Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, AUSTRALIA; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.25-00305 (E) 210125 230125
Human Rights Committee
Views adopted by the Committee under article 5 (4) of the
Optional Protocol, concerning communication
No. 2749/2016*, **
Communication submitted by:
M.I. et al. (represented by counsel, Katherine
Wrigley, of Refugee Advice and Casework
Service)
Alleged victims:
The authors
State party:
Australia
Date of communication:
12 January 2016 (initial submission)
Document references:
Decision taken pursuant to rule 92 of the
Committee’s rules of procedure, transmitted to
the State party on 21 March 2018 (not issued in
document form)
Date of adoption of Views:
31 October 2024
Subject matter:
Extraterritorial application of the Covenant;
detention conditions for asylum-seekers in
Australia and in Nauru; non-refoulement
Procedural issues:
Admissibility – substantiation of claims; ratione
materiae and loci; abuse of submission
Substantive issues:
Mandatory immigration detention of minors in
Australia and their forcible transfer to Nauru;
freedom from torture or cruel, inhuman or
degrading treatment or punishment; arbitrary
detention
Articles of the Covenant:
7, 9 (1) and (4), 10 (1), 12, 13, 17, 19 (2), 21, 23,
24 and 26
Articles of the Optional Protocol:
2, 3 and 5 (2)
1.1
The authors of the communication are M.I. and 23 other authors. Twenty-two of the
authors are nationals of Afghanistan, the Islamic Republic of Iran, Iraq, Pakistan and Sri
Lanka, and two are stateless persons coming from Myanmar. At the time of submission of
the communication, all authors were unaccompanied minors born between 1996 and 1998.
The 24 authors claim violations by Australia of their rights under articles 7, 9 (1) and (4),
* Adopted by the Committee at its 142nd session (14 October–7 November 2024).
** The following members of the Committee participated in the examination of the communication:
Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders, Mahjoub El Haiba, Carlos
Gómez Martínez, Marcia V.J. Kran, Bacre Waly Ndiaye, José Manuel Santos Pais, Soh Changrok,
Tijana Šurlan, Kobayashi Tchamdja Kpatcha, Teraya Koji and Imeru Tamerat Yigezu.
United Nations
CCPR/C/142/D/2749/2016
International Covenant on
Civil and Political Rights
Distr.: General
23 January 2025
Original: English
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10 (1), 12, 13, 17, 19 (2), 21, 23, 24 and 26 of the Covenant. The Optional Protocol entered
into force for the State party on 25 December 1991. The authors are represented by counsel.
1.2
On 9 June 2016, the State party requested examination of the admissibility of the
communication separately from the merits. On 19 June 2018, the Committee, acting through
its Special Rapporteurs on new communications and interim measures, decided to examine
the admissibility of the communication together with its merits.
Facts as submitted by the authors
2.1
The authors submit that they were fleeing persecution in their home countries and
decided to travel to Australia. While they were en route to Australia by sea, Australian
authorities intercepted them and brought them to Christmas Island between mid-2013 and
early 2014.1 The authors were mandatorily detained until their forcible transfer to the Nauru
offshore Regional Processing Centre by Australian authorities. The transfers to the Regional
Processing Centre occurred in 2014 at different dates over several months. The authors were
transferred to Nauru under the memorandum of understanding of 29 August 2012 between
Nauru and Australia, which provides for the transfer by Australia to the Regional Processing
Centre of asylum-seekers who arrive in Australia by sea.2
2.2
In Nauru, the authors were forcibly detained at the Regional Processing Centre in
unacceptable living conditions and with uncertainty surrounding their fate and the duration
of their detention. After their transfer, the authors applied for asylum in Nauru, and all but
one applicant (who appealed the decision) were granted refugee status in or around
September 2014. All authors resided in Nauru at the time the communication was submitted
to the Committee.
2.3
The authors claim that Nauru is a difficult place to live, especially without adequate
provisions for clothing and footwear, strong eye protection and hats, some of which are not
available for children. The “camp” that houses families and children is in a geographic
depression that receives little breeze or shade. The accommodations consisted of temporary
vinyl tents housing up to 26 people separated by tarpaulins, with limited or no privacy. In
addition, owing to crowding and the inadequacy of facilities such as air conditioning, the
temperatures inside the tents could reach up to 30°C. Furthermore, the high humidity made it
difficult to get adequate rest and participate in recreational activities. There was insufficient
water and sanitation. In addition, access to telephones and the Internet was limited because
of the limited services available in Nauru, impacting the communication needs of detainees.
2.4
The authors add that almost all of them started to suffer from health problems in Nauru
in the form of deterioration of physical and mental well-being, which was manifested as
self-harm and threats of self-harm, depression, kidney problems, insomnia, headaches,
memory problems, weight loss, physical manifestations of mental health issues, poor
concentration and low self-esteem.
2.5
The authors assert that they are not statutorily able to challenge the legality of their
forcible transfer from Australia to Nauru or subsequent detention in the offshore Regional
Processing Centre before the courts of Australia or Nauru. Any possible remedy would be
ineffective since the courts of Australia and Nauru are incapable of rendering a binding
decision with effective relief to protect and enforce the authors’ human rights, as the
Covenant has not been domestically implemented. Moreover, the remedies sought by the
authors are not achievable under habeas corpus proceedings in Nauru, as they are located in
Nauru but the violations alleged predominantly concern the responsibility of Australia.
1 The authors were not traveling together, and the dates of arrival to Christmas Island and transfer to
the offshore Regional Processing Centre vary.
2 A second memorandum of understanding between Nauru and Australia relating to the transfer to and
assessment of persons in Nauru and related issues entered into force on 3 August 2013. Available at
https://www.dfat.gov.au/geo/nauru/memorandum-of-understanding-between-the-republic-of-nauru-
and-the-commonwealth-of-australia-relating-to-the-transfer-to-and.
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Complaint
3.1
The authors claim violations of their rights by Australia under articles 7, 9 (1) and (4),
10 (1), 12, 13, 17, 19 (2), 21, 23, 24 and 26 of the Covenant owing to their transfer to and
treatment in the offshore Nauru Regional Processing Centre. The authors contend that
Australia is responsible for their treatment while in detention in the Nauru Regional
Processing Centre.
3.2
The authors claim that Australia has jurisdiction and effective control over them from
the time of interception at sea, during their detention and refugee status determination in the
Nauru Regional Processing Centre, and in the event that they are resettled in a third country.
The State party is responsible under international human rights law for the treatment of
asylum-seekers, which it cannot avoid by transferring them to third States or by transferring
and detaining them outside its territory.3 The State party intercepted the authors and decided
after some time to transfer them to Nauru; the transfer happened under Australian law and
policy. Australia did not request adequate safeguards from Nauru to prevent the authors from
being subjected to human rights violations in Nauru. The Regional Processing Centre in
Nauru was established, built and funded by Australia, which controls service delivery at the
Centre by managing service provider contracts and maintaining a staff presence. Australia
exerts significant influence over the Centre through its service contractors. The State party
also trained Nauruan officials on refugee status determination. Should the Committee find
that Australia does not have effective control over the Centre, the authors submit that
Australia failed to exercise due diligence. It did not take reasonable steps to prevent the
authors from being subjected to human rights violations at the Centre.
