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.26-06087 (E) 070526 080526
Human Rights Committee
Views adopted by the Committee under the Optional
Protocol, concerning communication No. 3813/2020*, **, ***
Communication submitted by:
Mirand Pjetri (represented by counsel,
Alison Battisson)
Alleged victim:
The author
State Party:
Australia
Date of communication:
27 August 2020 (initial submission)
Document references:
Decisions taken pursuant to rules 92 and 94 of
the Committee’s rules of procedure, transmitted
to the State Party on 9 September 2020 (not
issued in document form)
Date of adoption of views:
12 March 2026
Subject matter:
Protracted immigration detention
Procedural issue:
Level of substantiation of claims
Substantive issues:
Right to life; torture; cruel, inhuman or
degrading treatment or punishment; arbitrary
arrest or detention; conditions of detention;
discrimination on grounds of nationality
Articles of the Covenant:
6, 7, 9, 10 and 26
Articles of the Optional Protocol:
1 and 2
1.1
The author of the communication is Mirand Pjetri, a national of Albania born in 1989.
The author claims a violation by the State Party of his rights under articles 6, 7, 9, 10 and 26
of the Covenant. 1 The Optional Protocol entered into force for the State Party on
25 December 1991. The author is represented by counsel.
* Adopted by the Committee at its 145th session (2–19 March 2026).
** The following members of the Committee participated in the examination of the communication:
Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,
Carlos Ramón Fernández Liesa, Laurence R. Helfer, Konstantin Korkelia, Dalia Leinarte, Bacre Waly
Ndiaye, Hernán Quezada Cabrera, Akmal Saidov, Ivan Šimonović, Soh Changrok, Tijana Šurlan,
Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.
*** A joint opinion by Committee members Yvonne Donders and Tijana Šurlan (partially dissenting) and
an individual opinion by Committee member Hélène Tigroudja (partially dissenting) are annexed to
the present Views.
1 On 7 May 2021, the Working Group on Arbitrary Detention adopted opinion No. 17/2021, in which it
set out its view that the author’s detention was arbitrary. The Working Group considered that the
United Nations
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International Covenant on
Civil and Political Rights
Distr.: General
8 May 2026
Original: English
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1.2
On 9 September 2020, pursuant to rule 94 of its rules of procedure, the Committee,
acting through its Special Rapporteurs on new communications and interim measures,
requested the State Party to provide the necessary healthcare to protect the life of the author;
reassess the justification for his removal from the State Party in the light of his condition, the
information provided in the communication and international human rights standards; assess
the conditions of the author’s detention and the need for continuing the detention of the author
until a final decision about his status was taken; and provide the author with clarifications
about the plans concerning his removal from the State Party.
1.3
On 20 September 2021, pursuant to rule 94 of its rules of procedure, the Committee,
acting through its Special Rapporteurs on new communications and interim measures,
requested the State Party to refrain from removing the author to Albania while his case was
under consideration by the Committee.
1.4
On 21 September 2021, the State Party informed the Committee that the author had
been removed to Albania.
Facts as submitted by the author
2.1
The author states that he arrived in Australia on 10 September 2013 and sought asylum
after having provided information to the police about the operations of a pan-European
organized crime group based in Albania. The author arrived in Australian territorial waters
on a boat travelling from Indonesia. The boat was intercepted by the Royal Australian Navy,
and the author was taken to Darwin, Australia, where he was detained. He was subsequently
transferred to Christmas Island and detained in the North West Point Immigration Detention
Centre. At the time of the submission of the complaint, the author had been held in
immigration detention for almost seven years, initially on Christmas Island (15 October 2013
to 1 February 2015), then Wickham Point Alternative Place of Detention in Darwin
(1 February 2015 to 1 May 2016) and subsequently the Melbourne Immigration Transit
Accommodation (1 May 2016 to the time of the submission of the complaint). The author
was detained in low-security detention facilities. His detention record showed a person who
had respectful relationships with other detainees, staff and authorities and he was, in general,
in good health.
2.2
On 6 May 2016, the author submitted a safe haven enterprise visa application. On
2 December 2016, the application was denied by the Immigration Assessment Authority. The
decision was upheld on 10 November 2017 and 7 December 2018 by the Federal Circuit
Court and the Federal Court, respectively. On 17 April 2019, the author’s application for
special leave to appeal was denied by the High Court of Australia.
2.3
While he was in detention, two applications for a bridging visa were filed by the
author’s immigration case managers for ministerial consideration under section 195A of the
Migration Act of 1958. The applications, submitted in 2017 and 2018, aimed at having him
be released from detention while his protection visa application was being reviewed. Both
applications were rejected, despite the author’s record of exemplary behaviour. The author
states that these negative responses were due to an alleged International Criminal Police
Organization (INTERPOL) Red Notice issued for him. In response to the rejections, the
author asserted that he had no knowledge about such a notice, but was informed that he would
need to prove that the notice did not exist, which was not possible as he had neither the
finances nor the know-how to make such inquiries.
2.4
In an assessment dated 19 April 2017, the author’s counsellor noted that the author
suffered symptoms meeting the criteria for a major depressive disorder, and it was noted that
he was suffering the adverse effects of confinement and a lack of meaningful activity. In late
2018, the author’s closest friends were granted protection visas and left the Melbourne
Immigration Transit Accommodation, leaving him isolated in detention. He became lonely,
depressed and disinterested in activities such as eating, exercising and accepting visits from
community members that he had previously enjoyed. The author’s mental and physical state
appropriate remedy for the State Party would be to release the author from detention immediately and
accord him an enforceable right to compensation and other reparations, in accordance with
international law.
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seriously deteriorated, and he lost a lot of weight. His health declined further in May 2019,
when he received news that his application for special leave to appeal to the High Court had
been denied. By the end of July 2019, he had lost over 20 kg, or one third of his body weight,
and was hospitalized in a psychiatric facility in August 2019, where he stayed until
1 November 2019.
2.5
During the stay in the psychiatric facility the author was diagnosed with chronic post-
traumatic stress disorder and a major depression episode. On 2 September 2019, a psychiatrist
recommended that the author not be re-exposed to trauma and not be returned to a closed
detention facility. She also recommended ongoing psychiatric care and that he return to the
psychiatric facility on a monthly basis. 2 Despite this, the author was returned to the
Melbourne Immigration Transit Accommodation on 1 November 2019 and subjected to
attempted deportation to Albania without prior notice on 8 November 2019. The deportation
was aborted after the author stood up in his seat on the aeroplane and said repeatedly that he
was not fit to fly. At that point he and his escorts were requested to leave the aeroplane. After
the attempt to deport him, he lost additional weight, weighing only 50 kg (with a height of
176 cm). He again stopped exercising and social interactions and stayed largely confined to
his room, except for a one-week stay at a psychiatric facility from 24 November to
1 December 2019. He described being afraid to the point of paranoia about any interaction
with staff and stopped accepting visits from friends and other people. He was admitted to the
Northern Hospital three times between 23 and 27 January 2020 and was diagnosed with
infected kidney stones.
