
periods of closed detention and the uncertainty about the future reportedly creates serious
physical and mental pain and suffering amounting to ill-treatment.26 It further notes that these
conditions have allegedly compelled some asylum-seekers to return to their country of origin,
despite the risks that they face there. 27 Moreover, monitoring and oversight by local
25 CAT/C/AUS/CO/4-5, para. 17.
26 Ibid.
27 CAT/C/AUS/CO/6, para. 29.
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authorities and their agents should have been all the more stringent since Papua New Guinea
is not a State Party to the Convention, rendering the complainant without a remedy under the
Convention. In the light of the foregoing, the Committee finds a violation of article 2 (1),
read in conjunction with article 1 (1), and of article 16 (1) of the Convention in respect of the
circumstances of the complainant’s detention in the Manus Island Regional Processing
Centre in Papua New Guinea.
8.6
The Committee also notes the complainant’s allegation that his detention in Australia
from 24 July to 19 December 2013 and from 18 June 2019 to 7 April 2022 and the conditions
in which he was held were inhuman and degrading. It further notes the State Party’s statement
that the complainant’s immigration detention was administrative in nature and was due to his
status as an unlawful non-citizen. The State Party also claims that the detention was pending
his transfer back to a regional processing country or his resettlement in a third country, so it
was of a temporary nature and was subject to regular review.
8.7
The Committee recalls its conclusions and recommendations in respect of the reports
submitted by the State Party under article 19 of the Convention, in which it expressed concern
that detention continued to be mandatory for all unauthorized arrivals until the person
concerned was granted a visa or was removed from the State Party and that the law did not
establish a maximum length of time for a person to be held in immigration detention,
reportedly resulting in protracted periods of deprivation of liberty.28 The Committee therefore
recommended that the State Party repeal the provisions establishing the mandatory detention
of persons entering its territory irregularly and ensure that detention was applied only as a
last resort, when determined to be strictly necessary and proportionate in each individual
case, and for as short a period as possible.29 The Committee expressed concern about what
appeared to be the use of detention powers as a general deterrent against unlawful entry rather
than in response to an individual risk and about the poor material conditions of detention in
some facilities.30
8.8
The Committee notes that the Human Rights Committee has held that while detention
in the course of proceedings for the control of immigration is not arbitrary per se, it must be
justified as being reasonable, necessary and proportionate in the light of the circumstances,
reassessed as it extends in time, not be based on a mandatory rule for a broad category, take
into account less invasive means of achieving the same ends and be subject to periodic
re-evaluation and judicial review.31
8.9
In the present case, the Committee observes that in total, the complainant spent almost
three years and three months in immigration detention based on his status as unlawful
non-citizen. It is undisputed that the sole reason for the complainant’s administrative
detention in Australia was his unauthorized entry into Australia, by irregular maritime means,
as an asylum claimant. While the State Party argues that the complainant’s detention was
subject to review to assess the appropriateness of the accommodation and services provided,
including the length and conditions of detention, the Committee considers that the State Party
did not identify individualized and specific reasons that would have justified the need to
deprive the complainant of his liberty for such a protracted period of time, taking into account
his earlier prolonged detention in Papua New Guinea.32 The State Party also did not give any
reason specific to the complainant for continuing to detain him, why a less restrictive measure
could not have ensured the complainant’s availability for removal or why he was not
transferred earlier to the community.
8.10
The Committee considers that the State Party failed to explain or to provide sufficient
information as to why the complainant’s prolonged detention was justified as being
reasonable, necessary and proportionate in the light of the circumstances. It notes that the
State Party has not submitted information in respect of the complainant’s conditions of
28 CAT/C/AUS/CO/4-5, para. 16.
29 Ibid.
30 CAT/C/AUS/CO/6, para. 27.
31 For example, A.K. et al. v. Australia (CCPR/C/132/D/2365/2014), para. 8.4.
32 Mona Nabhari v. Australia, para. 8.6.
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13
detention. Accordingly, the Committee finds a violation of article 16 (1) of the Convention
with respect to the complainant’s immigration detention in Australia.
9.
The Committee, acting under article 22 (7) of the Convention, concludes that the facts
before it reveal a violation by the State Party of article 2 (1), read in conjunction with
article 1 (1), and of article 16 (1) of the Convention.
10.
The Committee urges the State Party to: (a) provide the complainant with an
opportunity to have his asylum claims examined by the competent authorities of the State
Party; (b) provide the complainant with appropriate redress, including compensation for
material and non-material damages, restitution, rehabilitation, satisfaction and guarantees of
non-repetition; and (c) ensure that similar violations do not occur in the future.
11.
Pursuant to rule 118 (5) of its rules of procedure, the Committee invites the State Party
to inform it, within 90 days of the date of transmittal of the present decision, of the steps it
has taken to respond to the above observations.