3.3
The State party violated article 7 of the Covenant, as the effects of unacceptable
detention conditions at the Nauru Regional Processing Centre, the indefinite nature of the
detention and the uncertainty surrounding the authors’ fate amount to cruel, inhuman or
degrading treatment.
3.4
The authors claim that their rights under article 9 (1) have been violated, since
mandatory immigration detention is arbitrary per se when detention is not based on an
individualized assessment.4 They were subjected to mandatory detention by Australia and
transferred to Nauru for further detention without adequate individual assessment regarding
the need for immigration detention, including whether less restrictive measures were
appropriate, and without an opportunity to appeal such decision. Their personal security was
also violated since they faced threats of physical and emotional harm in an unsafe
environment, lack of privacy, overcrowding and prison-like conditions that were inadequate
for children. The Nauru police also failed to adequately protect the authors and prevent
violence against them. It failed to investigate and bring the aggressors to trial.
3.5
The State party also violated the authors’ rights under article 9 (4), as their entitlement
to court proceedings, to seek a decision on the legality of their detention and to be released
if the detention is found to be unlawful was not respected.
3.6
The State party violated article 10 (1). Given the conditions at the Regional Processing
Centre, the authors have not been treated with humanity and with respect for their inherent
dignity.
3.7
The authors’ rights under article 12 were also violated by the State party, as they were
detained at the Christmas Island from the time that they were intercepted at sea until their
transfer to the Regional Processing Centre in Nauru. In Nauru, they were granted a regional
processing visa under Nauruan law, which entailed mandatory detention pending health and
security clearance, curfew, being accompanied by a service provider outside the Centre and
3 See European Court of Human Rights, Al-Skeini and others v. the United Kingdom, Application
No. 55721/07, Judgement, 7 July 2011; Australian Human Rights Commission, Asylum Seekers,
Refugees and Human Rights: Snapshot Report (2013), p. 15; and European Court of Human Rights,
Hirsi Jamaa and others v. Italy, Application No. 27765/09, Judgment, 23 February 2012, para. 129.
4 See A. v. Australia (CCPR/C/59/D/560/1993); Office of the United Nations High Commissioner for
Refugees (UNHCR), Guidelines on the Applicable Criteria and Standards relating to the Detention of
Asylum Seekers and Alternatives to Detention (2012), para. 18; and Human Rights Committee,
general comment No. 35, para. 18.
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residing in notified premises. Those whose protection applications were denied remained in
the Centre. The management of the Centre as an “open” facility, together with the lack of
police protection, put the authors at risk of harm from the local community. In practice, they
were not able to leave the Centre and were forced to remain inside, limiting their freedom of
movement. Once they were recognized as refugees, the authors were required to await
transfer and resettlement to a third country or to the Nauruan community, and they were
unable to choose their place of resettlement.
3.8
The authors further contend that their rights under article 13 were violated, as they
had no access to a procedure for the determination of their status in Australia and the
lawfulness of their expulsion therefrom.
3.9
The State party violated the authors’ rights under article 17 by subjecting them to
arbitrary or unlawful interference with their privacy and family life. The authors claim that
their detention amounted to unlawful interference in their family life, and that the conditions
within the Regional Processing Centre were not conducive to a safe, nurturing and healthy
environment for unaccompanied minors.
3.10 As regards article 19 (2), the authors were prevented from seeking, receiving and
imparting information and ideas of all kinds, through any media of their choice, and from
being in contact with their relatives via telephone or Internet.
3.11 The State party also violated article 21 of the Covenant. The restrictions imposed at
the Regional Processing Centre were not in conformity with the law or necessary in a
democratic society in the interests of national security or public safety, public order, the
protection of public health or morals, or the rights and freedoms of others.
3.12 At the time of their detention, the authors were unaccompanied minors who still
needed and depended on family support and relationships. The State party failed to comply
with its obligations under article 23 of the Covenant.
3.13 In addition, Australia discriminatorily denied the authors right to protection required
by their status as minors under article 24. There is no comprehensive legal and policy
framework, nor is there adequate capacity, to provide child protection, including effective
social services and a criminal justice system, in Nauru. The authorities should have
considered the authors’ best interests as children and the adverse effects of their detention.
3.14 Finally, the authors claim the State party violated its obligations under article 26 by
not ensuring them equal treatment before the law. They were discriminated against on
grounds of their nationality and social origin, and vis-à-vis other asylum-seekers who did not
arrive in the State party by boat. There is also disparate treatment of unaccompanied minors
located in Australia and those offshore in the Regional Processing Centre.
State party’s observations on admissibility
4.1
On 9 June 2016, the State party submitted its observations, in which it requested the
Committee to examine the admissibility of the communication separately from the merits and
to find the communication inadmissible.
4.2
The State party submits that the authors make general allegations about the
circumstances of their detention in Australia prior to their transfer to Nauru, without
submitting substantiating evidence to constitute a prima facie case. The authors failed to
sufficiently substantiate that the conduct of Australian officers prior to their transfer
amounted to a violation with respect to individual authors under articles 9 (1) and (4),
12 and/or 13 of the Covenant.
4.3
The State party argues that the authors’ claims under article 7 are inadmissible ratione
materiae under article 3 of the Optional Protocol and that they are insufficiently substantiated
as they are not supported by evidence, pursuant to article 2 of the Optional Protocol. The
implied non-refoulement obligation under article 7 of the Covenant is triggered when there
is a real risk of irreparable harm. Officers of the Department of Immigration and Border
Protection assessed the personal circumstances of each of the authors before their transfer to
Nauru, in the context of pre-transfer assessment, and concluded that there was no risk of
irreparable harm. As the assessments concerned unaccompanied minors, they were
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conducted in the presence of an independent observer, and the recommendations for transfer
to Nauru were also reviewable by a senior official. The assessments also considered whether
the authors had made any protection claims against Nauru and whether they had special
circumstances to mitigate transfer. This procedure is in conformity with article 3 of the
Convention on the Rights of the Child.
4.4
The State party holds that its measures complied with the memorandum of
understanding with Nauru of 3 August 2013. Nauru provides assurances through the
memorandum of understanding to treat all persons consistent with human rights standards
and not to transfer individuals to a third country that would pose a real risk of torture or cruel,
inhuman or degrading treatment or punishment, deprivation of life or imposition of the death
penalty.5 Based on the assessment done by the State party and the undertakings of Nauru, the
State party asserts that the transfer of the authors posed no real and foreseeable risk of harm
under article 7 of the Covenant.