2.6
The author argues that he could not challenge his detention in court. He notes that the
Migration Act specifically provides, in sections 189 (1), 196 (1) and 196 (3), that “unlawful
non-citizens” must be detained and kept in detention until they are: (a) removed or deported
from Australia; or (b) granted a visa. Section 196 (3) specifically provides that even a court
cannot release an unlawful non-citizen from detention. The author further states that the High
Court of Australia has held that mandatory immigration detention is not contrary to the
Constitution or national legislation. 3 He further notes that the Committee held, in C. v.
Australia,4 that there is no effective remedy for persons subject to mandatory immigration
detention in the State Party. The author informs the Committee that he has lodged complaints
with the Australian Human Rights Commission and the Commonwealth Ombudsman
concerning his conditions of detention. To date, no favourable outcome has been achieved.
Complaint
3.1
The author claims a violation of his rights under articles 6, 7, 9, 10 and 26 of the
Covenant. He claims that his detention was arbitrary, in violation of article 9 of the Covenant,
and that the deterioration of his state of mental and physical health was a foreseeable result
of his arbitrary detention. He also claims that his indefinite and protracted detention caused
him significant mental anguish, including suicidal ideation and resignation syndrome,
causing him to refuse fluids and food. He argues that the treatment he was subjected to in
detention amounted to ill-treatment in violation of his rights under articles 7 and 10 of the
Covenant.
3.2
The author further claims that the arbitrary detention put his life at risk, in violation
of his rights under article 6, and that despite this risk, the State Party took no demonstrable
steps to mitigate such risk, in violation of his rights under article 10 of the Covenant. The
author also claims that his rights under article 26 of the Covenant were violated, as he
contends that unlike persons who seek asylum in the State Party while on a valid visa or who
are citizens of the State Party, he could not seek judicial review of his detention.
2 The author’s treating psychiatrist noted in a report dated 2 September 2019 that a return to detention
would be damaging for the author’s recovery from chronic post-traumatic stress disorder due to the
hopelessness and helplessness associated with the indefinite definition. The psychiatrist
recommended that he be transferred to a less restrictive place, such as community detention facilities,
instead continuing his stay at the detention centre.
3 The author refers to High Court of Australia, Al-Kateb v. Godwin, Case No. A253/2003, Judgment,
6 August 2004.
4 CCPR/C/76/D/900/1999.
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State Party’s observations on admissibility and the merits
4.1
On 9 July 2021, the State Party submitted its observations on the admissibility and
merits of the communication. It submits that the complaint should be found inadmissible for
failure to substantiate the claims for purposes of admissibility.
4.2
The State Party provides information on applicable domestic legislation. It notes that
any “unlawful non-citizen”, that is, a non-citizen in the migration zone of Australia who does
not hold a visa, is subject to immigration detention under section 189 of the Migration Act.
Under section 46A (1) of the Act, an application for a visa is not a valid application if it is
made by an unlawful non-citizen. However, under section 46A (2) of the Act, if the minister
responsible for citizen and border protection thinks it is in the public interest to do so, the
minister may determine that section 46A (1) does not apply (referred to as “lifting the bar”).
Section 195A of the Migration Act confers on the minister a personal, discretionary,
non-compellable power to grant a visa to a person in immigration detention, if the minister
thinks it is in the public interest to do so, subject to any conditions necessary to take into
account their specific circumstances. Under section 197AB of the Migration Act, the minister
also has the power to make a residence determination, commonly known as “community
detention”, if the minister considers it in the public interest to do so. This allows a person
detained under section 189 of the Migration Act to reside in the community at a specified
place and in accordance with conditions specified in the determination.
4.3
The State Party informs the Committee that the author entered the Australian
migration zone by boat on 16 September 2013 without a valid visa. The boat was intercepted
by the Royal Australian Navy, and the author was taken to Darwin, where he was detained
pursuant to section 189 (1) of the Migration Act. The State Party notes that the author’s
protection claims have been found to not engage the State Party’s protection obligations in a
number of domestic proceedings, including with regard to the refusal of the author’s safe
haven enterprise visa application on 26 September 2016 by a delegate of the minister
responsible for citizen and border protection, the affirmation of said decision on 2 December
2016 by the Immigration Assessment Authority, and the dismissal of the author’s application
for judicial review by the Federal Circuit Court and the Federal Court, on 10 November 2017
and 7 December 2018, respectively, as well as the dismissal by the High Court of Australia
of the author’s application for special leave, on 17 April 2019. The State Party further informs
the Committee that the author’s case was referred for assessment against section 195A
guidelines on three occasions. On 23 March 2017 and 17 January 2018, the author’s case was
assessed, on balance, as not meeting the guidelines for referral to the minister. In reaching
this conclusion the Department of Home Affairs considered a range of factors, including: the
fact that the author had been assessed as not engaging the State Party’s protection obligations;
that the author had ongoing judicial review proceedings; the impact ongoing detention may
have on his health; and the length of time that he had already been in detention. On 17 August
2018, the author’s case was reassessed by the Department and his case was subsequently
referred to the minister for his consideration. On 27 March 2019, the Minister declined to
consider intervening.
4.4
The State Party notes that the author has been in immigration detention since his
arrival in Australia on 16 September 2013. It informs the Committee that on 11 January 2021,
the author was voluntarily admitted to the Melbourne Clinic for psychiatric treatment, where
he remained at the time of the submission of these observations and where he was being
treated for major depressive disorder, post-traumatic stress disorder and a restrictive eating
disorder. The author was complying with treatment plans, including medications and
psychology sessions. As at 7 June 2021, the author weighed 55.2 kg, indicating an
improvement in nutritional intake. The author had received treatment from a dietician and
had agreed to take dietary supplements regularly. The State Party asserts that for the duration
of his time in immigration detention, the author has had access to a range of services,
including services commensurate with those available to the Australian community, to ensure
his mental and physical well-being. It notes that all persons in immigration detention are
made aware that engaging in food or fluid refusal will not affect immigration decision-
making processes. All persons held in detention are assigned an officer from the Department
of Home Affairs, who provides regular updates on any plans for the person’s removal from
Australia to that individual or their representatives. Further, the author’s detention was
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subject to regular review, which assessed the appropriateness of the accommodation and
services provided.
