Communication
2749/2016
Submission: 2016.01.12
View Adopted: 2024.10.31
In M.I. et al. v. Australia, 24 unaccompanied minors were intercepted at sea by Australia and were first detained in an Australian territory in the Indian Ocean. Pursuant to memoranda of understanding signed between Australia and the Republic of Nauru, the authors were then transferred to Nauru and detained at a Regional Processing Centre. The authors argued that Australia had violated their rights under the Covenant, particularly as to their rights under article 9 of the Covenant on arbitrary detention. Australia countered, in large part, by arguing that the alleged violations in Nauru were not within Australia’s jurisdiction. The Committee considered this case in light of its earlier jurisprudence on the exercise of jurisdiction by a State party, as well as General Comment No. 31, which defines the principle of “power or effective control” when establishing the exercise of jurisdiction. In view of these standards, and the fact that Australia had, for instance, arranged for the construction of the Regional Processing Centre in Nauru and had a substantial role in financing and supporting its operations, the Committee found that Australia did have jurisdiction over the asylum seekers and had violated their rights under the Covenant.
This case reflects an important pronouncement on the extent of a State’s human rights obligations with respect to asylum seekers, including when the individuals are forcibly redirected and detained abroad. As the Committee’s Views indicate, offshore detention agreements will not absolve States parties of their obligations to asylum seekers, because States may continue to have jurisdiction over asylum seekers if they have power or effective control over the operation of the offshore detention facility. In reaching these decisions, the Committee underscored the enduring extraterritorial obligations of States parties under the Covenant, and developed its jurisprudence with respect to the outer reach of a State party’s jurisdiction. Notably, the Committee also dealt with a parallel case on this topic in 2024, in M. Nabhari v. Australia (CCPR/C/142/D/3663/2019).
The authors of the communication are M.I. and 23 others. Twenty-two of the authors are nationals of Afghanistan, Iran, Iraq, Pakistan and Sri Lanka, and two are stateless persons coming from Myanmar. At the time of submission of the communication, all authors were unaccompanied minors. The authors claim that they were fleeing persecution in their home countries and, while en route to Australia by sea, were intercepted by Australian authorities and brought to Christmas Island between mid-2013 and early 2014. The authors were mandatorily detained until their forcible transfer to the Nauru offshore Regional Processing Centre by Australian authorities in 2014. The authors’ transfer to Nauru was based on a memorandum of understanding between Nauru and Australia. The authors applied for asylum in Nauru and all but one applicant, who had appealed the decision, were granted refugee status in Nauru.
The authors claim that Nauru is a difficult place to live, with overcrowded accommodations, insufficient sanitation, high temperatures and humidity that impede rest and recreational activities, and limited access to telephones and the internet. As a result, the authors claim that most of them began to suffer from health problems in Nauru in the form of deterioration of physical and mental well-being. The authors also contend that the State party had jurisdiction and effective control over them from the time of their interception at sea, during their detention and refugee status determination in the Nauru Regional Processing Centre, and in the event that they are resettled in a third country. The State party is responsible under international human rights law for the treatment of asylum-seekers, which it cannot avoid by transferring them to third States or by transferring and detaining them outside its territory.
The authors allege that the State party violated article 7 of the Covenant because the effects of the unacceptable detention conditions at the Nauru Regional Processing Centre, as well as the indefinite nature of the detention and the uncertainty surrounding the authors’ fate amount to cruel, inhuman or degrading treatment. The authors further claim that their rights under article 9 (1) and 9 (4) have been violated, because mandatory immigration detention is arbitrary per se when detention is not based on an individualized assessment, and because their entitlement to seek a decision on the legality of their detention and to be released if the detention was found to be unlawful was not respected. The authors also claim a violation of article 10 (1) because they were not treated with humanity and respect for their inherent dignity at the Regional Processing Centre. In addition, the authors claim a violation of article 12 because their detention at Christmas Island and the Regional Processing Centre in Nauru limited their freedom of movement, and they were unable to choose their place of resettlement after they were recognized as refugees.
The authors likewise claim a violation of article 13, because they had no access to a procedure for the determination of their status in Australia and the lawfulness of their expulsion therefrom. The authors claim that the State party violated their rights under article 17 by subjecting them to arbitrary or unlawful interference with their privacy and family life. They also claim a violation under article 19 (2) because they were prevented from seeking, receiving and imparting information and ideas, and from being in contact with their relatives via telephone or Internet. The authors further claim that they were prevented from seeking information and from being in contact with their relatives, and that the State party failed to comply with its obligations with respect to the authors under articles 23 and 24, owing to the fact that they were unaccompanied minors. The authors claim that the State party imposed restrictions that were not in conformity with the law necessary in a democratic society, in the interests of national security or public safety, public order, the protection of public health or morals, or the rights and freedoms of others, in violation of article 21 of the Covenant. Finally, the authors claim that the State party violated its obligations under article 26 by not ensuring them equal treatment before the law.