4.5
As to the authors’ claims of violations of articles 9 (1) and (4), 10 (1), 12, 13, 17 (1),
19 (2), 21, 23 (1), 24 (1) and 26 owing to their transfer to Nauru, the State party holds that
such claims are without legal basis as they are outside the scope of its obligations and
inadmissible ratione loci, under article 3 of the Optional Protocol. As concerns the authors’
alleged treatment in Nauru, they have failed to substantiate prima facie that Australia
exercises effective control or is otherwise jointly responsible or has the obligation of due
diligence. The Committee does not have competence to examine the authors’ claims under
these articles, since Australia does not exercise effective control in Nauru in respect to any
transferee, including the authors, and the rights under the Covenant do not apply
extraterritorially to the authors under these circumstances. The alleged violations did not
occur within Australia’s jurisdiction. The facts described in the communication involve
Nauru, regarding alleged violations in Nauru. Pursuant to article 2 (1) of the Covenant, the
State party is obliged to respect and ensure the rights recognized in the Covenant within its
territory and subject to its jurisdiction. Although exceptionally it may have obligations
beyond its territory, there is a high threshold to be met. The authors have failed to meet that
threshold.
4.6
The State party recognizes the independence of the legal framework of Nauru. The
operation of the Regional Processing Centre is regulated by the memorandum of
understanding, and the authors are subject to the law of Nauru. According to the
memorandum of understanding, Nauru oversees the process for determining if transferees are
entitled to protection as persons in need of international protection. In this regard, the authors
have failed to substantiate their claim of Australia’s effective control over them. Moreover,
they were found by Nauru to need protection and were given residence permits in Nauru.
4.7
The State party may not be considered jointly responsible with Nauru for the alleged
violations in Nauru, as that is not consistent with international law.6 Under article 1 of the
Optional Protocol, the Committee does not have competence to receive and consider a
communication related to alleged violations of the Covenant with respect to individuals in
Nauru, which is not a party to the Optional Protocol.
Authors’ comments on the State party’s observations on admissibility
5.1
On 1 August and 27 September 2016, the authors reiterated that their rights under the
Covenant were violated by the State party prior to and while being forcibly transferred to
Nauru, as well as during their detention in Nauru.
5.2
They maintain that the offshore Regional Processing Centres established by Australia
with other States systematically violate international human rights obligations. The legal
basis for Australia’s responsibility is non-refoulement obligations, extraterritorial application
of the Covenant and the effective control of Australia over the authors while they were
detained in Nauru.
5 Memorandum of understanding between Nauru and Australia, para. 19 (c).
6 Articles on the responsibility of States for internationally wrongful acts, including arts. 6 and 16–18
thereof.
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5.3
Australia violated its non-refoulement obligations to the authors, as they were
intercepted at sea as asylum-seekers by Australian authorities, taken to Christmas Island and
subsequently transferred to Nauru, exposing them to foreseeable and real risks of irreparable
harm, such as those contemplated in articles 6 and 7 of the Covenant.
5.4
Australia failed to fulfil its obligations to adequately assess the needs and best interests
of each individual author as a child on a continuing basis, when in immigration detention,
during transfer to the Regional Processing Centre and during detention thereafter in Nauru.
While the State party argues that there were no special circumstances preventing the authors’
transfer to Nauru, it does not specify what “special circumstances” would have mitigated
their transfer. In addition, the assessments made by its authorities are not subject to a review
independent from departmental officers. The authors also claim that the reliance of Australia
on the memorandum of understanding is insufficient to comply with its obligations under the
Covenant, and that the diplomatic assurances of Nauru are inadequate. In evaluating risks in
Nauru, Australia also failed to perform due diligence, as it did not consider factual issues
such as the general human rights situation of Nauru.7
5.5
The authors claim that the conditions they continued to face in detention, the risks
they faced in Nauru, together with their involuntary transfer, amount to a violation of their
rights under article 7. As a result of their transfer to Nauru and the conditions they face in the
country, they have experienced a deterioration of their mental health, personal security
problems, a decline in school attendance, limited contact with family, and poor
accommodation and privacy conditions, among other serious hardships.
5.6
The State party’s obligations under the Covenant apply extraterritorially. After their
transfer to Nauru, the authors remained within the power or effective control of the State
party. Their claims are related to the obligations of Australia under the Covenant and not the
obligations of Nauru. The essential causal link for the extraterritorial violations was the
conduct of Australia in transferring the authors to Nauru.8
5.7
The authors also point to the effective control over the authors by way of the State
party’s influence over Nauruan law and the management and operations of the offshore
Regional Processing Centre. First, the State party’s argument that it cannot interfere with
Nauruan law is not accurate, as, among other things, Australia contributed to the drafting of
legislation of Nauru establishing the Centre. The authors refer to a monitoring visit by the
United Nations High Commissioner for Refugees to Nauru in October 2013, during which
he observed that Australia had retained a high degree of control and direction in almost all
aspects of the bilateral transfer agreements. The authors also contend that Australia “procured”
and caused the creation of the Centre by requesting Nauru to host it and entering into the
memorandum of understanding. The Asylum Seekers (Regional Processing Centre) Act 2012
(Nauru) further establishes Australian practical participation and powers in the operations
and management of the Centre, including the Operational Manager, who has been given
responsibilities by the State party, and other officers who could be Australian. Australia has
sufficient ability under Nauruan law to determine the conditions at the Centre. The State party
is also involved in the practical management of operations and administration at the Centre
through contracts with service providers, such as security services. Australia also bears
administrative and other costs, and appoints a Programme Coordinator in Nauru assigned
under the Australian Department of Immigration and Border Protection to oversee the
management of all Australian officers at the Centre, with an office allocated at the Centre.
State party’s additional observations
6.1
On 31 July 2019, the State party submitted its observations, arguing that the complaint
should be considered inadmissible ratione materiae or as manifestly unfounded.
Alternatively, it should be considered without merits.
6.2
The claims that the authors’ detention in Australia violated articles 9 (1) and (4), 12
and 13 are not sufficiently substantiated, as they are not supported by any information about
7 Mohammed Alzery v. Sweden (CCPR/C/88/D/1416/2005), para. 11.3.
8 Concluding observations on the sixth periodic report of Australia (CCPR/C/AUS/CO/6), paras. 35
and 36.
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the authors’ circumstances during that period. The authors merely provided the dates of their
arrival on Christmas Island and transfer to Nauru. The authors’ further information and
annexes thereto are incapable of substantiating their claims.
6.3
The State party objects to the authors’ argument that “Australia’s policy of mandatory
immigration detention in Australian territory has been consistently found by this Committee
to be contrary to article 9 (1) of the Covenant”. The references to the Committee’s views do
not relate to the facts of the present authors’ interception at sea or their detention on Christmas
Island prior to their transfer to Nauru. The authors asserted that the Committee had
considered it “per se arbitrary to detain individuals requesting asylum”. That is a
mischaracterization. The State party notes that the Committee expressly rejected that
proposition in the case of A. v. Australia.9 The authors were detained on Christmas Island for
a period of between 2 and 12 months and no longer than was necessary to make the
assessments and arrangements for their transfer to the offshore Regional Processing Centre
in Nauru.