4.5
The State Party submits that the author has not substantiated any of his claims for the
purposes of admissibility. Regarding his claims under article 6, it submits that he has not
established that his right to life was at imminent threat of being breached. It argues that while
he has provided some information with respect to his mental and physical health, and to the
medical services he has accessed in immigration detention, he has not provided sufficient
evidence to substantiate his claim that medical recommendations have not been followed. It
submits that the author has received adequate healthcare while in detention. The State Party
likewise argues that the author has not provided any evidence to establish that his detention,
with respect to its duration or the conditions in detention, meets the requisite threshold for a
violation of article 7 and 10 of the Covenant. As concerns the author’s claims under article 9,
the State Party argues that he has not identified the basis on which he alleges that his detention
is arbitrary and that in his complaint he has not made a reference to article 9 (4) of the
Covenant. Concerning the author’s claims under article 26, the State Party argues that those
claims are generalized in nature and have not been supported by substantiating evidence.
4.6
As to the merits of the author’s claims, the State Party notes his submission that due
to his resignation syndrome, the deterioration of his mental and physical health was
“foreseeable”, and his claim that the State Party has not followed medical recommendations
in relation to his care. It submits that during his period of detention the author received
appropriate medical treatment and care. It further states that healthcare provided to detainees
in immigration detention facilities in Australia is broadly commensurate with healthcare
available to the Australian community through the public health system. It further notes that,
consistent with the policy with respect to persons in detention who refuse food or fluid, the
author has been receiving regular medical assessments at least every 24 hours, and more
frequently if clinically indicated. All instances of food or fluid refusal are appropriately
documented, reported, escalated and monitored. Psychological consultations are also
undertaken as necessary to establish and monitor the mental competence of the author. The
State Party informs the Committee that the author has undergone several medical assessments
and notes, for example, that on 28 October 2020 he was transferred to Liverpool Hospital in
New South Wales, where he underwent a psychiatric review and a medical assessment, in
which he was deemed mentally capable of making decisions, and not in immediate danger of
death or in need of invasive feeding. On 4 November 2020, the author was medically cleared
by Liverpool Hospital and transferred to Westmead Hospital, also in New South Wales, for
further mental health assessment. The Westmead Hospital psychiatry team reported that the
author did not have a mental health condition, and he was deemed to have the capacity to
make decisions. On 11 January 2021, the author was voluntarily admitted as an inpatient at
the Melbourne Clinic, where he was assessed as retaining the capacity to make decisions with
respect to his healthcare. The State Party thus submits that there is no basis on which the
Committee could conclude that it has breached its obligations under article 6 of the Covenant.
4.7
Regarding the author’s claims under article 7 of the Covenant, the State Party submits
that neither the fact of the author’s detention, nor the conditions or duration of detention,
amount to torture or cruel, inhuman or degrading treatment under that article. The author has
been provided with continuous access to a range of services, including health services, to
ensure his mental and physical well-being. Where health concerns with respect to the author
have arisen, medical care has been made available to and accessed by the author.
4.8
Regarding the author’s claims under article 9, the State Party submits that his
detention was consistent with domestic legislation and not arbitrary. It argues, in this
connection, that article 9 must be read in the context of the Covenant as a whole, including
articles 12 and 13, which make clear that States Parties have the right, under international
law, to control the residence, entry and expulsion of aliens. The State Party notes that it
accepts that the author was in detention, within the meaning of article 9 (1) of the Covenant,
while in immigration detention. It submits that the author’s immigration detention was lawful
as it was in accordance with section 189 of the Migration Act. It further submits that the
phrase “in accordance with such procedure as … established by law” in article 9 (1) of the
Covenant refers to law in the domestic legal system. It argues that the travaux préparatoires
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demonstrate that the term “lawful” and the phrase “on such grounds and in accordance with
such procedures as are established by law” both refer to the domestic laws of States Parties.5
4.9
The State Party further submits that the author’s detention was not arbitrary because
it was reasonable, necessary and proportionate to a legitimate purpose and subject to regular
review, which included consideration of whether less restrictive alternatives were available.
The State Party submits that the detention of an unlawful non-citizen is not inconsistent per
se with a State Party’s obligations under article 9 of the Covenant. It submits that there is no
rule that detention for a particular length of time will necessarily be considered arbitrary and
that the determining factor is not the length of the detention but rather whether the grounds
for detention are justifiable. In the present case, the State Party submits that the author’s
detention was reasonable, necessary and proportionate for the legitimate purposes of:
(a) preventing unlawful non-citizens from entering the Australian community after travelling
to Australia by irregular means; (b) ensuring that the author was available for removal once
his immigration matters were finalized; (c) ensuring the integrity of the migration programme
of Australia; and (d) assessing the identity and security risk of unlawful non-citizens.
4.10 The State Party further argues that the author’s detention was subject to regular review.
The Department of Home Affairs conducts its own internal reviews through the case
management service. The review assesses the lawfulness of detention, case progression, the
health and welfare of the detainee, whether less restrictive forms of detention are available,
and any other relevant information that has been raised or identified during the review.
Accordingly, the Department ensured that 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 the accommodation and services
provided. It reiterates its argument that the author’s health and welfare have been considered
as part of regular internal reviews regarding his detention to ensure that it remained
reasonable, proportionate and necessary. The State Party notes the author’s reference in his
complaint to an INTERPOL Red Notice. It however informs the Committee that the author’s
detention in the State Party was not at any time based on the existence of any Red Notice or
on national security grounds; rather, it was based on domestic legislation and guidelines.
4.11
The State Party further notes the author’s claim that, as an unlawful non-citizen, he
was unable to access any judicial or administrative processes to challenge his detention. It
argues that judicial review of the lawfulness of detention was available to the author under
section 75 (v) of the Constitution, which provides that the High Court of Australia has
jurisdiction in relation to every matter where a writ of mandamus, prohibition or injunction
is sought against an officer of the Commonwealth, and that habeas corpus is also available
as an avenue under which a person is entitled to bring proceedings for a court to review the
lawfulness of that person’s detention. Should the High Court find the detention to be unlawful,
it would be a matter for the Court to determine the appropriate remedy in the circumstances
of the case. The State Party submits that the author was therefore able to test the lawfulness
of his detention before a court, and that any claim under article 9 (4) of the Covenant is
without merit.
