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.25-00302 (E) 220125 220125
Human Rights Committee
Views adopted by the Committee under article 5 (4) of the
Optional Protocol, concerning communication
No. 3663/2019*,**,***
Communication submitted by:
Mona Nabhari, represented by counsel, Alison
Battisson, of Human Rights for All
Alleged victim:
The author
State party:
Australia
Date of communication:
9 October 2019 (initial submission)
Document references:
Decision taken pursuant to rules 92 and 94 of the
Committee’s rules of procedure, transmitted to
the State party on 25 October 2019 (not issued in
document form)
Date of adoption of Views:
25 October 2024
Subject matter:
Immigration detention in Australia and Nauru;
bilateral offshore arrangement for the transfer
and processing of migrants
Procedural issues:
Exhaustion of domestic remedies; ratione loci;
ratione materiae; same matter; substantiation of
claims; victim status
Substantive issues:
Administrative detention; arbitrary
arrest/detention; arbitrary/unlawful interference;
family rights
Articles of the Covenant:
9 (1), 17 (1) and 23 (1)
Articles of the Optional Protocol:
1, 2, 3 and 5 (2) (a) and (b)
1.1
The author of the communication is Mona Nabhari, a national of the Islamic Republic
of Iran born in 1986. She alleges that the State party has violated her rights under articles 9 (1),
* 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, Laurence R. Helfer, Marcia V.J. Kran, Bacre Waly Ndiaye, Hernán Quezada
Cabrera, José Manuel Santos Pais, Soh Changrok, Tijana Šurlan, Kobauyah Tchamdja Kpatcha,
Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.
*** An individual opinion (partially dissenting) by Committee member Hélène Tigroudja is annexed to
the present Views.
United Nations
CCPR/C/142/D/3663/2019
International Covenant on
Civil and Political Rights
Distr.: General
22 January 2025
Original: English
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17 (1) and 23 (1) of the Covenant.1 The Optional Protocol entered into force for Australia on
25 December 1991. The author is represented by counsel.
1.2
On 25 October 2019, pursuant to rule 94 of its rules of procedure and acting through
its Special Rapporteurs on new communications and interim measures, the Committee
requested the State party to immediately release the author from closed detention and to take
all necessary measures to prevent physical or psychological irreparable harm to her, in
particular with respect to separation from family members under the State party’s jurisdiction,
while the case was being examined.
1.3
On 4 November 2019, the State party transferred the author and her husband to
community detention. They currently reside in the community in Melbourne. The State party
maintains that the author has accessed mental health services and community medical
practitioners who were able to monitor her well-being.
Factual background
2.1
In 2012, the State party signed memorandums of understanding with Nauru and Papua
New Guinea. Under those bilateral accords, Nauru and Papua New Guinea agreed to serve
as regional (offshore) processing countries for the protection claims of individuals who had
arrived in Australia by boat without authorization. In July 2013, the State party began sending
all asylum-seekers who arrived by boat without authorization to either Nauru or Papua New
Guinea. Those individuals would not be permitted to apply for asylum in Australia or be
permanently resettled in Australia.2 On 3 August 2013, the State party signed an updated
memorandum of understanding with Nauru concerning the same matter. Nauru agreed to
enable transferees who it determined required international protection to settle in Nauru,
subject to an agreement with Australia regarding arrangements and numbers. Transferees
who could not be settled in Nauru would be transferred to a third safe country, with the
assistance of Australia.
2.2
On 19 August 2013, the author arrived by boat on Christmas Island, a territory of the
State party, in the company of her husband, stepfather, stepsister and male cousin. They did
not have valid visas. The State party’s authorities detained the author and her husband on
Christmas Island under section 189 (3) of the Migration Act 1958.
2.3
On 11 March 2014, the author and her husband were transferred to Nauru under
section 198AD of the Migration Act 1958. The author states that upon arrival, they were
detained at the Regional Processing Centre. On 28 April 2017, the authorities of Nauru
recognized the author as a refugee.
2.4
On 22 May 2018, the author was admitted to a support accommodation area in Nauru,
where she received healthcare services. She states that while she was there, on 7 June 2018,
she harmed herself by hitting her head against a wall. On 17 June 2018, she was discharged.
She maintains that in July 2018, she reported to a psychologist that guards had grabbed her
hand, twisted it behind her back and threatened to call the police if she did not behave.3
2.5
On 20 November 2018, the author and her husband were transferred from Nauru to
an immigration detention facility on mainland Australia, following the author’s request for
specialist medical treatment for tinnitus, vertigo and mental health issues. Transitory persons
brought to Australia from Nauru for a temporary purpose are held in immigration detention
under section 189 of the Migration Act 1958, unless they are granted a visa or are released
into the community owing to the discretionary intervention of the Minister of Immigration
and Border Protection. Section 196 (3) of the Migration Act 1958 provides that even a court
cannot release an unlawful non-citizen from detention unless the person has been granted a
visa.
1 The author cites article 21 (1) of the Covenant but quotes the text of article 23 (1) of the Covenant. It
is therefore presumed that she intended to invoke the latter provision.
2 Sect. 198AB of the Migration Act 1958.
3 The author provided a report of a clinical nurse, dated 24 December 2018, in which the nurse reported
the author’s statements to that effect.
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2.6
On 4 March 2019, the author and her husband were transferred to an immigration
facility in Adelaide owing to capacity issues at their previous accommodation. In early 2019,
the author’s stepsister, who was a minor, and the author’s stepfather were placed in a
Melbourne community after being transferred to Australia for medical reasons.
2.7
Section 197AB of the Migration Act 1958 permits qualifying individuals to be
released from immigration detention and placed in the community. The Minister of
Immigration and Border Protection is not obligated to release qualifying individuals under
that section and is not required to provide reasons for decisions. On 31 March 2019, the
Minister for Immigration and Border Protection declined to exercise his discretionary power
to enable the author and her husband to reside in the community in Brisbane. Having
considered all of the relevant factors, the Minister did not consider that it was in the public
interest to exercise his discretionary power.
2.8
On 1 May 2019, the author requested to be transferred from Adelaide to Melbourne.
On 7 May 2019, she and her husband were transferred to Melbourne. The author asserts that
the transfer was executed because of capacity issues. The State party maintains that the
transfer was also executed because the author’s stepfather and stepsister were in Melbourne
and the authorities had taken into account her family ties and the benefit that her transfer
would have for her mental health.