6.4
The State party also disagrees with the authors’ claims that their transfer to Nauru
violated the principle of non-refoulement, including articles 6 and 7. While “irreparable harm”
is not limited to violations of the right to life and freedom from torture,10 the State party
argues that the obligation of non-refoulement is not established in relation to rights other than
those under articles 6 and 7 of the Covenant,11 and that the authors in fact erroneously conflate
the obligation of non-refoulement with a separate issue of extraterritorial application of the
Covenant. 12 The authors’ further submissions also mischaracterize the non-refoulement
obligation in asserting that Australia had an ongoing obligation to assess human rights risks,
which continued after their transfer to Nauru. Such assertions are not supported by
international law, since the time for assessing the applicability of a non-refoulement
obligation is prior to, or at the time of, transfer of the individual.
6.5
As regards non-refoulement, the State party maintains that by transferring the authors
to Nauru, the authors’ rights, even as minors, were not violated. The background materials
on the asserted risks in the context of transfers to Nauru do not change that conclusion, as the
authors did not demonstrate that they were personally at risk of arbitrary deprivation of life,
torture or other ill-treatment as a necessary and foreseeable consequence of their transfer to
Nauru in 2014.
6.6
The State party also disagrees with the authors’ statement that Australia’s reliance on
Nauru’s undertakings in respect of human rights of transferees was “misplaced” because the
memorandum of understanding is not legally binding and “the value of any diplomatic
assurances is questionable”. It considers that diplomatic assurances are relevant to the
fulfilment of non-refoulement obligations, and that this position is consistent with
international law.13 Factors of assessment will include the content of the diplomatic assurance
and its reliability and credibility in the specific context of the individual in respect of whom
the assurance is sought.
6.7
As regards the authors’ circumstances in Nauru and the allegations concerning
jurisdiction or effective control, the State party reiterates that the authors’ treatment in Nauru
occurred outside Australian territory, pointing to the lack of jurisdiction, pursuant to article
2 (1) of the Covenant. Therefore, such claims should be considered inadmissible, in
accordance with article 3 of the Optional Protocol. It opposes the authors’ argument that its
approach to jurisdiction is “simplistic, outdated and contradicted” by the travaux
9 CCPR/C/59/D/560/1993, para. 9.3.
10 Human Rights Committee, general comment No. 31, para. 12.
11 See Judge v. Canada (CCPR/C/78/D/829/1998), individual opinion of Hipólito Solari-Yrigoyen.
12 The Committee’s views in Mohammad Munaf v. Romania (CCPR/C/96/D/1539/2006), para. 14.2,
A.R.J. v. Australia (CCPR/C/60/D/692/1996), para. 6.9, Judge v. Canada (CCPR/C/78/D/829/1998),
para. 10.6, and Alzery v. Sweden (CCPR/C/88/D/1416/2005), para. 11.3, do not support the contention
that Australia should be responsible for extraterritorial violations of the Covenant.
13 Alzery v. Sweden (CCPR/C/88/D/1416/2005), para. 11.3. See also Committee against Torture, Attia v.
Sweden (CAT/C/31/D/199/2002), para. 12.3; or Agiza v. Sweden (CAT/C/34/D/233/2003), para. 13.4.
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preparatoires, 14 the consistent practice of the Committee and other international
jurisprudence, and that its approach to the question of effective control is “unnecessarily
narrow and legalistic”. While the State party accepts that certain obligations under the
Covenant may apply extraterritorially, in the present circumstances Australia does not
exercise jurisdiction or effective control over the authors in Nauru, in law or in fact.
6.8
The State party disagrees that the regional processing arrangements in Nauru would
indicate that Australia exercises jurisdiction or effective control with respect to the Regional
Processing Centre. The provision of funding or other forms of assistance to Nauru does not
amount to an exercise of jurisdiction over the authors’ alleged treatment in Nauru and does
not establish the high degree of control over such matters that would be required for a State’s
human rights treaty obligations to apply extraterritorially. Nor does the presence of
Australian officers in Nauru, or the involvement of Australia in contracting service providers
equate to jurisdiction or effective control. As submitted, the involvement of Australia in the
Centre is based on the memorandum of understanding, which relies on the laws of Nauru to
regulate the status and detention of transferees. The authors’ conclusion that Australia has
the ability under Nauruan law to determine the conditions prevailing at the Nauru Regional
Processing Centre is inaccurate and does not follow from their analysis of the Asylum
Seekers (Regional Processing Centre) Act 2012 (Nauru). That an Australian official may
perform roles such as the Operational Manager is not relevant; it does not alter the fact that
the appointment of personnel to those positions, their powers and duties, and the operation
of the Centre more generally, are governed by Nauruan law and are within the jurisdiction
and control of the Government of Nauru.
6.9
The State party also responded to the claim that Australia may be jointly responsible
with Nauru for alleged violations occurring in Nauru, even if Australia did not exercise
effective control over the authors’ circumstances in Nauru. The authors invoked the articles
on responsibility of States for internationally wrongful acts, including article 6 (Conduct of
organs placed at the disposal of a State by another State). Since the authors’ claims do not
fulfil the requirements for the exercise of the Committee’s jurisdiction under the Covenant
and the Optional Protocol, the articles are not relevant; the scope of the Committee’s
jurisdiction cannot be augmented by reference to the articles. The authors have also held that
Australia will be liable for internationally wrongful acts which are properly attributable to it,
citing articles 16 to 18 of the articles.15 Referring to article 2 (1) of the Covenant, the State
party argues that articles 16 to 18 of the articles on responsibility of States for internationally
wrongful acts are not relevant insofar as the violations alleged did not occur within the State
party’s jurisdiction or territory, or under the State party’s effective control. The articles on
responsibility of States for internationally wrongful acts also do not alter the preconditions
for the Committee’s exercise of jurisdiction pursuant to the Optional Protocol (article 1).
Authors’ further comments
7.1
On 12 February 2020, the authors recalled that their detention in Australia involved
violations of their rights under articles 9 (1) and (4), 12 and 13 of the Covenant and that such
claims had been substantiated since the State party’s policy of mandatory detention in
Australian territory led to arbitrary detention.
7.2
They reassert that before a person is detained, there is no individualized assessment
as to the necessity, reasonableness and proportionality of such a measure to the aim of
ensuring effective operation of the State party’s migration system. While detention for
immigration control purposes is not arbitrary per se, detention based on a mandatory rule for
14 While not citing travaux preparatoires, the authors referred to the Committee’s views in Montero v.
Uruguay (CCPR/C/18/D/106/1981); Guillermo Waksman v. Uruguay (CCPR/C/OP/1),
communication No. 31/1978; Lopez Burgos v. Uruguay (CCPR/C/13/D/52/1979); Lilian Celiberti de
Casariego v. Uruguay (CCPR/C/13/D/56/1979); and Munaf v. Romania (CCPR/C/96/D/1539/2006),
para. 14.2. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136; and Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, p. 168.