4.12
Regarding the author’s claims under article 10 of the Covenant, the State Party
submits that the conditions of detention in Australian immigration detention facilities meet
the requirements of article 10 (1) and that the author’s treatment and detention conditions
complied with his right to be treated with humanity and dignity in detention. The State Party
reiterates its argument that persons in immigration detention are provided with clinically
recommended physical and mental healthcare services at a standard generally commensurate
with healthcare available to the Australian community, and that such care was available and
provided to the author during his period of detention, with the recommendations of medical
professionals given due regard at all times. The State Party further notes that inhuman
treatment must attain a minimum level of severity in order to fall within the scope of
5 The State Party cites Marc J. Bossuyt, Guide to the “Travaux Préparatoires” of the International
Covenant on Civil and Political Rights (Brill, 1987), p. 197; and Manfred Nowak, U.N. Covenant on
Civil and Political Rights: CCPR Commentary (N.P. Engel, 2005), pp. 224–227 and 248–252.
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article 10 (1).6 It submits that the author’s feelings of isolation do not fall within minimum
requirements of article 10 (1). It further argues that the author’s claims with regard to his
isolation in detention must be considered in the light of the range of measures, policies and
procedures that the Department and its contracted service providers have in place to ensure
the well-being of persons in immigration detention, including: access to a wide variety of
communications services and information and media facilities, including computers, email,
television, library and educational services; access to a regular schedule of programmes and
activities targeted at enhancing the mental health and well-being of persons in detention
facilities, such as educational, sports, cultural and craft-based programmes; access to a gym
and regularly offered recreational excursions; access to religious practitioners and religious
practice; access to adequate mental and physical healthcare services consistent with duty of
care obligations owed to persons in immigration detention; and individual management plans
developed in respect of each person in detention, in order to ensure that individuals are
provided with needs-based services and support. The State Party notes that during the
detention period the author had access to the services outlined above. It submits that in the
light of the measures in place to ensure that the author had access to appropriate services,
including support and mental health services, his allegations regarding his treatment in, and
circumstances of, detention do not amount to a breach of article 10 (1) of the Covenant.
4.13
The State Party further notes that the author has invoked alleged discriminatory
treatment regarding his possibility of challenging his detention as a non-citizen in the State
Party. It submits that both citizens of Australia and non-citizens can challenge their
administrative detention through writ of mandamus, prohibition, injunction or habeas corpus.
There is no difference in treatment between citizens and non-citizens with respect to their
ability to seek a judicial remedy in relation to administrative detention under section 75 (v)
of the Constitution.
Author’s comments on the State Party’s observations on admissibility and the merits
5.1
On 30 November 2021, the author submitted his comments on the State Party’s
observations. He maintains that the communication is admissible, and he reiterates his claims
as presented in his initial complaint.
5.2
The author notes the State Party’s argument that all decisions with respect to his
treatment were informed by medical assessment. He argues that while he received medical
treatment at various intervals during his time in detention, the provision of treatment in those
instances does not remedy the fact that the State Party failed to follow medical advice at
certain critical junctures. He argues that the State Party has not shown that the treatment
provided to him effectively ameliorated any of the symptoms. He reiterates his argument that
a doctor’s recommendation, dated 2 September 2019, that he be transferred to a less
restrictive place, such as community detention, was not followed. After that there were
several additional instances where medical practitioners strongly advised against his
continued detention in closed immigration detention facilities, including the following: (a) on
4 June 2020, a clinical reporting nurse noted that detention centres were considered high-risk
locations in relation to coronavirus disease (COVID-19) transmission and that the author was
vulnerable to serious COVID-19 disease, including death, due to his current condition; (b) on
12 August 2020, a consultant psychiatrist stated that the continued detention of the author
would most definitely lead to severe detrimental effects, including related morbidity and
mortality risks; (c) on 4 September 2020, a psychiatrist stated that there was a high likelihood
that the author would die if the current situation continued, and urged the Department to
consider all possible options, including cessation of detention; and (d) on 21 June 2021, a
psychiatrist requested that the author be transferred to a less restrictive setting, such as
community detention. The author argues that instead of ensuring circumstances that would
have promoted his health and well-being, the authorities of the State Party decided to
maintain an environment that was not conducive to his physical or psychological recovery.
5.3
The author reiterates his argument that his prolonged detention amounted to cruel,
inhuman or degrading treatment, given that the length of detention caused him to suffer
6 The State Party cites Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary,
p. 250.
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mental anguish, as substantiated by medical records. He additionally refers to a report by a
psychiatrist regarding his health situation, dated 4 September 2020, in which it is noted that
his prolonged extreme starvation, a direct consequence of detention, had already caused
significant, potentially irreversible morbidity.
5.4
The author further reiterates his submission that his mandatory and prolonged
immigration detention was arbitrary. He argues that the State Party has failed to explain how
the detention was reasonable, legitimate or proportionate to any of the described legitimate
aims. The author further reiterates his argument that his detention was not subject to regular
review, and notes that the case management reviews referred to by the State Party are not
independent and are conducted by the Department itself. He also notes the State Party’s
argument that he could have challenged the lawfulness of his detention pursuant to section
75 (v) of the Constitution. He however argues that judicial review of immigration detention
decisions in the State Party is limited to whether detention is lawful in accordance with
domestic law, not whether it is in accordance with article 9 (1) of the Covenant.7
5.5
The author reiterates his argument that his right to be free from discrimination in
accordance with article 26 of the Covenant was breached because his detention resulted from
the imposition of discriminatory practices, in that the Migration Act authorized his detention
for no other reason than that he fell under a certain category of people, being an individual
who arrived in Australia by boat without a valid visa.
State Party’s further submission
6.1
On 27 June 2024, the State Party submitted further observations on the
communication. It reiterates its submission that the communication should be found
inadmissible for failure to substantiate the claims for the purposes of admissibility.
6.2
Regarding the author’s claims under article 6 of the Covenant, the State Party notes
that its obligations to persons in detention is to provide necessary medical care and
appropriate regular monitoring of their health.8 It refers to its observations of 9 July 2021,
and reiterates its argument that it satisfied this obligation, as appropriate and adequate
medical treatment was made available to the author throughout the detention period. The
State Party states that the medical recommendations referred to by the author in his comments
were made after all judicial mechanisms for the review of the decision not to grant him a
protection visa were exhausted on 17 April 2019. It argues that the author has not provided
evidence of any medical recommendation for release from immigration detention prior to
that time. After 17 April 2019, there was no possibility that the author could obtain a legal
entitlement to remain in Australia, and he was liable to be removed to Albania at any time.
The State Party further argues that the obligation in article 6 should not be read so as to
require the State Party to permit the author to reside in Australia in circumstances where its
non-refoulement obligations are not engaged. The State Party further argues that the author’s
assertion that immigration authorities took no action to end the detention is unfounded. It
notes that in November 2019, State Party authorities attempted to release the author from
immigration detention by removing him to Albania. The author resisted this attempt and was
removed from a commercial flight by members of flight crew.