2.9
Thereafter, the author and her husband were asked whether they would be willing to
share their accommodation (a three-bedroom unit) with other detainees, owing to capacity
issues. They declined to do so. Thus, on 30 May 2019, they were transferred to Melbourne
Immigration Transit Accommodation facility, where they were initially housed in different
rooms in the same building. On 31 July 2019, they were placed together in the same
accommodation in a facility in Melbourne consisting of 10 townhouse-style units which were
fitted with full kitchens.
2.10
On 18 July 2019, the author’s case was again referred for assessment under
section 197AB of the Migration Act 1958. On 29 October 2019, the Minister for Immigration
and Border Protection intervened to allow the author and her husband to reside in the
community under a residence determination in Melbourne. They were therefore transitioned
to community detention on 4 November 2019 and are currently living in the community in
Melbourne.
2.11
The author states that she has experienced psychological and physical health issues
since her detention in Nauru. Those problems include back pain, knee pain, a chronic
infection of her left ear, digestive issues and subclinical hypothyroidism. She was given
hormonal medication for polycystic ovarian disease but states that she did not receive
adequate care for that condition for a long period. The author maintains that her health
deteriorated significantly during her subsequent detention in Australia, even though she had
been transferred there to receive medical treatment for vertigo and mental health problems.
She suffers from anxiety, detention fatigue, insomnia, stress and hypervigilance.
2.12
The author has stated that she feels ready to die because she has no rights and doesn’t
feel human anymore. She states that she feels frustrated that she has spent five of the six
years of her marriage in detention and has been separated from her stepsister and stepfather
since their placement in community detention.
2.13
According to various medical records provided by the author, in 2018 and 2019 she
suffered from various psychological difficulties. In a medical assessment form dated 14 July
2018, a clinician reported that the author was living in a tent in Regional Processing Centre 3.
In a statement dated 9 November 2018, a psychiatrist reported the author’s statement that she
and her husband had been placed in the community a few months earlier. In a medical record
of 27 August 2018, a psychologist reported that the author and her husband were moving into
community housing on that date. In a record of 29 August 2018, a psychologist who treated
the author reported that she and her husband had transitioned to community housing a few
days earlier, having been offered housing in the area of Anibare Ponds.
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Complaint
3.1
The author submits that the State party has violated her rights under articles 9 (1),
17 (1) and 23 (1) of the Covenant. She is administratively detained under section 189 of the
Migration Act 1958, under which so-called “unlawful non-citizens” must be detained until
they are removed or receive a visa. The removal of the author would constitute refoulement,
and the author is not eligible for a visa because she is subject to the regional processing
arrangement between Australia and Nauru.
3.2
In violation of article 9 (1) of the Covenant, the State party’s authorities have failed
to provide individualized justifications for administratively detaining the author despite the
fact that she was granted refugee status in Nauru in 2017. Section 195A of the Migration Act
1958 authorizes the Minister for Immigration and Border Protection to grant a visa to a person
in immigration detention, on a discretionary basis and in certain circumstances. The author
could also be released from a closed detention facility through the residence determination
procedure set forth under section 197AB of the Migration Act. Her application for such
discretionary release was rejected for undisclosed reasons.
3.3
The length of the author’s detention has not been reasonable, necessary or
proportionate. She has been detained for more than six years. She cannot challenge the
lawfulness of her detention before a judicial authority. It is expressly stated in the Migration
Act 1958 that even a court may not release an unlawful non-citizen from detention unless
that person has been granted a visa. The High Court of Australia has found that the mandatory
detention of non-citizens does not violate the Constitution of Australia.4
3.4
In an annexed statement, the author claims that the State party controls, both in law
and in fact, asylum-seekers whom it has transported to Papua New Guinea and Nauru and
who are detained in those countries. 5 The State party funds the facilities where
asylum-seekers in those countries are housed. The facilities are staffed by employees of
companies which have contracted with the State party to provide garrison, security,
construction, health and other services. The State party also provides capacity-building
support to those countries. A number of officials of the State party are present in those
countries to manage the centres on a day-to-day basis. Locals of Nauru have complained
about the lack of control they have over the detention centres and the lack of knowledge they
have of the contract provisions between the Department of Immigration and Border
Protection and its contract service providers. The present role of the Government of Nauru
in operating those detention centres is unclear.
3.5
Although the author is not detained pursuant to a criminal sentence, her detention has
nonetheless been punitive. She has committed no crime and presents no danger. The
criminalization of her act of seeking refuge in Australia is unfounded. It exceeds any
legitimate interest of the State party in protecting its people and regulating migratory flows.
3.6
In addition, the separation of the author from her family, especially her stepsister,
violates her rights under articles 17 (1) and 23 (1) of the Covenant.
State party’s observations on admissibility and the merits
4.1
In its observations of 27 August 2020, the State party explains that its border
protection policy was implemented in response to a dramatic increase in the number of people
attempting to migrate to Australia, without authorization and by boat, between 2008 and 2013.
During that period, more than 1,200 people drowned while attempting to reach Australia on
small and often unseaworthy vessels. Under the policy, unauthorized maritime arrivals are
returned to their departure points or homes or are transferred to a regional processing country.
They will thus not settle permanently in Australia. Consistent with the Migration Act 1958,
unauthorized maritime arrivals arriving in Australia after 13 August 2012 have been taken to
a regional processing country, either Papua New Guinea or Nauru, to have their protection
4 High Court of Australia, Al-Kateb v. Godwin (2004) 219 CLR 562.
5 Australia, Australian Senate, “Review into recent allegations relating to conditions and circumstances
at the Regional Processing Centre in Nauru”, part 2 (6 February 2015); and Office of the United Nations
High Commissioner for Refugees (UNHCR), “Monitoring visit to the Republic of Nauru, 7–9 October
2013” (2013).
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claims assessed. The policies have succeeded in stemming the flow of boats, disrupting the
people-smuggling business model and preventing loss of life at sea. Since December 2013,
there have been no known deaths at sea as a result of people smuggling.
4.2
The State party works closely with the Government of Nauru to support the provision
of health, welfare and support services, including extensive physical and mental healthcare,
free community accommodation and utilities, and allowances, to transitory persons. There
are no restrictions on the movement of transitory persons in Nauru. The health and welfare
of transitory persons is of paramount importance to both Governments. The State party has
contracted professionally trained and experienced service providers to support Nauru in
meeting the health needs of refugees and asylum-seekers. The State party provides extensive
related details.