15 See the Committee’s views in Sarma v. Sri Lanka, which included reference to article 7 of the articles
on responsibility of States for internationally wrongful acts, and the case of Hirsi Jamaa and others v.
Italy, in which the European Court of Human Rights considered the articles.
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a broad category is arbitrary.16 The Committee has reiterated its concerns about Australia’s
policy of mandatory detention in its recent concluding observations. 17 In its views, the
Committee found that the State party’s authorities had violated article 9 (1) of the Covenant,
as it had been unable to show that the author’s individual circumstances made it necessary to
detain the author at a point in time, because it had detained the individual pursuant to its
policy of mandatory detention, which did not permit individualized determination.18 The
State party’s assertion that the authors’ detention on Christmas Island was “no longer than
was necessary to make the required assessments and arrangements for their transfer to the
offshore Regional Processing Centre in Nauru” fails to identify, with any specificity, the
ways in which the authors’ detention was “no longer than was necessary”.
7.3
In addition, as regards the non-refoulement obligations under the Covenant, in its
case-law, the Committee has held admissible claims that a person transferred to a second
country could be subject to a violation of articles 9, 10 and 14 (1) and (3) of the Covenant by
the transferring State. 19 The authors dispute that they have mischaracterized the
non-refoulement obligation, noting that in relation to bilateral agreements for the transfer of
asylum-seekers between States, the Office of the United Nations High Commissioner for
Refugees (UNHCR) has stated that in the post-transfer context at a minimum, and regardless
of the arrangement, the transferring State remains, inter alia, subject to the obligation of
non-refoulement and may retain responsibility for other obligations arising under
international law. 20 Since the State party has effective control of the Nauru Regional
Processing Centre, it has an obligation to continually consider whether the authors are at risk
of irreparable harm in Nauru and in third countries. The authors also maintain that it was
inappropriate for the State party to rely on the diplomatic assurances agreed with Nauru, as
the Government of Australia was aware that there were substantial grounds for believing that
transferees would be at risk of irreparable harm if sent to the Centre. Referring to the
background information, the authors add that the Australian Human Rights Commission has
found that the assessment conducted by the State party’s authorities prior to sending specified
children to Nauru failed to take the best interests of children into account as a primary
consideration and that such assessments were inadequate.21
7.4
The authors’ claims that their transfer from Australia to the Nauru Regional
Processing Centre enlivened Australia’s obligations under articles 9 (1) and (4), 10 (1), 12,
13, 17 (1), 19 (2), 21, 23 (1), 24 (1) and 26 of the Covenant have been substantiated and
should therefore be considered admissible as compatible with the Covenant and article 3 of
the Optional Protocol.
7.5
In their view, the State party exercises effective control over the treatment of the
authors at the Nauru Regional Processing Centre or is otherwise jointly responsible with
Nauru for the treatment of the authors there. The State party’s requirement of a “high degree
of control” does not correspond to the Committee’s jurisprudence, and such test is more
stringent than “effective control”. While referring to the travaux preparatoires, the authors
hold that the States parties to the Covenant are responsible also for the violations committed
16 Human Rights Committee, general comment No. 35, para. 18. See also Shafiq v. Australia
(CCPR/C/88/D/1324/2004), para. 7.2.
17 CCPR/C/AUS/CO/6, para. 37.
18 A. v. Australia (CCPR/C/59/D/560/1993), para. 9.4; and Kwok v. Australia
(CCPR/C/97/D/1442/2005), para. 9.3.
19 G.T. v. Australia (CCPR/C/61/D/706/1996), paras. 7.5 and 8.7; A.R.J. v. Australia
(CCPR/C/60/D/692/1996), para. 6.6; and Munaf v. Romania (CCPR/C/96/D/1539/2006), paras. 7.5
and 8.
20 UNHCR, “Maritime interception operations and the processing of international protection claims:
legal standards and policy considerations with respect to extraterritorial processing”, Protection
Policy Paper, November 2010, para. 12.
21 See CRC/C/NRU/CO/1; Parliament of Australia, Senate Legal and Constitutional Affairs References
Committee, Serious Allegations of Abuse, Self-harm and Neglect of Asylum Seekers in Relation to the
Nauru Regional Processing Centre, and Any Like Allegations in Relation to the Manus Regional
Processing Centre (Canberra, 2017); and Australian Human Rights Commission, Ms. BK, Ms. CO
and Mr. DE on Behalf of Themselves v. Commonwealth of Australia (Department of Home Affairs):
Report into the Practice of the Australian Government of Sending to Nauru Families with Young
Children Who Arrived in Australia Seeking Asylum (2018).
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extraterritorially. The authors refer to the report of the Australian Senate Legal and
Constitutional Affairs References Committee of 2017, which corroborates that the
Government of Australia has effective control of the Nauru Regional Processing Centre.
They submit that the State party bears all costs associated with the operation of the Centre
and determines which individuals will be detained at the Centre. The State party engages all
major contractors at the Centre, and Nauru is not a party to any of those contracts. The State
party also directs and controls the major contractor, Transfield Services, which is responsible
for the operations of the Centre. According to the authors, the State party has also negotiated
resettlement options for refugees detained at the Nauru Regional Processing Centre with
other countries.
7.6
The authors also refer, among other things, to a submission by a group of prominent
international lawyers to the Prosecutor of the International Criminal Court in relation to
crimes against humanity committed with respect to indefinite mandatory offshore detention
and the forcible removal of asylum-seekers to Nauru by successive Australian Governments.
State party’s further observations
8.1
On 8 June 2021, the State party submitted its rejoinder.
8.2
As to the authors’ detention in Australia, the State party observes that the rights in
articles 12 and 13 of the Covenant are expressly limited to persons who are lawfully in the
territory of the State party, as determined under the domestic law of that State.22 The rights
under those articles are not applicable in cases of aliens who are unlawfully in the territory
of a State. As the authors did not hold valid visas to enter or remain in Australia (unlawful
non-citizens), articles 12 and 13 of the Covenant are not applicable to the case.
8.3
The State party does not consider the authors’ further arguments to substantiate the
claims that their detention in Australia involved violations of their rights under articles 9 (1)
and (4), 12 and 13 of the Covenant. The interdiction of the authors at sea, based on border
policies against illegal maritime arrivals, and their detention on Christmas Island prior to
their transfer to Nauru, were necessary, reasonable and proportionate in regard to the serious
risks associated with people-smuggling operations and the flow of illegal maritime ventures
to Australia. The authors’ immigration detention on Christmas Island accorded with
Australian immigration laws. As submitted, the authors were detained on Christmas Island
for a period of between 2 and 12 months, and no longer than was necessary to make the
required assessments and arrangements for their transfer to the Nauru Regional Processing
Centre. Transfer arrangements also include non-refoulement considerations, which can delay
the transfer of a person, resulting in detention pending transfer.