6.3
Regarding the author’s claims under article 7 of the Covenant, the State Party
reiterates its argument that the author has not provided any evidence to suggest the existence
of conditions of detention that would constitute conduct so egregious as to amount to torture
or cruel, inhuman or degrading treatment. It notes the author’s argument that the protracted
detention caused him mental anguish, in violation of his rights under article 7 of the Covenant.
It submits that the mere allegation of mental anguish is insufficient grounds for a claim of
torture or cruel, inhuman or degrading treatment, without further articulation of the
circumstances by which State Party authorities are alleged to have caused the author’s
claimed mental anguish.
7 High Court of Australia, Al-Kateb v. Godwin.
8 The State Party refers to the Committee’s general comment No. 36 (2018) on the right to life,
para. 25.
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9
6.4
The State Party reiterates its submission that the detention of the author was in
accordance with domestic legislation, not arbitrary and subject to regular review. It reiterates
its submission that there is no rule that detention for a particular length of time will
necessarily be considered arbitrary, and argues that the author’s detention was not indefinite,
but continued only until such time as the author was removed from Australia. From the time
that the author’s protection visa application was finally determined, authorities of the State
Party were, under section 198 (2) of the Migration Act, obliged to remove the author from
Australia and, as a result, also from immigration detention. The author’s removal to Albania,
and as such also his release from immigration detention, was only delayed in order for him
to receive medical care, and by the author’s disruptive behaviour, which caused him to be
removed from a commercial flight by members of the flight crew in November 2019.
Issues and proceedings before the Committee
State Party’s failure to respect the Committee’s request for interim measures pursuant to
rule 94 of the Committee’s rules of procedure and article 1 of the Optional Protocol
7.1
The Committee notes that the adoption of interim measures pursuant to rule 94 of its
rules of procedure, in accordance with article 1 of the Optional Protocol, is vital to the role
entrusted to the Committee under that article. Failure to respect the interim measures
requested by the Committee with a view to preventing irreparable harm undermines the
protection of the rights enshrined in the Covenant.9
7.2
As indicated in paragraph 19 of the Committee’s general comment No. 33 (2008) on
the obligations of States Parties under the Optional Protocol to the International Covenant on
Civil and Political Rights, failure to implement interim measures is incompatible with the
obligation to respect in good faith the procedure of individual communications established
under the Optional Protocol. The Committee is therefore of the view that, by failing to respect
the request for interim measures – to refrain from removing the author to Albania while his
case was pending before the Committee – transmitted to the State Party on 20 September
2021, the State Party failed in its obligations under article 1 of the Optional Protocol.10
Consideration of admissibility
8.1
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.
8.2
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.
8.3
The Committee notes that the State Party has not specifically submitted that the
author’s claims should be found to be inadmissible under article 5 (2) (b) of the Optional
Protocol for failing to exhaust domestic remedies. The Committee, however, notes that the
State Party has contended that the author could have challenged his detention by applying for
a writ of mandamus under section 75 (v) of the Constitution, or for a writ of habeas corpus.
The Committee recalls its jurisprudence indicating 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 that
mere doubts or assumptions about their effectiveness do not absolve the authors from
exhausting them.11 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 claim before domestic
courts may succeed, authors are not obliged to exhaust domestic remedies for the purposes
of the Optional Protocol.12 The Committee notes the author’s argument that, according to the
jurisprudence of the High Court of Australia that applied at the time of his detention
9 See, for example, B.A. et al. v. Austria (CCPR/C/127/D/2956/2017), para. 9.1; and Rehman v.
Hungary (CCPR/C/138/D/2963/2017), para. 7.1.
10 B.A. et al. v. Austria, para. 9.2; and Rehman v. Hungary, para. 7.2.
11 See, for example, M.L. v. Croatia (CCPR/C/127/D/2505/2014), para. 6.6.
12 See, for example, X et al. v. Greece (CCPR/C/126/D/2701/2015), para. 8.5.
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10
GE.26-06087
(Al-Kateb v. Godwin), indefinite detention of a so-called “unlawful non-citizen” was lawful
under domestic legislation. The Committee recalls that it has stated that the possibility that
the High Court could someday overrule its precedent upholding indefinite detention of
“unlawful non-citizens” did not suffice to indicate the availability of an effective remedy.13
The Committee notes that, at the time of the author’s submission of his complaint before the
Committee, the said precedent had not been overturned. 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 his detention is not an obstacle under article 5 (2) (b)
of the Optional Protocol to the admissibility of the present communication.
8.4
The Committee notes the author’s claims that his arbitrary detention put his life at risk
due to his deteriorating health condition, in violation of his rights under article 6 of the
Covenant. It further notes the State Party’s submission that appropriate and adequate medical
treatment commensurate with healthcare available to the Australian community through the
public health system was made available to the author throughout the detention period. The
Committee recalls that States Parties have a heightened duty of care to take any measures
necessary to protect the lives of individuals deprived of their liberty by the State, since by
arresting, detaining, imprisoning or otherwise depriving individuals of their liberty, States
Parties assume the responsibility to care for their lives and bodily integrity, and they may not
rely on lack of financial resources or other logistical problems to reduce this responsibility.14
In the present case, the Committee however considers that the author has not provided
sufficient information to substantiate his claims under article 6 and therefore finds the claims
inadmissible under article 2 of the Optional Protocol.
8.5
As to the claims raised by the author under article 26 of the Covenant, the Committee
considers that the author has not provided sufficient information to support his claims of
discriminatory treatment and finds the claims insufficiently substantiated and inadmissible
under article 2 of the Optional Protocol.15
8.6
The Committee considers that the author has sufficiently substantiated the remaining
claims raised in the communication for the purposes of admissibility. Accordingly, the
Committee declares the author’s claims under articles 7, 9 (1) and (4) and 10 (1) of the
Covenant admissible and proceeds with its consideration of the merits.
Consideration of the merits
9.1
The Committee has considered the communication in the light of all the information
submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
9.2
The Committee notes the author’s claims that he was subjected to arbitrary and
prolonged detention in the State Party, in violation of his rights under article 9 (1) of the
Covenant. It notes the State Party’s arguments that the detention was lawful under the
Migration Act, in pursuit of the legitimate aim of ensuring the integrity of the State Party’s
migration policies, and that it was reasonable, necessary and proportionate in the particular
circumstances of the case. It notes the State Party’s argument that the author’s detention was
subject to regular review and did not continue beyond the period for which it was justified.