4.3
The author’s claims relating to arbitrary detention in Nauru are inadmissible under
article 2 (1) of the Covenant and article 1 of the Optional Protocol, because they relate to
conduct that occurred outside of the territory and jurisdiction of Australia. The State party
does not exercise effective control in Nauru. Nauru is a sovereign State with jurisdiction over
the regional processing arrangements and individuals within their territory. The State party
expands upon this argument in detail. Two elements would be required to establish a State’s
responsibility for a wrongful act: the act must be attributable to the State and must breach an
international obligation of the State.6 The treatment of the author in Nauru is not attributable
to the State party. Moreover, the threshold that must be met for a State to have directed or
controlled the conduct of private entities is very high.7 The State would have had to have
effective control over the activities or operations in the course of which the alleged violations
were committed.8 In addition, the instructions, direction or control must relate to the conduct
which is said to have amounted to an internationally wrongful act.9 That is, even a general
situation of dependence and support is insufficient to justify attribution to the conduct of
State. Once individuals are transferred to Nauru pursuant to the memorandum of
understanding, the Government of Nauru has responsibility for them. Such transfers cannot
occur without the consent of the Government of Nauru. While the State party may in certain
circumstances provide support to the Government of Nauru, it is only to give effect to the
formal arrangements.
4.4
The author’s claims with respect to her detention and family rights are also
inadmissible and meritless because they are not sufficiently substantiated. The author’s
detention was lawful. She stated that she was held for a period of six years but did not state
which period or periods of detention were the subject of her allegations. She provided only
brief assertions, without supporting evidence or analysis. Her detention was lawful under
sections 189, 198AD, 198B (1) and 189 (1) of the Migration Act 1958.10 She was an unlawful
non-citizen who had entered the State party’s territory without a valid visa.
4.5
The author’s detention was reasonable, necessary, proportionate to legitimate aims
and subject to regular review, which included consideration of whether less restrictive
alternatives were available. There is no rule that detention for a particular length of time is
necessarily arbitrary. The determining factor is not the length of the detention but rather the
justification of the grounds for detention. The aims served by the author’s detention on
6 Articles on responsibility of States for internationally wrongful acts (General Assembly
resolution 56/83, annex), art. 2; and United States Diplomatic and Consular Staff in Tehran, Judgment,
I.C.J. Reports 1980, p. 3, para. 29.
7 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, I.C.J. Reports 1986, p. 14.
8 Ibid., para. 86.
9 Articles on responsibility of States for internationally wrongful acts, para. 7.
10 Under sect. 189 (1) of the Migration Act, if an officer knows or reasonably suspects that a person in the
migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain
that person. Under sect. 198AD of the Migration Act, an officer must, as soon as reasonably practicable,
take an unauthorized maritime arrival to a regional processing centre. Under sect. 198B (1) of the
Migration Act, an officer may, for a temporary purpose (including medical assessment or treatment),
bring a transitory person to Australia from a country or place outside Australia. Each transfer is assessed
on a case-by-case basis and, where applicable, consideration of the need for family or other support
persons is also considered as part of the process.
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Christmas Island were to stem the flow of people-smuggling ventures, prevent people from
risking their lives on dangerous boat journeys to Australia, stop unnecessary deaths at sea,
disrupt people-smuggling operations in the region, prevent unlawful non-citizens from
entering the Australian community after travelling to Australia by irregular means, ensure
that the author was available for transfer to a regional processing country and remained
available for transfer once she was no longer required to be in Australia for the temporary
purpose, ensure the integrity of Australia’s migration programme and assess the identity and
security risk of unlawful non-citizens. The author’s detention on Christmas Island from
19 August 2013 to 11 March 2014 was for the shortest period possible while she awaited
transfer to a regional processing country. She was transferred as soon as practicable once the
availability of accommodation and services in the processing country were confirmed. Her
place of detention was chosen based on several factors, including the safety of both the author
and the Australian community, the capacity of facilities in the immigration detention network
and the suitability of the accommodation to the author’s medical and other needs. She was
housed on Christmas Island in accommodation that was an alternative to a place of detention.
Her detention was reviewed by, for example, department officers under individual
management plans. Her detention was also subject to welfare oversight measures, which were
conducted at least seven times between 5 October 2013 and 18 February 2014.
4.6
The author’s detention on mainland Australia from 20 November 2018 to 4 November
2019 also complied with article 9 of the Covenant. She was transferred to and detained in
Australia for the temporary purpose of receiving medical treatment. Her presence in Australia
was not intended to be permanent. Transitory persons are required to return to a regional
processing country upon the completion of the temporary purpose for which they were
transferred to Australia. Her places of detention were chosen based on the same factors as
for her detention on Christmas Island. Her detention became less intrusive over time and was
reviewed in early 2019. She was transferred to a facility to accommodate her medical needs
in Australia, and then to Melbourne to accommodate her request of 1 May 2019 and in
recognition of her family ties and health assessments that she would benefit from family
support. Within Melbourne, she was transferred between facilities to accommodate her
preference to live in a room separately from her husband, rather than share a three-bedroom
unit with her husband and another person. Finally, she was released into the community.
4.7
While the author maintains that she could have been released earlier on a discretionary
basis, the relevant laws and guidelines do not require such release. The Department of
Immigration and Border Protection conducts formal monthly reviews in an effort to resolve
the status of persons held in detention. The purpose of the reviews is to ensure, inter alia, that
the detention remains lawful and reasonable. If the detention is no longer appropriate to an
individual’s circumstances, or if there are identified vulnerabilities, the case may be referred
for discretionary consideration by the Minister for Immigration and Border Protection. There
is no legal requirement to refer the case to the Minister, and the Minister is not required to
release the individual or provide reasons for a decision not to release a person into the
community.
4.8
Detention of an unlawful non-citizen is not inconsistent per se with article 9 of the
Covenant. Individualized assessments were conducted as to the appropriateness of the
author’s immigration detention, including the length and conditions of detention and the
appropriateness of both accommodation and services provided. The State party has the right
to decide whom it will admit to its territory. The Covenant provides significant scope for
States parties to enforce their immigration policies and require departure of unlawfully
present persons.
4.9
The author may challenge the lawfulness of her detention before a court. She could
seek judicial review of her detention under section 75 (v) of the Australian Constitution,
which provides that the High Court has original jurisdiction in relation to every matter where
a writ of mandamus, prohibition or injunction is sought against an officer of the
Commonwealth. She could also file a writ of habeas corpus before a court. Under section 256
of the Migration Act 1958, the Department of Immigration and Border Protection must
provide to immigration detainees all reasonable facilities to take legal proceedings in relation
to their immigration detention.