8.4
In regard to the Committee’s criticism of mandatory immigration detention in its
concluding observations of 2017,23 the authors have not submitted evidence to substantiate
that they personally experienced the use of force, poor conditions such as absence of
healthcare, or violence while detained on Christmas Island. Furthermore, the State party notes
that the cited previous case law of the Committee deals with different factual circumstances
than those of the authors, and recalls that it is not arbitrary per se to detain unauthorized
maritime arrivals upon interception and pending transfer to a regional processing country,
under article 9 (1) of the Covenant. As to the assessment of reasonableness and
proportionality, the authors did not face indefinite detention on Christmas Island, but a
potential settlement in Nauru or a third country. The State party understands that 3 of the
authors are currently settled in the community in Nauru, 16 have resettled in the United States
of America, and 5 were transferred to Australia for medical treatment. Moreover, the authors
did not substantiate that the detention of each author was longer than necessary and did not
submit evidence of individualized circumstances.
8.5
As regards the transfer of the authors to Nauru, the State party objects to the expansive
application of the non-refoulement obligation under the Covenant. The Committee has not
found such obligation to have been breached, except with respect to articles 6 and 7 of the
Covenant. Where it is asserted that non-refoulement applies in relation to other rights, the
22 Human Rights Committee, general comment No. 27, para. 4, and general comment No. 15, para. 9.
23 CCPR/C/AUS/CO/6, para. 37.
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Committee has consistently declined to express a view on that argument. The authors’
referred cases hence do not support their allegations.
8.6
As for the authors’ circumstances in Nauru, the State party objects to the notion that
its approach to jurisdiction would be contradicted by the travaux preparatoires, as no
arguments to substantiate such a claim have been provided. The scope of the procedural
protection afforded by the Optional Protocol cannot be wider than that of the substantive
protection by the Covenant, including when exceptionally exercising extraterritorial
jurisdiction due to effective control over territory or persons. Referring to Lopez Burgos v.
Uruguay, the State party argues that it does not exercise a high degree of control or authority
rising to the level of “effective control” over the authors in Nauru. The State party considers
the authors’ claims concerning their circumstances or treatment in Nauru to be inadmissible,
adding that the background reports submitted do not contain findings of fact pertaining to the
authors individually.
Issues and proceedings before the Committee
Consideration of admissibility
9.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
9.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of international
investigation or settlement.
9.3
The Committee notes that the State party has not objected to the exhaustion of all
available effective domestic remedies by the authors. Accordingly, the Committee considers
that it is not precluded from considering the authors’ claims by the requirements of
article 5 (2) (b) of the Optional Protocol.
9.4
As regards the authors’ claims of violations of their rights under articles 12 and 13 of
the Covenant while they were in detention on Christmas Island, the Committee considers that
the authors have not sufficiently substantiated that they were lawfully present in the territory
of the State party to be able to invoke those rights, as they were awaiting a determination of
their legal status and issuance of entry visas. At that time, they were considered unlawful
non-citizens by the State party. The Committee further considers that the authors’ claims of
violations of their rights under articles 10 (1), 17, 19 (2), 21, 23 (1), 24 (1) and 26 by the State
party on its territory have not been specific and supported by adequate facts and evidence
and have therefore been insufficiently substantiated; such claims are hence declared
inadmissible, under article 2 of the Optional Protocol.
9.5
In addition, the Committee notes the State party’s objection that the authors’ claims
with regard to the conditions of their detention in Nauru should be considered inadmissible
ratione loci, as the authors have not been under the jurisdiction or effective control of the
State party; the Regional Processing Centre has been governed by the laws of Nauru; and the
Nauruan authorities have been taking decisions on the authors’ asylum or refugee status,
which attests to the exercise of jurisdiction by the authorities of Nauru. The Committee notes
that the authors have been recognized by Nauru as refugees and were granted residence
permits in Nauru in September 2014. In that context, the Committee notes the authors’ claims
that their transfer to Nauru was effectuated based on the State party’s migration laws and the
memorandum of understanding of 3 August 2013,24 which had delegated parts of the State
party’s authority to Nauru, also evidenced by the deployment of the State party’s service
contractors and personnel to facilitate processing of asylum applications through the
Regional Processing Centre in Nauru. Alternatively, the authors have argued that the State
party failed to exercise due diligence to prevent the violations of the authors’ rights when in
detention in Nauru; that the State party’s obligations under the Covenant have continued to
apply extraterritorially to the authors after their removal to Nauru; and that the State party
and Nauru bear shared responsibility for unlawful conduct that would amount to an
24 See footnote 2.
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internationally wrongful act under the articles on the responsibility of States for
internationally wrongful acts.
9.6
The Committee further notes the State party’s objection that it has not exercised a
level of control over the Nauru Regional Processing Centre that would amount to the exercise
of jurisdiction or effective control by the State party, and that the authors have not
substantiated prima facie that Australia exercises effective control of Nauru or is otherwise
jointly responsible or has the obligation of due diligence alleged. The Committee notes that
the authors were transferred to Nauru in 201425 by the State party, pursuant to the section
198AD of the Migration Act 1958 and the memorandum of understanding of 3 August 2013,
and that they were placed in immigration detention in the Regional Processing Centre in
Nauru. The Committee considers that the authors’ placement in detention in Nauru, pending
the processing of their protection claims, was a necessary and foreseeable consequence of
the transfer of the authors by the State party.
9.7
In addition, the Committee notes that the arrangements in the memorandum of
understanding of 2013 authorized the State party to exercise significant involvement in the
detention operations in Nauru, in coordination with the Nauruan authorities. The Committee
observes that the authors have pointed to the State party’s effective control over them by way
of its influence over Nauruan law, and the management and operations of the Regional
Processing Centre. The authors have argued that the State party contributed to the drafting of
the legislation of Nauru establishing the Centre. The authors have also referred to a
monitoring visit by the United Nations High Commissioner for Refugees to Nauru in October
2013, during which he observed that Australia had retained a high degree of control and
direction in almost all aspects of the bilateral transfer agreements. The authors have also
contended that the State party “procured” and caused the creation of the Centre by requesting
Nauru to host it and entering into the memorandum of understanding. Moreover, the authors
have submitted that the State party has sufficient ability under Nauruan law to determine the
conditions at the Centre, and that the State party carries out the practical management of
operations and administration at the Centre through contracts with service providers, such as
the security services that monitored the authors’ movements. The Committee notes the
authors’ argument that the Asylum Seekers (Regional Processing Centre) Act 2012 (Nauru)
established the authority of the State party to participate in the operations and management
of the Centre, including the appointment of the Operational Manager in Nauru26 and other
officers carrying out the responsibilities of the State party (see para. 5.7 above). The
Committee further observes that several public background reports have shown that the State
party bears administrative, service and other costs of the Centre.27
9.8
In addition, the Committee observes that pursuant to the Australian Senate
Committees’ reports of 201528 and 2017,29 the State party’s authorities arranged for the
construction and establishment of the Regional Processing Centre in Nauru and contributed
to its operation through financing, hiring staff who were accountable to the State party, and
management. Consequently, the Australian Senate suggested that the Government of
Australia acknowledge that it controls the Regional Processing Centre in Nauru. In 2016, the
State party’s National Audit Office reported that to underpin operations at the processing
centres in Nauru and Papua New Guinea, the Department of Immigration and Border
Protection entered into contracts for the delivery of garrison support and/or welfare services
with a number of providers. Garrison support included security, cleaning and catering
25 At different dates over several months.
26 The Operational Manager is assigned under the Australian Department of Immigration and Border
Protection to oversee the management of all Australian officers at the Regional Processing Centre,
with an office allocated at the Centre.