9.3
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 arbitrary16 and thus contrary to article 9 (1) of the Covenant. Detention in the
course of proceedings for the control of immigration is not arbitrary per se, but the detention
must be justified as 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
13 F.K.A.G. et al. v. Australia (CCPR/C/108/D/2094/2011), para. 8.4; F.J. et al. v. Australia
(CCPR/C/116/D/2233/2013), para. 9.3; and Nabhari v. Australia (CCPR/C/142/D/3663/2019),
para. 7.3.
14 Human Rights Committee, general comment No. 36 (2018), para. 25.
15 Safdary v. Australia (CCPR/C/143/D/3686/2019), para. 7.5.
16 General comment No. 35 (2014), para. 12.
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11
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 to detain must consider relevant
factors case by case; must not be based on a mandatory rule for a broad category of persons;
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. The inability of a State Party to carry out the
expulsion of an individual because of statelessness or other obstacles does not justify
indefinite detention.17
9.4
In the present case, the Committee notes that the author was detained in September
2013 upon arrival in Australia and was held in various immigration detention facilities, with
some periods of hospitalization in medical facilities, until his deportation to Albania on
21 September 2021. The author thus spent eight years in immigration detention under the
State Party’s immigration detention policy.
9.5
The Committee notes the State Party’s argument that it had considered the author’s
individual needs in determining the appropriateness and necessity of detention (see para. 4.10
above). The Committee, however, considers that the State Party has not identified any
individualized and specific reasons that would have justified the need to deprive the author
of his liberty for such a protracted period. In particular, 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, nor has it demonstrated that, in the light of the author’s particular
circumstances, there were not less invasive means of achieving the same ends – that is,
compliance with the State Party’s immigration policies – through, for example, the
imposition of reporting obligations, sureties or other conditions that would take account of
the author’s deteriorating health condition. 18 The Committee therefore finds that the
protracted nature of the author’s detention was unreasonable, unnecessary and
disproportionate to the State Party’s policy objectives and in violation of the author’s rights
under article 9 (1) of the Covenant.
9.6
The Committee further notes the author’s claim that, under the jurisprudence of the
High Court of Australia in Al-Kateb v. Godwin, which applied at the time of his detention,
he was unable to seek judicial review of his detention, contrary to the requirements of
article 9 (4) of the Covenant.
9.7
Article 9 (4) entitles anyone who is deprived of liberty by arrest or detention to take
proceedings before a court, in order that the court may decide without delay on the lawfulness
of the detention and order release if the detention is not lawful. The Committee refers to its
general comment No. 35 (2014), in which it indicates 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).19 The Committee
further recalls its previous jurisprudence concerning review of the detention of non-citizens
without valid entry documentation in the State Party, in which it concluded that the scope of
domestic judicial review of immigration detention was insufficient to permit the examination
of an individual’s detention in substantive terms. 20 In its previous jurisprudence, the
Committee has further stated that the State Party has not provided any relevant legal
precedents showing the effectiveness of an application for a judicial review of mandatory
immigration detention under the Migration Act, nor has it shown that national courts have
17 Ibid., para. 18
18 C. v. Australia, para. 8.2; A v. Australia (CCPR/C/59/D/560/1993), para. 9.4; M.M.M. et al. v.
Australia (CCPR/C/108/D/2136/2012), para. 10.4; F.J. et al. v. Australia, para. 10.4; Nabhari v.
Australia, paras. 8.6 and 8.7; and Safdary v. Australia, para. 8.5. See also Working Group on
Arbitrary Detention, opinion No. 17/2021, paras. 107 and 108.
19 General comment No. 35 (2014), paras. 39, 40 and 44. See also M.M.M. et al. v. Australia, para. 10.6;
F.J. et al. v. Australia, para. 10.5; and F.K.A.G. et al. v. Australia, para. 9.6.
20 M.M.M. et al. v. Australia, para. 10.6; F.J. et al. v. Australia, para. 10.5; and F.K.A.G. et al. v.
Australia, para. 9.6.
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the authority to make individualized rulings on the justification for an applicant’s detention.21
The Committee therefore considers that the facts in the present case amount to a violation of
the author’s rights under article 9 (4) of the Covenant.
9.8
The Committee further notes the author’s claim that the deterioration of his mental
and physical health was a foreseeable result of his protracted arbitrary detention, amounting
to a violation of his rights under articles 7 and 10 of the Covenant. It further notes his
argument that the State Party failed to follow medical advice at certain critical junctions and
his argument that instead of ensuring circumstances that would have promoted his health and
well-being, the authorities of the State Party decided to maintain an environment that was not
conducive to his physical or psychological recovery (see para. 5.2 above). It notes the State
Party’s argument that the author was provided with continuous access to a range of services,
including adequate physical and mental healthcare services, to ensure his well-being during
the entire period of detention.
9.9
The Committee refers to paragraph 3 of its general comment No. 21 (1992) on humane
treatment of persons deprived of their liberty, in which it states that article 10 (1) imposes a
positive obligation on States Parties towards persons who are particularly vulnerable because
of their status as persons deprived of liberty. Decisions regarding the detention of migrants
must take into account the effect of detention on their physical or mental health. 22 The
Committee recalls that persons deprived of their liberty must not be subjected to any hardship
or constraint other than that resulting from the deprivation of liberty.23 It further recalls that
inhuman treatment must attain a minimum level of severity to come within the scope of
article 10 of the Covenant. The assessment of this minimum depends on all the circumstances
of the case, such as the nature and context of the treatment, its duration, its physical or mental
effects and, in some instances, the sex, age, state of health or other status of the victim,24 with
detention authorities having a specific responsibility, among others, to provide prisoners with
appropriate medical services. 25 In this connection, the Committee also recalls its
jurisprudence in which it has held that prolonged and indefinite immigration detention against
medical advice resulting in deteriorating mental health may, in combination with the arbitrary
character of the protracted duration or indefinite term of detention, amount to a violation of
articles 7 and 10 of the Covenant.26
9.10
In the present case, the Committee notes that it is undisputed that the author was
diagnosed with chronic post-traumatic stress disorder and a major depression disorder, and
that he was hospitalized on several occasions, including in psychiatric facilities. It further
notes that on 2 September 2019, a psychiatrist recommended that the author not be
re-exposed to trauma and not be returned to a closed detention facility, after which there were
additional recommendations by medical practitioners advising that his continued detention
in closed immigration facilities would lead to a further deterioration of his health (see
para. 5.2 above). The Committee thus observes, as established by the author’s medical
records, that the uncertainty regarding his migration status and the subsequent deprivation of
freedom were factors that contributed significantly to the author’s vulnerable physical and
mental health situation. The Committee considers that the conditions of the author’s detention
as described violated his right to be treated with humanity and with respect for the inherent
dignity of the human person and were therefore contrary to article 10 (1) of the Covenant, a
provision of the Covenant dealing specifically with the situation of persons deprived of their
21 M.I. et al. v. Australia (CCPR/C/142/D/2749/2016), para. 10.6; and Safdary v. Australia, para. 8.7.
See also Working Group on Arbitrary Detention, opinion No. 17/2021, para. 119.