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4.10
The author did not explain how any of the alleged facts constituted a violation of
articles 17 or 23 of the Covenant. The brief factual assertions that her counsel provided do
not substantiate those claims. Her stepfather and stepsister are not family within the meaning
of the State party’s migration legislation,11 and the author has not substantiated that they are
family within the meaning of articles 17 or 23 of the Covenant, nor that any separation
constituted interference by the State party, nor that it was unlawful or arbitrary. The facts do
not support any such claims. The State party’s laws prioritize consideration of the nuclear
family (spouses/partners and families with minor children). The State party also considers,
where appropriate, the unity of families consisting of adult siblings or adult children who are
not dependants. However, the State party is entitled to afford nuclear families a greater level
of protection in accordance with its obligations under the Covenant. Any interference in
non-nuclear families is likely to involve a much lower level of hardship than for nuclear
families. During her detention, the author was with her husband. Although they were
separated for a period of two months, that did not constitute interference, nor was it unlawful
or arbitrary. They now reside together in the community in Melbourne, where the author’s
stepsister and stepfather live.12
Author’s comments on the State party’s observations on admissibility and the merits
5.1
In her comments of 11 January 2021, the author clarifies that the communication does
not concern any period from 4 November 2019 onwards, as she was released from detention
on that date.
5.2
In other cases, the Working Group on Arbitrary Detention has considered that
Australia and regional processing countries bear joint responsibility for migrants in a similar
situation to that of the author.13 She was deported to a remote island from which she could
not leave.
5.3
The State party’s laws permit arbitrary detention. The quality of accommodation at
one of the author’s places of detention on mainland Australia does not address the fact that
she could not leave it.
5.4
With respect to articles 17 and 23 of the Covenant, it may be argued that stepfamily
members who have been involved in an individual’s life for a significant period are family.
That is the case for the author. There is no reason why she could not have been brought to
Melbourne immediately after being evacuated from Nauru.
5.5
As an alternative to detaining asylum-seekers in Nauru, the State party could use other
means of managing them in an orderly manner. For example, the State party could fly them
from Indonesia and Malaysia to Australia. A small island of 21 km2, Nauru is not a durable
settlement solution. It is heavily impacted by climate change, its fish stocks are depleted, and
sea level rise threatens its existence. One of the largest contributors to the economy of Nauru
is the detention centre itself. The centre is unlikely to employ the author, and she is unlikely
to work there given her negative experiences there. While she may have been able to move
around the island at times, she could not leave it. It was an island prison.
State party’s further observations on the admissibility and merits
6.
In its further observations of 10 June 2021 the State party reiterates that the author’s
claims under the Covenant are not sufficiently specified and are without merit. The State
party disagrees with the findings of the Working Group on Arbitrary Detention in its opinion
No. 20/2018, in which it did not apply the high standard that must be met in order to establish
that a State may be considered to exercise effective control abroad.14 In the memorandum of
understanding, the Government of Nauru assured the State party that persons transferred to
Nauru would be treated in accordance with relevant human rights standards. Nauru is meeting
that commitment. The size of Nauru has no bearing on whether it constitutes a durable
settlement solution. The author’s claim that Nauru is an island prison is unclear. Her assertion
11 Australia, Migration Regulations 1994, regulations 1.05A and 1.12.
12 The State party expands at length on its arguments in relation to articles 9, 17 and 23 of the Covenant.
13 See A/HRC/WGAD/2018/21.
14 See para. 4.3 of the present document.
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that the State party did not consider her personal circumstances in detaining her is incorrect
for the reasons previously mentioned. Regarding relevant policy objectives, since December
2013, in the State party’s waters there have been no known deaths at sea resulting from people
smuggling.
Issues and proceedings before the Committee
Consideration of admissibility
7.1
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.
7.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not currently being examined under another procedure of
international investigation or settlement.
7.3
Article 5 (2) (b) of the Optional Protocol requires that authors avail themselves of all
effective and available domestic remedies before submitting a communication to the
Committee.15 The Committee recalls its jurisprudence that although there is no obligation to
exhaust domestic remedies if they have no chance of being successful, authors of
communications must exercise due diligence in the pursuit of available remedies, and mere
doubts or assumptions about their effectiveness do not absolve the authors from exhausting
them.16 The State party maintains that the author could have challenged her detention before
a court by applying for a writ of mandamus under section 75 (v) of the Constitution, or for a
writ of habeas corpus. The Committee observes that it has not been demonstrated that either
of those remedies was available and effective to challenge the author’s detention in Nauru.
The Committee also observes that the State party’s Migration Act 1958 required the detention
and removal from Australia of “unlawful non-citizens”, and that the exceptions under which
such an individual may be released from detention did not apply to the author. The
Committee observes that according to the jurisprudence of the High Court which applied at
the time of the detention of the author in the present case (Al-Kateb v. Godwin), indefinite
detention of an unlawful non-citizen who could not be deported was lawful.17 The Committee
also recalls that when the highest domestic court has ruled on the matter in dispute in a
manner eliminating any prospect that a remedy before domestic courts may succeed, authors
are not obliged to exhaust domestic remedies for the purposes of the Optional Protocol.18 In
its previous jurisprudence, the Committee stated that the possibility that Australia’s highest
court could someday overrule its precedent upholding indefinite detention of unlawful
non-citizens did not suffice to indicate the availability of an effective remedy. 19 The
Committee also previously established, regarding review of detention of non-citizens without
valid entry documentation in Australia, that the scope of domestic judicial review of
immigration detention was insufficiently broad to examine an individual’s detention in
substantive terms.20 Similarly, in the present case, the Committee considers that the State
party has not demonstrated that the courts in Nauru or Australia had the authority to make an
individualized ruling on the justification for the author’s detention.21 In the light of the above
circumstances, the Committee considers that the author’s failure to apply for a writ of
mandamus or habeas corpus to challenge her detention does not constitute an obstacle under
article 5 (2) (b) of the Optional Protocol to the admissibility of the communication.