27 Mona Nabhari v. Australia (CCPR/C/142/D/3663/2019), paras. 7.7–7.14.
28 Parliament of Australia, Senate Select Committee on the recent allegations relating to conditions and
circumstances at the Regional Processing Centre in Nauru, Taking Responsibility: Conditions and
Circumstances at Australia’s Regional Processing Centre in Nauru,” (Canberra, 2015), paras. 2.9 and
2.175.
29 See Parliament of Australia, Senate Legal and Constitutional Affairs References Committee, Serious
allegations of abuse, self-harm and neglect of asylum seekers.
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services. Welfare services included individualized care to maintain health and well-being,
such as recreational and educational activities.30
9.9
The Committee recalls paragraph 12 of its general comment No. 31 (2004) on the
nature of the general legal obligation imposed on States parties to the Covenant, which
defines the principle of “power 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 be taken to
a regional processing country, either Nauru or 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, selected companies which would be
responsible (directly or through subcontractors) for construction, security, garrison, health
and other services at the detention centre, and provided police services to Nauru to help
manage the detention operations. In 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 Regional Processing Centre in Nauru amounted to such effective control
during the period of 2014 when the authors were detained at the Centre. The Committee also
considers that those elements of control went beyond a general situation of dependence and
support, and that the transfer of the authors to Nauru did not extinguish the State party’s
obligations towards them under article 9 of the Covenant.31 The Committee considers that
while they were detained at the Nauru Regional Processing Centre, the authors were subject
to the jurisdiction of the State party.32 Therefore, the Committee considers that article 2 of
the Covenant and article 1 of the Optional Protocol do not pose an obstacle ratione loci to
the admissibility of the authors’ claim under article 9 of the Covenant in relation to their
detention at the Nauru Regional Processing Centre.
9.10
As regards the authors’ claims of violations of their rights under articles 10 (1), 17,
19 (2), 21, 23 (1), 24 (1) and 26 by the State party when in detention in the Regional
Processing Centre in Nauru, the Committee considers that those claims are not specific and
have not been supported by adequate facts and evidence; they have therefore been
insufficiently substantiated. Such claims are hence declared inadmissible under article 2 of
the Optional Protocol.
9.11
The Committee considers that the authors have sufficiently substantiated their claims
under article 9 (1) and (4) of the Covenant in the context of their immigration detention on
Christmas Island and in the Nauru Regional Processing Centre as under the jurisdiction of
the State party,33 as well as their claims under article 7 in relation to their fear of being
indefinitely detained in Nauru in unacceptable conditions, and declares those claims
admissible pursuant to article 2 of the Optional Protocol.
9.12
The Committee accordingly decides that the part of communication raising claims
under articles 7 and 9 (1) and (4) of the Covenant is admissible, and proceeds with its
examination on the merits.
Consideration of the merits
10.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
10.2
The Committee notes that the authors arrived on Christmas Island between mid-2013
and early 2014. With regard to the authors’ claims under article 9 (1) of the Covenant, the
Committee notes the allegation that their immigration detention on Christmas Island was
arbitrary and unreasonably prolonged and that the conditions of detention and facilities on
Christmas Island were inadequate for their needs. The Committee notes the State party’s
argument that the authors’ detention occurred in accordance with procedures established by
30 Australia, Department of Immigration and Border Protection, Australian National Audit Office,
Offshore Processing Centres in Nauru and Papua New Guinea: Procurement of Garrison Support
and Welfare Services (Canberra, 2016), p. 7.
31 CCPR/C/AUS/CO/6, paras. 35 and 36.
32 See, for example, Mona Nabhari v. Australia (CCPR/C/142/D/3663/2019), para. 7.15.
33 CCPR/C/AUS/CO/6, paras. 37 and 38.
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the Migration Act and that their detention was as short as possible and regularly reviewed on
an individual basis.
10.3
The Committee also notes that the authors do not argue that their detention on
Christmas Island was unlawful under Australian law. At the same time, the notion of
arbitrariness is not to be equated with “against the law”, but must be interpreted more broadly
to include elements of inappropriateness, injustice and lack of predictability and due process
of law. Detention in the course of proceedings for the control of immigration is not arbitrary
per se, but detention must be justified as being reasonable, necessary and proportionate in the
light of the circumstances and reassessed as it extends in time. The decision must consider
relevant factors case by case, and not be based on a mandatory rule for a broad category;
must take into account less invasive means of achieving the same ends, such as reporting
obligations, sureties or other conditions to prevent absconding; and must be subject to
periodic re-evaluation and judicial review.34
10.4
In addition, the Committee recalls paragraph 18 of its general comment No. 35 (2014)
on liberty and security of person, in which it stated that children should not be deprived of
liberty, except as a measure of last resort and for the shortest appropriate period of time,
taking into account their best interests as a primary consideration with regard to the duration
and conditions of detention, and also taking into account the extreme vulnerability and need
for care of unaccompanied minors.35 The Committee recalls that the authors were intercepted
and brought to Christmas Island in 2013 and 2014 as unaccompanied minors. In accordance
with the national policy at the time, they were all placed in immigration detention. They spent
between 2 and 12 months in immigration detention before being transferred to the Nauru
Regional Processing Centre in 2014. The Committee considers that the State party has not
demonstrated on an individual basis that the authors’ uninterrupted and protracted detention
was justified for an extended period of time. The State party has also not demonstrated that
other less intrusive measures could not have achieved the same end of compliance with the
State party’s need to ensure that the authors would be available for removal. Specifically, it
has not been shown that the authors, who were minors at the time, could not have been
transferred, for example, to community detention centres on the mainland, which are more
tailored to meet the specific needs of vulnerable individuals. For all these reasons, the
Committee concludes that placing the authors, as unaccompanied minors, in immigration
detention on Christmas Island was arbitrary and contrary to article 9 (1) of the Covenant.
10.5
The Committee also notes the authors’ claims that they did not have any effective
domestic remedy to challenge the legality of their detention before domestic courts, contrary
to requirements of article 9 (4) of the Covenant. The Committee notes the State party’s
argument that the authors’ arguments were not specific and that they had access to a judicial
review of the legality of their detention in accordance with domestic law.