22 General comment No. 35 (2014), para. 18.
23 General comment No. 21 (1992), para. 3.
24 See Brough v. Australia (CCPR/C/86/D/1184/2003), Marinich v. Belarus (CCPR/C/99/D/1502/2006)
and Dafnis v. Greece (CCPR/C/135/D/3740/2020), para. 8.5.
25 Mukong v. Cameroon (CCPR/C/51/D/458/1991), para. 9.3; Rouse v. Philippines
(CCPR/C/84/D/1089/2002), para. 7.8; Dafnis v. Greece, para. 8.5; and United Nations Standard
Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
26 Madafferi et al. v. Australia (CCPR/C/81/D/1011/2001), para. 9.3; Safdary v. Australia, para. 8.10;
M.M.M. et al. v. Australia, para. 10.7; F.J. et al. v. Australia, para. 10.6; F.K.A.G. et al. v. Australia,
para. 9.8; and C. v. Australia, para. 8.4.
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liberty and encompassing for such persons the elements set out generally in article 7.27 On
the basis of the information before it, in particular the disproportionate impact of the
detention conditions on the author’s physical and mental health, the Committee finds that the
arbitrary character of the protracted detention constitutes a violation of the author’s right not
to be subjected to inhuman or degrading treatment under article 7 of the Covenant. For these
reasons the Committee finds that the circumstances of the author’s detention constitute a
violation of his rights under articles 7 and 10 (1) of the Covenant.
10.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the facts before it disclose violations of the author’s rights under articles 7, 9 (1) and (4) and
10 (1) of the Covenant and of article 1 of the Optional Protocol.
11.
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. 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 ensure that its migration legislation and policies are
in conformity with the requirements of the Covenant.
12.
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.
27 Pichugina v. Belarus (CCPR/C/132/D/2711/2015), para. 6.3; Bobrov v. Belarus
(CCPR/C/122/D/2181/2012), para. 8.2; Weerawansa v. Sri Lanka (CCPR/C/95/D/1406/2005),
para. 7.4; Evans v. Trinidad and Tobago (CCPR/C/77/D/908/2000), para. 6.4; and Dafnis v. Greece,
para. 8.5.
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Annex I
Joint opinion of Committee members Yvonne Donders and
Tijana Šurlan (partially dissenting)
1.
We agree with the Committee’s finding of violations of articles 7, 9 (1) and (4) and
10 (1) of the Covenant and of article 1 of the Optional Protocol. We write separately to
express our disagreement with the Committee’s conclusion in paragraph 8.5 of the Views
that the author has not provided sufficient information to support his claims of discriminatory
treatment, finding the claims under article 26 inadmissible under article 2 of the Optional
Protocol.
2.
In doing so, the Committee followed several earlier cases against Australia.1 In our
view, there were convincing reasons to distinguish the present case from other cases, also in
the light of the conclusion by the Working Group on Arbitrary Detention on the case brought
by the same person who submitted communication No. 3813/2020 that there had been
discrimination against unlawful non-citizens in relation to the judicial review of their
detention.2
3.
The Working Group distinguishes several categories of arbitrary deprivation of liberty;
two are explicitly linked to article 26 on non-discrimination. The first related category,
referred to by the Working Group as category II, includes “when the deprivation of liberty
results from the exercise of the rights or freedoms guaranteed…by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the Covenant”; the second (Working Group category V) is “when the
deprivation of liberty constitutes a violation of international law on the grounds of
discrimination, based on birth, national, ethnic or social origin, language, religion, economic
condition, political or other opinion, gender, sexual orientation, disability or any other status,
that aims towards or can result in ignoring the equality of human beings”.
4.
The Working Group concluded in its opinion No. 17/2021 that the detention was
arbitrary under category II, but not in relation to article 26. It agreed with Australia that the
deprivation of liberty was based on the automatic immigration detention policy under the
Migration Act. It also referred3 to paragraph 5 of general comment No. 15 (1986) of the
Human Rights Committee on the position of aliens under the Covenant, in which the
Committee states that it is in principle a matter for the State to decide who it will admit to its
territory. The Working Group added that the same general comment also made clear that
aliens receive the benefit of the general requirement of non-discrimination in respect of the
rights guaranteed in the Covenant, as provided for in article 2 thereof.4 Indeed, according to
paragraph 5 of general comment No. 15 (1986), in certain circumstances the safeguards under
the Covenant apply to non‑nationals also in matters of entry and residence, notably when
questions of non-discrimination are raised.
5.
The Working Group further concluded in its opinion No. 17/20215 that the detention
was arbitrary under category V, including a violation of article 26 in relation to the lack of
procedural guarantees to challenge the detention. Unlike in earlier cases, such as that
considered in its opinion No. 2/2019, the Working Group, in opinion No. 17/2021, elaborated
on the point of discrimination. 6 It noted that Australia has consistently argued that the
distinction between Australian citizens, who can challenge administrative detention, and
non-citizens, who cannot, is based on a decision of the High Court of Australia in Al-Kateb
v. Godwin.7 The Working Group found that this judgment mainly concerned the differential
1 Safdary v. Australia (CCPR/C/143/D/3686/2019), para. 7.5; Tran and I.L.P.L. v. Australia
(CCPR/C/143/D/3665/2019), para. 9.10; and A v. Australia (CCPR/C/59/D/560/1993), para. 6.6.
2 Opinion No. 17/2021, para. 123.
3 Ibid., para. 85.
4 Opinion No. 17/2021, para. 106.
5 Ibid., paras. 122 and 123.
6 Compare Working Group opinion No. 2/2019, para. 101, with opinion No. 17/2021, para. 122.
7 Case No. A253/2003, Judgment, 6 August 2004.
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GE.26-06087
15
treatment in relation to detention and that Australia did not sufficiently explain how
non-citizens can effectively challenge their continued detention, “which is what the
Government must show in order to comply with articles 9 and 26 of the Covenant”.8 The
Working Group followed the Committee’s jurisprudence as regards the lack of effective
remedies to challenge the legality of continued administrative detention, but added that the
situation is discriminatory and contrary to article 26 of the Covenant.