7.4
The Committee notes the State party’s position that the communication is
inadmissible because it is insufficiently substantiated. With respect to the author’s claim that
15 See, for example, Falzon v. Australia (CCPR/C/140/D/3646/2019), para. 6.3.
16 See, for example, M.L. v. Croatia (CCPR/C/127/D/2505/2014), para. 6.6.
17 See High Court of Australia, Al-Kateb v. Godwin.
18 See, for example, X et al. v. Greece (CCPR/C/126/D/2701/2015), para. 8.5.
19 F.K.A.G. et al. v. Australia (CCPR/C/108/D/2094/2011), para. 8.4; and F.J. et al. v. Australia
(CCPR/C/116/D/2233/2013), para. 9.3.
20 F.K.A.G. et al. v. Australia (CCPR/C/108/D/2094/2011), para. 9.6; A.K. et al. v. Australia
(CCPR/C/132/D/2365/2014), para. 8.7; and F.J. et al. v. Australia (CCPR/C/116/D/2233/2013),
para. 10.5.
21 See A.K. et al. v. Australia (CCPR/C/132/D/2365/2014), para. 7.3.
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her family rights under articles 17 and 23 (1) of the Covenant were violated when she was
separated from her stepsister, stepfather and male cousin, the Committee notes the State
party’s information that the author was not separated from her husband while on Christmas
Island, Nauru and mainland Australia. At an unspecified time, the author’s stepsister and
stepfather were transferred from Nauru to mainland Australia for medical reasons. Following
the author’s request of 1 May 2019 for transfer to Melbourne, where her stepfather and
stepsister were residing, she was transferred to Melbourne on 7 May 2019 and was released
with her husband into community detention in November 2019. The Committee also
considers that the author has not provided sufficient elements to establish the applicability of
articles 17 or 23 (1) of the Covenant, and that those claims are therefore insufficiently
substantiated and are inadmissible under article 2 of the Optional Protocol.
7.5
The Committee notes the State party’s position that the author’s claim under
article 9 (1) of the Covenant is inadmissible with respect to her detention in Nauru because
Nauru is a sovereign State over which the State party does not exercise jurisdiction or
effective control. The Committee recalls its position that under article 1 of the Optional
Protocol, it has the competence to receive and consider communications from individuals
subject to the jurisdiction of States parties. States parties are required by article 2 (1) of the
Covenant to respect and to ensure the Covenant rights to all persons who might be within
their territory and to all persons subject to their jurisdiction. That means that a State party
must respect and ensure the rights laid down in the Covenant to anyone within the power or
effective control of that State party, even if not situated within the territory of the State
party.22 This is in line with the travaux préparatoires to the Covenant, which indicate that
the drafters did not intend to allow States parties to escape from their obligations when they
exercise jurisdiction outside of their national territory. 23 Moreover, enjoyment of most
Covenant rights must be available to both citizens and aliens. 24 A State party may be
responsible for extraterritorial violations of the Covenant in cases such as those involving
extradition or deportation, if extradition or deportation is a link in the causal chain that would
make possible violations in another jurisdiction, where the risk of an extraterritorial violation
is a necessary and foreseeable consequence judged based on the knowledge the State party
had at the time.25
7.6
The Committee proceeds to assess whether the author was within the power or
effective control of the State party when she was detained in Nauru. In 2014, pursuant to
domestic laws and a bilateral agreement, the State party transferred the author from Australia
to the custody of the authorities in Nauru, where she was immediately detained in a regional
processing centre.26 Her transfer to Nauru was required by the State party’s laws. In a
memorandum of understanding of 3 August 2013, Australia and Nauru agreed that Nauru
would accept to host transferees, either at a regional processing centre or under
community-based arrangements and would provide them with settlement opportunities (in
Nauru or in a third safe country) if they required international protection. The Committee
considers that the author’s initial placement in detention in Nauru was a necessary and
foreseeable consequence of the State party’s transfer of the author, at a minimum during the
processing of her asylum claim.
7.7
In evaluating whether the State party had effective control over the conduct of the
detention operations in Nauru, the Committee notes that the formal arrangements authorized
the State party to exercise significant involvement. In the memorandum of understanding of
2013, it was stated that the two Governments would communicate regarding the day-to-day
operation of activities undertaken in accordance with the memorandum and would establish
22 General comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties
to the Covenant, para. 10. See also A.S. v. Malta (CCPR/C/130/D/3042/2017), para. 7.4; and D.O. et
al. v. Russian Federation (CCPR/C/139/D/2871/2016), para. 8.4.
23 E/CN.4/SR.194, para. 46; and Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136, para. 109.
24 General comment No. 15 (1986) on the position of aliens under the Covenant, paras. 1 and 2.
25 Lopez Burgos v. Uruguay (CCPR/C/13/D/52/1979), para. 12.2; and A.S. et al. v. Italy
(CCPR/C/130/D/3042/2017), para. 7.5, citing Munaf v. Romania (CCPR/C/96/D/1539/2006),
para. 14.2.
26 The Committee has recourse to official information published by both Governments.
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a joint committee to oversee related practical arrangements.27 According to the memorandum,
the State party also maintained the ability to jointly decide with Nauru which individuals
required international protection to settle in Nauru,28 and would assist Nauru in removing
those who were found not to require such protection.29 The Committee notes the State party’s
observation that its courts have found that Nauru, not the State party, is responsible for the
treatment of detainees in offshore processing facilities.30 Nevertheless, the Committee notes
that under section 198AHA of the Migration Act 1958, the State party’s authorities may take,
or cause to be taken, any action in relation to the arrangement or the regional processing
functions of a country with which it has entered into a regional processing arrangement. In
addition, 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.
Under rule 3.1 of the Regional Processing Centre Rules 2016, all persons residing at the
Centre shall, at all times, comply with all reasonable orders and directions from an
Operational Manager or a service provider that are in the interests of the safety, good order
and maintenance of the Centre. According to the definitions set forth in section 3 of the
Asylum-Seekers (Regional Processing Centre) Act, the Operational Manager is the person
who has been given responsibility by Australia or by a Minister of Nauru for managing
operations at the Centre. The Act also defines a “service provider” as a body that has been
engaged by Nauru or Australia to provide services of any kind at a regional processing centre
or in relation to protected persons. Rule 11.5 of the Regional Processing Centre Rules 2016
stipulates that all breaches of the rules of the Centre will be brought to the attention of the
Operational Managers. Accordingly, the law in Nauru permitted the State party to direct and
oversee operations at the place where the author was detained for over four years.