10.6
The Committee recalls that judicial review of the lawfulness of detention under
article 9 (4) is not limited to mere compliance of the detention with domestic law, but must
include the possibility to order release if the detention is incompatible with the requirements
of the Covenant, in particular those of article 9 (1). The Committee further recalls its previous
jurisprudence concerning review of the detention of non-citizens without valid entry
documentation in Australia. 36 In particular, it previously established that the scope of
domestic judicial review of immigration detention was insufficiently broad to examine an
individual’s detention in substantive terms. The State party has not provided relevant legal
precedents showing the effectiveness of an application before the national courts in similar
situations. Moreover, it has not demonstrated the availability of this remedy for the authors
and has not shown that national courts have the authority to make individualized rulings on
34 A.K. et al. v. Australia (CCPR/C/132/D/2365/2014), para. 8.4.
35 Moreover, in its concluding observations on the sixth periodic report of Australia
(CCPR/C/AUS/CO/6, para. 37), the Committee expressed its 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, as well as the continued application of mandatory detention in respect of children and
unaccompanied minors, despite the reduction in the number of children in immigration detention.
36 F.K.A.G. et al. v. Australia (CCPR/C/108/D/2094/2011), para. 9.6. See also F.J. et al. v. Australia
(CCPR/C/116/D/2233/2013), para. 10.4.
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the justification for each author’s detention. Recalling its jurisprudence, the Committee
therefore considers that the facts in the present case also involve a violation of article 9 (4)
of the Covenant.
10.7
As regards article 7 of the Covenant, the Committee notes the authors’ claim that the
State party did not respect its non-refoulement obligations and has exposed them to the effects
of unacceptable detention conditions at the Nauru Regional Processing Centre, the indefinite
nature of the detention and the uncertainty surrounding their fate, which have amounted to
cruel, inhuman or degrading treatment or punishment. The authors have also asserted that the
State party had an ongoing obligation to assess human rights risks, which continued after
their transfer to Nauru.37 The Committee notes the State party’s objection that the authors’
claims under article 7 are inadmissible ratione materiae and insufficiently substantiated, as
the authors have not supported with evidence the existence of a real risk of irreparable harm
after their transfer, pursuant to article 2 of the Optional Protocol. The State party has argued
that the officers of the Department of Immigration and Border Protection performed
assessments of the personal circumstances of each author before their transfer to Nauru, in
the context of pre-transfer assessment, which concluded objectively that there was no
foreseeable and real risk of irreparable harm under article 7. The State party added that as the
assessments concerned unaccompanied minors, they were conducted in the presence of an
independent observer; the recommendation to transfer to Nauru was reviewable by a senior
official; and the pre-transfer assessments also considered whether the authors had made any
protection claims against Nauru and if any of them had special circumstances to mitigate
transfer, in line with the best interests of the child. The State party considers the authors’
transfer to Nauru legally permissible and in accordance with the undertakings of Nauru in
the memorandum of understanding, including the diplomatic assurances that the authors’
rights would be respected.
10.8
Furthermore, the Committee notes the authors’ response that the State party has not
specified which special circumstances would have mitigated their transfer to Nauru; that the
State party’s pre-transfer assessments were not subject to an independent review; and that
they were exposed to substandard living conditions in the Nauru Regional Processing Centre,
in which their health and well-being had started to deteriorate (see para. 5.5 above).
10.9
The Committee recalls that, in paragraph 12 of its general comment No. 31 (2004) on
the nature of the general legal obligation imposed on States parties to the Covenant, it referred
to the obligation of States parties not to extradite, deport, expel or otherwise remove a person
from their territory where there were substantial grounds for believing that there was a real
risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant. The
Committee has indicated that the risk must be personal and that there is a high threshold for
providing substantial grounds to establish that a real risk of irreparable harm exists. The
Committee recalls that it is generally for the organs of States parties to examine the facts and
evidence of the case in question in order to determine whether such a risk exists, unless it can
be established that the assessment was clearly arbitrary or amounted to a manifest error or
denial of justice.38
10.10 As regards the claims of a violation of non-refoulement obligations by transferring
the authors to Nauru, the Committee observes that the State party’s immigration authorities
considered individual claims by the authors. The Committee considers that while the authors
generally disagree with the conclusions of the pre-transfer assessments, they have not
supported with evidence that such assessments by the State party’s authorities were clearly
arbitrary or amounted to a manifest error or a denial of justice. The Committee hence finds
that the authors did not establish that they were personally at risk of arbitrary deprivation of
life, torture or other ill-treatment, which would have amounted to an irreparable harm as a
necessary and foreseeable consequence of their transfer to Nauru in 2014. Accordingly, the
Committee concludes that the available information does not disclose that the authors’
transfer to Nauru amounted to a violation of article 7 of the Covenant.
37 The authors added that the State party also had an obligation to assess a risk that the authors would be
found not to be owed protection as refugees.
38 V.K. v. Australia (CCPR/C/140/D/3129/2018), para. 9.5.
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10.11 As regards the authors’ claims under article 9 (1) and (4) of the Covenant due to their
detention conditions in the Regional Processing Centre in Nauru and lack of access to a
judicial remedy to seek a decision on the legality of their detention and to be released if the
detention is found to be unlawful, the Committee notes that the State party limited its
observations to the arguments of inadmissibility of such claims ratione loci. In that regard,
the State party asserted that it lacked jurisdiction or effective control over the authors when
they were in the Nauru Regional Processing Centre. It is undisputed that the sole reason for
the authors’ administrative detention in Nauru was their unauthorized entry into Australia,
by irregular maritime means, as asylum-seekers. Given the background reports on mandatory
immigration detention, without an individualized assessment, including whether less
restrictive measures were appropriate, the prevalence of an unsafe environment, including
violence,39 overcrowding and prison-like conditions, and the absence of opportunity for the
authors, as unaccompanied minors, to appeal such decision on mandatory immigration
detention, the Committee considers that the authors were detained arbitrarily in violation of
their rights under article 9 (1) and (4) of the Covenant while they were in detention in the
Nauru Regional Processing Centre.
11.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the facts before it disclose a violation by the State party of article 9 (1) and (4) of the Covenant.
12.
Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to
provide the authors with an effective remedy. This requires it to make full reparation to
individuals whose Covenant rights have been violated. Accordingly, the State party is
obligated to provide adequate compensation to the authors for the violations suffered during
the periods of their detention on Christmas Island and in the Regional Processing Centre in
Nauru. The State party is also under an obligation to take all steps necessary to prevent similar
violations from occurring in the future. In this connection, the State party should review and
modify its migration legislation and policies and any bilateral offshore transfer arrangements
for migrants as to their content, implementation and monitoring, to ensure their conformity
with the requirements of the Covenant, including article 9.
13.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party
has recognized the competence of the Committee to determine whether there has been a
violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has
undertaken to ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective remedy when it has been
determined that a violation has occurred, the Committee wishes to receive from the State
party, within 180 days, information about the measures taken to give effect to the
Committee’s Views. The State party is also requested to publish the present Views and to
have them widely disseminated in the language of the State party.
39 CCPR/C/AUS/CO/6, paras. 35 and 36.