CAT/C/83/D/1079/2021
Annex
Individual opinion of Committee member Bakhtiyar
Tuzmukhamedov (dissenting)
1.
For the reasons set out below, I respectfully disagree with conclusions reached by the
majority in the decision concerning communication No. 1079/2021, and wish to distance myself
from the approach taken by the majority.
2.
I observe with regret the dependence of the majority on the concept of “effective
control”, which, controversial in and of itself,1 is completely irrelevant in the context of the
communication at hand. Suffice to note that in the recent advisory opinion on Legal
Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian
Territory, including East Jerusalem, 2 the International Court of Justice clearly linked
“effective control” to military occupation, as did the European Court of Human Rights in its
tone-setting Loizidou v. Turkey,3 developed in Al-Skeini and Others v. the United Kingdom,4
and further refined in Jaloud v. the Netherlands,5 in which it stated that “effective control”
was a “consequence of lawful or unlawful military action” by a State, resulting in its authority
being exercised over an area outside the territory of that State. Apparently, the establishment
of the Manus Regional Processing Centre is the outcome of bilateral intergovernmental
negotiations resulting in an international treaty, governing the Centre’s operation, rather than
military occupation.
3.
Under the terms of that treaty, designated as a memorandum of understanding,6 the
Government of Papua New Guinea made an “offer” to “host” persons transferred from
Australia (preamble). While, according to paragraph 6, “the Government of Australia will
bear all costs incurred” under the memorandum of understanding, the Centre was made part
of “joint cooperation” (para. 2) between the two contracting States. Moreover, under the
memorandum of understanding, the Chief Migration Officer of Papua New Guinea would
serve as the Administrator of the Centre (para. 22). Those and other provisions of the
memorandum of understanding indicate that the Government of Papua New Guinea entered
into the treaty with Australia in the exercise of its free sovereign will and did not surrender
its jurisdiction over the territory on which the Centre was set up. It remains for me to be
perplexed by the failure of the majority to draw comparisons between the said memorandum
of understanding and a similar, in terms of object and purpose, treaty referenced on multiple
occasions during the review, also in the course of the eighty-third session of the Committee,
of the third periodic report submitted by Albania.7 Under the terms of that treaty – the 2023
protocol between the Governments of Albania and Italy on migrant detention facilities in
Albania – facilities on Albanian territory to which migrants attempting to enter Italy would
be temporarily transferred, was to be subject exclusively to Italian jurisdiction (art. 4,
para. 2), with those facilities to be built and managed in accordance with Italian legislation
(art. 5, para. 1), with Albanian authorities only ensuring the maintenance of law and order
and public security on the perimeter outside the areas and during land transfers to and from
the areas in Albanian territory (art. 6, para. 2).
4.
While the claims under articles 2 (1) and 16 (1) of the Convention with respect to
alleged ill-treatment at the Manus Centre should have been rejected, as those events occurred
1 The approach to the notion of “effective control” by the International Court of Justice, the
International Tribunal for the Former Yugoslavia and the European Court of Human Rights lies
outside the scope of the present opinion.
2 19 July 2024, General List No. 186.
3 Application No. 15318/89, Judgment, 18 December 1996.
4 Application No. 55721/07, Judgment, 7 July 2011.
5 Application No. 47708/08, Judgment, 20 November 2014.
6 Memorandum of Understanding between the Government of the Independent State of Papua New
Guinea and the Government of Australia, relating to the transfer to, and assessment and settlement in,
Papua New Guinea of certain persons, and related issues.
7 CAT/C/ALB/CO/3, paras. 41 and 42.
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15
on the territory that, under the terms of the memorandum of understanding, remained under
the jurisdiction of Papua New Guinea, the facts as presented to the Committee reveal a
violation of article 5 (1) (b) of the Convention, because if violent ill-treatment of the
complainant, while he was confined to the Manus Centre, had been inflicted upon him by a
guard or an employee contractor, then the jurisdiction of Australia over those persons was
applicable. They should have been either Australian government officers or government
contractors, hence heavily regulated. That violation could be established by the Committee
proprio motu, and that could be achieved without resuming pleadings, the latter implying
re-engagement of the complainant and the State Party to seek their observations on the views
of the Committee, rather than of each other, in a way initiating a trialogue.
5.
Further, it should be recalled that the Committee has consistently underscored,
whether in dialogues with States Parties or in reviewing individual communications, the
urgency of promoting awareness of the Convention by way of training of all personnel
involved in the custody, interrogation or treatment of any individual subjected to any form
of deprivation or restriction of liberty. In line with that well-established practice, the decision
should have been enhanced by an obiter dictum stating that the facts of the communication
may reveal neglect by the State Party of the proper implementation of article 10 of the
Convention by reason of its personnel deployed on a mission abroad being insensible,
unwilling or reluctant to prevent ill-treatment of the complainant.