7.8
In practice, on an operational level, the State party acknowledges that it supports the
provision of accommodation, health and social services, utilities and allowances to
“transitory persons” in Nauru. The Committee observes that various additional factors, as
reported in official documents made available to the public, indicate that the State party was
in fact significantly involved in the detention operations in Nauru while the author was
detained there from 2014 to 2018. For example, according to a report published in 2015 by a
Committee of the Australian Senate, the State party’s authorities arranged for the
construction and establishment of the Regional Processing Centre, hired contractors (who
were accountable to the State party) to operate and manage it, controlled the delivery of
services and the provision of infrastructure there, maintained a permanent staff presence there,
had the power to cause or prevent any act or decision to be made there, and applied for the
visas which were required for asylum-seekers to stay in Nauru.31 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 includes security, cleaning and catering services. Welfare
services include individualized care to maintain health and well-being, such as recreational
and educational activities.32
7.9
The Committee observes that while those contracts may have been with private
entities, such entities were empowered by the State party – through the processing
arrangements – to exercise elements of governmental authority in the detention centre. For
27 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,
paras. 21 and 22.
28 Ibid., para. 12.
29 Ibid., para. 14.
30 High Court of Australia, Plaintiff M68/2015 v. Minister for Immigration and Border Protection and
Ors (2016), HCA 1, paras. 102 et seq.
31 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,
2.175 and 1.202.
32 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.
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example, according to the Australian National Audit Office, in August 2012, a private
company approached Australia’s Department of Immigration and Border Protection to
enquire if it could assist in its operations in Nauru. In September 2012, the company began
providing garrison (operational and maintenance) services in the Regional Processing Centre
in Nauru.33 The company subcontracted to a private security company in Australia, which
agreed to provide security guards to the Centre until October 2017.34 The security company
was responsible, inter alia, for conducting a security risk assessment for each transferee,
providing an induction for them, referring them for medical attention when needed,
proactively managing issues relating to transferees as they arose, transporting them when
needed, controlling entry to the centre,35 ensuring that personnel levels at the centre were
adequate, and engaging with the local community to employ local personnel or subcontract
local businesses.36 Moreover, it appears that the State party’s authorities still maintained
supervision over the Centre. In 2015, the Australian Senate was informed that Nauruan
managers of the Centre had stated that they were not sufficiently informed about day-to-day
matters at the Centre because service providers reported directly to the State party’s
Department of Immigration and Border Protection.37
7.10
The Committee takes note of reports that the State party provided capacity-building
and training to the authorities in Nauru with respect to the detention operations. For example,
when the author arrived in Nauru, the then-Commissioner of the Nauru Police Force was an
officer who had been seconded from the Australian Federal Police; he was removed in July
2014.38 When announcing the opening of the Regional Processing Centre on 5 October 2015,
the State party noted that it had “supported the Government of Nauru in making the open
centre arrangements possible by funding service providers and sharing Australian expertise
with Nauruan law enforcement agencies”.39
7.11
Regarding the financing of the detention operations, the Committee also notes that the
State party agreed to bear all costs incurred under and incidental to the 2013 memorandum
of understanding with Nauru.40 In addition, during the years in which the author was detained
in Nauru, the State party had contracts for the provision of accommodation to transferred
migrants with a company owned by the Government of Nauru;41 had contracts with private
entities for managing construction, garrison and welfare services in Nauru;42 stated that it
was financing the medical assessment and treatment services required by transferees in
Nauru;43 paid fees of A$1,000 per month per person for visas for transferees and refugees in
33 Ibid., paras. 2.20–2.28 and table 2.2.
34 Subcontract agreement on general terms and conditions in relation to the provision of services on the
Republic of Nauru between Transfield Services and Wilson Security, dated 2 September 2013,
available at https://www.homeaffairs.gov.au/foi/files/2011-2014/FA140300149.PDF.
35 Ibid., annexure 8, paras. 2.4.7, 2.4.9, 2.5.2, 2.5.6, 4.1 and 5.10.
36 Ibid., annexure 8, para. 1.2.
37 Parliament of Australia, Senate Select Committee, Taking Responsibility, para. 2.11.
38 Ibid, para. 2.35.
39 Australia, “Australia welcomes Nauru open centre”, media release, 5 October 2015.
40 Memorandum of understanding, para. 6.
41 Nauru, Minister of Finance, “2014–15 budget – budget paper 2”, p. 8, available at
https://naurufinance.info/wp-content/uploads/2020/08/Budget-Paper-2-2014-15-Final.pdf.
42 Contract notice identification Nos. CN1078292, CN2826282 and CN3460561, www.tenders.gov.au;
and Parliament of Australia, Senate Select Committee, “Taking Responsibility”, paras. 2.9 and
2.170–2.172.
43 Australia, Department of Home Affairs, “Statement on temporary medical transfer policy from regional
processing countries”, 19 November 2019, available at https://www.homeaffairs.gov.au/news-
media/archive/article?itemId=315.
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Nauru from 2013 to 2015;44 and was said to owe Nauru A$2.8 million for leasing the land on
which the Centre was located from 2012 to 2014.45
7.12
The Committee also notes that in 2017, the Legal and Constitutional Affairs
References Committee of the Australian Senate stated the following in a report on Nauru:
First and foremost, the Australian Government must acknowledge that it controls
Australia’s [regional processing centres]. Through the [Department of Immigration
and Border Protection], the Australian Government pays for all associated costs,
engages all major contractors, owns all the major assets, and (to date) has been
responsible for negotiating all third country resettlement options. Additionally, the
[D]epartment is the final decision-maker for approving the provision of specialist
health services and medical transfers (including medical evacuations) and the
development of policies and procedures which relate to the operation of the [regional
processing centres]. Incident reports are also provided to the [D]epartment, so it
cannot claim that it was not aware of incidents that occurred in [regional processing
centres] outside of Australia. The Australian Government clearly has a duty of care in
relation to the asylum-seekers who have been transferred to Nauru or Papua New
Guinea. To suggest otherwise is fiction.46
7.13
The Committee further notes that Australia’s funding of the detention centres
represented one of the primary sources of revenue for Nauru during the relevant time period
and was a generator of significant economic growth in Nauru. 47 In 2014 and 2015, concern
was expressed about the possible impact of a decrease in the number of arriving
asylum-seekers on the medium- to long-term economic growth prospects of Nauru.
7.14
In addition, the Committee notes that under section 42 of the Australian Border Force
Act 2015, entrusted persons, including employees and subcontractors for the Department of
Immigration and Border Protection, are, with certain exceptions, subject to two years of
imprisonment for the crime of recording and disclosing information of the Department. That
information includes information the disclosure of which would or could reasonably be
expected to prejudice the security, defence or international relations of Australia. The
Committee therefore observes that the State party has enacted laws intended to regulate the
flow of information concerning regional processing detention operations in Nauru.