6.
In the present case, the Committee concluded violations of articles 7, 9 (1) and (4) and
10 (1) of the Covenant, which include arbitrary detention and lack of judicial review.
However, the Committee, in our view, failed to add the discriminatory aspect of the lack of
effective remedy to challenge the detention, as concluded by the Working Group on Arbitrary
Detention.
7.
The author further raised the issue of discrimination in the light of his detention, which
he considered to result “from the imposition of discriminatory practices, in that the Migration
Act authorized his detention for no other reason than that he fell under a certain category of
people, being an individual who arrived in Australia by boat without a valid visa”.9 Although
the Migration Act of Australia does not formally differentiate between unlawful non-citizens
arriving by boat and by aeroplane, in practice maritime arrivals lead to automatic, mandatory
detention, which is often offshore and prolonged,10 whereas for those arriving by air there are
less restrictive alternatives, such as living in the community on bridging visas with reporting
conditions. Differences in how the law is applied can result in unequal treatment that may
amount to discrimination.
8.
The State Party has argued that these measures are based on the law and aim at
regulating border control and maintaining the integrity of the immigration system, and at
discouraging dangerous boat journeys. Deterrence is not accepted by the Committee as
justification for severe rights restrictions, in particular prolonged detention, under articles 9
and 10 of the Covenant. However, the Committee did not assess whether the differential
treatment also constitutes discrimination as prohibited by article 26, which in our view it
should have done in response to the claim raised by the author.
8 Opinion No. 17/2021, para. 122.
9 See paragraph 5.5 of the Committee’s Views in the present case.
10 Safdary v. Australia, para. 8.10; M.M.M. et al. v. Australia (CCPR/C/108/D/2136/2012), paras. 10.4
and 10.7; F.J. et al. v. Australia (CCPR/C/116/D/2233/2013), paras. 10.4 and 10.6; F.K.A.G. et al. v.
Australia (CCPR/C/108/D/2094/2011), paras. 9.3, 9.4 and 9.8; C. v. Australia
(CCPR/C/76/D/900/1999), paras. 8.2–8.4; and Nabhari v. Australia (CCPR/C/142/D/3663/2019),
paras. 8.4–8.7. These practices are carried out under Operation Sovereign Borders, a maritime border
protection operation aimed at stopping maritime arrivals of asylum-seekers to Australia, launched by
the Government of Australia in 2013.
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Annex II
Individual opinion of Committee member Hélène Tigroudja
(partially dissenting)
1.
I fully agree with the conclusion reached by the Committee in the present Views: the
severe treatment inflicted on Mirand Pjetri for years is not only an arbitrary deprivation of
liberty but also in breach of the protection of his dignity under articles 7 and 10 of the
Covenant. In such a context, it is even more regrettable that, in addition to the violation of its
substantive obligations under the Covenant, Australia breached its procedural obligations
under article 1 of the Optional Protocol by not respecting the interim measures that were
granted, as stressed by the Committee in the present Views (paras. 7.1 and 7.2). As
established in the Committee’s general comment No. 33 (2008) and its long-standing
jurisprudence, the State’s obligation to respect the Committee’s interim measures is based
not only on the good faith principle codified in article 26 of the Vienna Convention on the
Law of Treaties but also on the State’s commitment to ensure effective access by individuals
to the Human Rights Committee under article 1 of the Optional Protocol.
2.
However, I disagree with the decision of the Committee to declare inadmissible the
claim of the author under the right to equality before the law (article 26 of the Covenant).
According to Mr. Pjetri, his situation amounted to discrimination, since “unlike persons who
seek asylum in the State Party while on a valid visa or who are citizens of the State Party, he
could not seek judicial review of his detention” (para. 3.2). In paragraph 8.5 of the present
Views, the Committee laconically rejected this claim, considering that “ the author has not
provided sufficient information to support his claims of discriminatory treatment” and
finding the claims insufficiently substantiated.
3.
This is not the first time the Committee has had the opportunity to analyse the
discriminatory nature of the Australian migration legislation vis-à-vis people arriving by the
sea. On the contrary, there seems to be structural discrimination in the State Party, a pattern
that has been addressed on multiple occasions by the Working Group on Arbitrary Detention
but never properly analysed by the Committee. I already expressed my opinion on this issue
in the Committee’s Views in Tran and I.L.P.L. v. Australia,1 where the very same legal
question was raised. I will not repeat what we wrote on that case, but it still stands.
4.
In Tran and I.L.P.L. v. Australia, I eventually decided to support the decision of the
Committee on article 26 of the Covenant because I considered that the author had not
elaborated sufficiently on the discrimination. I also found that the Working Group opinion
regarding Huyen Thu Thi Tran was not developed enough to ground a potential decision of
admissibility and of violation of article 26. However, in the present case, the author
substantiated his claim. In addition to what is mentioned in paragraph 3.2, the author
reiterated further (para. 5.5) that “article 26 of the Covenant was breached because his
detention resulted from the imposition of discriminatory practices, in that the Migration Act
authorized his detention for no other reason than that he fell under a certain category of people,
being an individual who arrived in Australia by boat without a valid visa”.
5.
In addition, in his initial complaint, the author referred to the Working Group opinion
adopted in 2021 on his own situation,2 in which the Working Group concluded a violation of
article 26 of the Covenant with much more development and legal analysis than in the opinion
on the Tran case. Therefore, reading the claim in the light of Working Group opinion
No. 17/2021, the assessment provided by the Committee regarding the lack of sufficient
1 CCPR/C/143/D/3665/2019, joint opinion by Committee members Bacre Waly Ndiaye and Hélène
Tigroudja (concurring).
2 Opinion No. 17/2021, paras. 85 ff.
CCPR/C/145/D/3813/2020
GE.26-06087
17
information is unclear and groundless. By its laconic conclusion of inadmissibility, the
Committee does not explain which type of additional information should have been brought
by the author.3
6.
In the present case, there were enough contextual, factual and legal elements to declare
admissible the claim under article 26 of the Covenant and to conclude to a violation in that
context.4
3 For a criticism of the “flip-flop” of the Committee’s unpredictable case law on article 26 of the
Covenant, see in particular Niels Petersen, “The implicit taxonomy of the equality jurisprudence of
the UN Human Rights Committee”, Leiden Journal of International Law, vol. 34, No. 2 (2021).
4 Tran and I.L.P.L. v. Australia, joint opinion by Committee members Bacre Waly Ndiaye and Hélène
Tigroudja (concurring). See in particular the Amnesty International report quoted in our opinion that
is also relevant for the present case.