7.15
In sum, the Committee observes that the State party transferred the author to Nauru
pursuant to section 198AD of the Migration Act 1958 and the arrangements set out in a
memorandum of understanding. The State party funded the detention operations in Nauru,
was authorized to 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 in the paragraphs
above, the Committee considers that the State party exercised numerous elements of effective
control over the detention operations at the Regional Processing Centre in Nauru while the
author was detained there from 2014 to 2018. The Committee considers that those elements
of control went beyond a general situation of dependence and support, and that the physical
transfer of the author to Nauru did not extinguish the State party’s obligations towards her
under article 9 of the Covenant. The Committee considers that while she was detained at the
centre, the author was subject to the jurisdiction of the State party, and that the fact of her
44 Parliament of Australia, Senate Select Committee, Taking Responsibility, para. 2.175; Nauru, Minister
of Finance “2013–14 budget – budget paper 2”, p. 7, available at https://naurufinance.info/wp-
content/uploads/2020/08/Budget-Paper-2-2013-14_12Sept2013_Final-Draft-9PM.pdf;
and
Nauru,
Minister of Finance, “2014–15 budget – budget paper 2”, p. 4.
45 Nauru, Minister of Finance, “2013–14 budget and the estimates of revenue expenditure – budget paper
1”, p. 10, available at https://naurufinance.info/wp-content/uploads/2020/08/Budget-Paper-1-2013-14-
13Sept2013-12PM-3.pdf.
46 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), p. vi.
47 See, for example, Nauru, Minister of Finance, “2014–15 budget – budget paper 2”, pp. 35 and 36.
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detention there is attributable to the State party. Accordingly, 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 author’s claim under article 9 of the Covenant in relation to
her detention at the Regional Processing Centre.
7.16
The Committee notes the State party’s assertion that there are no restrictions on
movement of individuals at the Regional Processing Centre in Nauru. In that regard, the
Committee notes that according to information published by the Government of the State
party, from February to October 2015, asylum-seekers and refugees at the Centre could leave
at a designated exit point during agreed hours.48 Since October 2015, the centre has been
open 24 hours a day.49 The Committee considers that for the purpose of article 9 (1) of the
Covenant, the extent of restrictions on movement in an officially designated place of
detention may be relevant to the reasonableness and proportionality of the detention but does
not alter the fact of detention. Thus, the Committee considers that the opening of the Centre
in 2015 does not constitute an obstacle under articles 1 or 2 of the Optional Protocol to the
admissibility of the author’s claim under article 9 (1) of the Covenant in relation to her
detention at the centre.
7.17
The Committee considers that the author has not sufficiently substantiated her
assertion that she was detained in Nauru during the period when she was settled in the
community and living in a house in Nauru. The documentation she provided indicates that
on 27 August 2018, she and her husband left the Regional Processing Centre and were moved
into a community settlement in the area of Anibare Ponds (see para. 2.13 above). Thus, from
27 August 2018 until 20 November 2018, the date on which the author left Nauru, she was
not in a detention centre. With respect to the author’s claim that Nauru was an island prison,
regardless of her individual conditions of detention, the Committee considers that she has not
described with adequate specificity her living situation after her release from the Regional
Processing Centre in Nauru. The Committee considers that that aspect of her claim under
article 9 (1) of the Covenant is therefore insufficiently substantiated and is inadmissible under
article 2 of the Optional Protocol.
7.18
In the Committee’s view, the author has sufficiently substantiated, for the purpose of
admissibility, her claim under article 9 (1) of the Covenant in relation to the periods during
which she was detained on Christmas Island, in the Regional Processing Centre in Nauru and
on mainland Australia until 4 November 2019. The Committee thus declares those aspects
of the author’s claim under article 9 (1) of the Covenant admissible and proceeds to examine
them on the merits.50
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, as provided for under article 5 (1) of the Optional Protocol.
8.2
The Committee notes the author’s claim that the State party arbitrarily detained her in
violation of article 9 (1) of the Covenant, pursuant to its policy of detaining migrants arriving
by sea without authorization to enter Australia. It also notes the State party’s position that the
author was lawfully detained in Australia, that the period of that detention was reasonable
and proportionate and served a legitimate purpose, and that the State party was not
responsible for the author’s detention in Nauru.
8.3
The Committee refers to its general comment No. 35 (2014) on liberty and security of
person, in which it stated that an arrest or detention may be authorized by domestic law and
nonetheless be arbitrary (para. 12). Detention in the course of proceedings for the control of
48 Australia, “Australia welcomes Nauru open centre”.
49 Ibid.; and Nauru, Asylum-Seekers (Regional Processing Centre) (Amendment) Act 2015, sect. 8,
relating to amendment of section 18C of the Asylum-Seekers (Regional Processing Act) 2012.
50 The Committee notes that in additional comments of 30 June 2021, the author invoked articles 2 (1),
9 (4), 10 (1), 16 and 26 of the Covenant, and the State party subsequently raised a procedural objection
on 7 October 2021, noting that the author had not sought and obtained prior permission from the
Committee to submit those additional comments, as required by the Committee’s rules of procedures.
The Committee notes that because the author did not seek such permission and explain why those
claims could not have been raised earlier, the Committee may not examine them.
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immigration is not arbitrary per se, but must be justified as being reasonable, necessary and
proportionate in the light of the circumstances and reassessed as it extends in time.
Asylum-seekers who unlawfully enter a State party’s territory may be detained for a brief
initial period in order to document their entry, record their claims and determine their identity
if it is in doubt. To detain them further while their claims are being resolved would be
arbitrary in the absence of particular reasons specific to the individual, such as an
individualized likelihood of absconding, a danger of crimes against others or a risk of acts
against national security. The decision of detention must consider relevant factors on an
individualized basis; must 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 (para. 18).51
8.4
The Committee notes that when the author arrived by boat on Christmas Island to seek
asylum, the State party detained her for more than seven months (19 July 2013–10 March
2014), pursuant to section 189 (3) of the Migration Action 1958. After the State party
transferred the author to Nauru, she was detained in the Regional Processing Centre from
11 March 2014 until 27 August 2018 and was then moved to a community settlement. Thus,
in total, the author spent over four years and five months detained in Nauru. Upon transferring
her to mainland Australia for medical reasons, the State party detained her for approximately
11 and a half months in various detention facilities (20 November 2018–4 November 2019).
8.5
The Committee therefore observes that the author was not detained for a brief initial
period to document her entry or verify her identity, but rather was held for approximately
one and a half years in Australia and under the State party’s mandatory immigration detention
policy, and for more than four years in Nauru, including for several months after she obtained
refugee status in 2017. It is undisputed that the sole reason for the author’s administrative
detention in Australia and Nauru was her unauthorized entry into Australia, by irregular
maritime means, as an asylum claimant.
8.6
While the State party argues that it considered the author’s individual needs in
determining appropriate and successively less restrictive 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 author of her liberty for such a protracted
period of time, taking into account her prolonged detention in Nauru. The Committee notes
that before releasing the author into the community in 2019, the State party had not explained
any reason specific to the author for continuing to detain her. For example, the State party
has not indicated that it had determined that the author posed a risk to public security, public
order or safety, or a risk of absconding. Indeed, the State party has noted that under domestic
law, the Minister for Immigration and Border Protection was not required to provide
individualized reasons before declining in March 2019 to grant the author an alternative to
detention under section 197AB of the Migration Act. The State party also did not demonstrate
that a less restrictive measure could not have ensured the author’s availability for removal.
The State party has also not indicated why it did not transfer the author earlier to community
detention, in particular given the refugee status granted to her in Nauru in 2017.
8.7
Whatever justification there may have been for an initial detention, such as for
purposes of ascertaining identity and other issues, the State party has not, in the Committee’s
view, demonstrated on an individual basis that the author’s prolonged and indefinite
detention was justified. The Committee also notes that the author lacked legal safeguards
allowing her to effectively challenge her indefinite detention.52 In view of the foregoing
elements, the Committee considers that the author’s detention for approximately six years in
Nauru and Australia was unreasonable, unnecessary and disproportionate to the State party’s
policy objectives. 53 The Committee therefore considers that the State party arbitrarily
detained the author in violation of article 9 (1) of the Covenant.
51 See also A.K. et al. v. Australia (CCPR/C/132/D/2365/2014), para. 8.4.
52 See F.J. et al. v. Australia (CCPR/C/116/D/2233/2013), para. 10.4; and F.K.A.G. et al. v. Australia
(CCPR/C/108/D/2094/2011), para. 9.4.
53 See A v. Australia (CCPR/C/59/D/560/1993), para. 9.4.
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15
9.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the State party has violated the author’s rights under article 9 (1) of the Covenant.
10.
Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to
provide the author 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 the author with adequate compensation for the periods of her detention
on Christmas Island, in the Regional Processing Centre in Nauru and on mainland Australia
until 4 November 2019. 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.
11.
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.
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Annex
Individual opinion (partially dissenting) by Committee member Hélène
Tigroudja
1.
I fully agree with the general conclusion reached by the Committee in the present case
on the admissibility of the claims, on the merits and on the remedies. Nevertheless, my
individual opinion aims at stressing some crucial elements regarding the effective control of
Australia over offshore detention facilities in Nauru (para. 7.5 et seq.) and the guarantees of
non-repetition decided by the Committee (para. 10), which go far beyond the present case
and address a cynical and concerning trend of migration policies in many States parties to the
Covenant.
2.
On the first point (effective control of Australia over the detention of the author in
Nauru), the argument used by the State party to challenge its jurisdiction was based on
Nauru’s sovereignty over its territory and on the fact that both States freely concluded a
memorandum of understanding organizing the transfer to and detention of asylum-seekers in
Nauru. However, as clearly stated by the Committee (para. 7.8), the detention operations
were heavily controlled, supplied, funded and supported by Australian authorities. Some
private security companies were involved in the process, but their activities remained under
the control of the State party (para. 7.9). The Committee’s analysis of the offshore policy of
Australia raises two comments.
3.
First, the Committee relied on public information made available by the Australian
authorities themselves, that clearly acknowledged that they were the “decision-makers” in
Nauru (para. 7.12). Second, the Committee also made an extremely careful and realistic
analysis of the economic dimension of this sort of agreement. As stated in paragraph 7.13:
…Australia’s funding of the detention centres represented one of the primary sources
of revenue for Nauru during the relevant time period and was a generator of significant
economic growth in Nauru. In 2014 and 2015, concern was expressed about the
possible impact of a decrease in the number of arriving asylum-seekers on the
medium- to long-term economic growth prospects of Nauru.
4.
This conclusion on the jurisdictional link between Australia and the offshore detention
centres in Nauru conveys a clear message to all States parties to the Covenant that are
concluding or wish to conclude such deals and “externalize” the treatment of asylum-seekers’
requests for protection: such agreements might fall under the jurisdiction of the Committee
and the States might be held accountable under the Covenant. This was already conveyed by
the Committee in its concluding observations regarding Australia (2017)1 and more recently
regarding the United Kingdom of Great Britain and Northern Ireland (2024). In the latter
concluding observations, the Committee expressed its deep concern over the so-called
“Rwanda Bill” and the efforts of the United Kingdom to make arrangements with third
countries to transport individuals seeking asylum to such countries, particularly through the
memorandum of understanding between the United Kingdom and Rwanda”.2 The Bill has
been repealed since then, but some European States expressed their willingness to follow the
same kind of framework. Therefore, the present Views of the Committee are an important
and timely reminder that such offshore policies do not render the States immune from their
international responsibility under the human rights treaties they freely committed to respect.
5.
This leads me to the second important element regarding the measures indicated by
the Committee in the Views as a guarantee of non-repetition. In paragraph 10, it is affirmed
that “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
1 CCPR/C/AUS/CO/6, paras. 35 and 36.
2 CCPR/C/GBR/CO/8, para. 40.
CCPR/C/142/D/3663/2019
GE.25-00302
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monitoring, to ensure their conformity with the requirements of the Covenant, including
article 9”.
6.
This conclusion is in line with the concerns expressed by the Office of the
United Nations High Commissioner for Refugees, which indicated indeed that “offshoring
of asylum processing often results in the forced transfer of refugees to other countries with
inadequate State asylum systems, treatment standards and resources”.3
7.
Therefore, should States parties to the Covenant, such as Australia, the United
Kingdom or any European Union State, decide to keep on concluding similar memorandums
of understanding for their so called “externalization of borders” policy in exchange for
financial support, they remain accountable for human rights violations that would occur in
the third country under those agreements.
3 See https://www.unhcr.org/au/publications/externalisation.