The Committee noted the State party’s objection, according to which the authors’ claims regarding the conditions of their detention in Nauru should be inadmissible because the authors were not under the jurisdiction or effective control of the State party—namely, the Regional Processing Centre was governed by the laws of Nauru, and the Nauruan authorities had been taking decisions on the authors’ asylum or refugee status. The Committee further noted the State party’s objection that it had not exercised a level of control over the Nauru Regional Processing Centre that would amount to an exercise of jurisdiction or effective control by the State party.
However, the Committee noted that the authors had been transferred to Nauru by the State party pursuant to its Migration Act and memorandum of understanding with Nauru. Therefore, the authors’ placement in Nauru pending the processing of their protection claims was a necessary and foreseeable consequence of their transfer by the State party. It also noted that in its General Comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, the Committee defined the principle of “power or effective control” when establishing exercise of jurisdiction. The Committee observed that the State party’s memorandum of understanding allowed for significant involvement in the detention operations in Nauru. In addition, the Committee noted the authors’ arguments that the State party had, inter alia, contributed to the drafting of the legislation of Nauru establishing the Centre, procured and caused the creation of the Centre by requesting Nauru to host it, entered into a memorandum of understanding, and carried out certain aspects of the practical management of operations and administration at the Centre. Specifically, the State party arranged for the construction and establishment of the Centre, and entered into contracts for the delivery of garrison support and/or welfare services with a number of providers.
In light of these factors, the Committee considered that the State party exercised significant levels of control and influence over the operation of the Regional Processing Centre in Nauru, amounting to effective control during the period in 2014 when the authors were detained at the Centre. These elements of control went beyond a general dependence and support, leading to the conclusion that the authors were subject to the jurisdiction of the State party which they were detained at the Nauru Regional Processing Centre. The Committee considered that the authors’ claims under articles 9 (1), 9 (4), and 7 of the Covenant were admissible under the Optional Protocol.
The Committee considered that the authors had not sufficiently substantiated that they were lawfully present in the territory of the State party to be able to invoke their rights under 12 and 13 of the Covenant. In addition, the authors’ claims under articles 10 (1), 17, 19 (2), 21, 23 (1), 24 (1) and 26 were not sufficiently specific and are not supported by adequate facts. As a result, these claims were inadmissible under article 2 of the Optional Protocol.
The Committee considered the authors’ claims that their immigration detention on Christmas Island was arbitrary and unreasonably prolonged, and that the conditions of detention and facilities on Christmas Island were inadequate for them and in violation of article 9 of the Covenant. The authors did not argue that their detention was unlawful under Australian law, and the Committee noted that the notion of arbitrariness must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability and due process of law. Detention in the course of proceedings for the control of immigration is not arbitrary per se, but must be justified as being reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time.
The Committee recalled that in its General Comment No. 35 (2014) on the liberty and security of person, it stated that children should not be deprived of liberty, except as a measure of last resort and for the shortest appropriate period of time, taking into account their best interests as a primary consideration with regard to the duration and conditions of detention, and also taking into account the extreme vulnerability and need for care of unaccompanied minors. Noting that the authors spent between 2 and 12 months in immigration detention before being transferred to the Nauru Regional Processing Centre, the Committee considered that the State party had not demonstrated, on an individual basis, that the authors’ uninterrupted and protracted detention was justified for an extended period of time. The State party had also not demonstrated that other less intrusive measures could not have achieved the same end, such as the transferal of the authors to community detention centers on the mainland, which are more tailored to meet the needs of vulnerable individuals. The Committee therefore considered that the placing of the authors, as unaccompanied minors, in immigration detention on Christmas Island was arbitrary and contrary to article 9 (1) of the Covenant.
With respect to the authors’ claims that they did not have any effective domestic remedy to challenge the legality of their detention before domestic courts, the Committee recalled that judicial review of the lawfulness of detention under article 9 (4) of the Covenant must include the possibility to order release if the detention is incompatible with the requirements of the Covenant. Further recalling its previous jurisprudence concerning review of the detention of non-citizens without valid entry documentation in Australia, the Committee considered that the State party had not demonstrated the availability of such a legal remedy for the authors, and had not shown that national courts have the authority to make individualized rulings on the justification for each authors’ detention. The Committee therefore considered that the facts disclosed a violation of article 9 (4) of the Covenant.
The Committee considered the State party’s assertion that it lacked jurisdiction or effective control over the authors when they were in the Nauru Regional Processing Centre. However, it held that the sole reason for the authors’ administrative detention in Nauru was indisputably their unauthorized entry into Australia by irregular maritime means as asylum seekers. Taking note of reports on mandatory immigration detention, unsafe and prison-like conditions, and the absence of an opportunity to appeal the immigration detention decision, the Committee considered that the authors were detained arbitrarily in violation of their rights under articles 9 (1) and (4) of the Covenant.
With respect to article 7 of the Covenant, the Committee considered the authors’ claims that the State party did not respect its non-refoulement obligations and exposed them to the effects of unacceptable detention conditions at the Nauru Regional Processing Centre, and that indefinite nature of the detention and the uncertainty surrounding their fate, which have amounted to cruel, inhuman or degrading treatment or punishment. In its General Comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, the Committee referred to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory where there were substantial grounds for believing that there was a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant. This risk must be personal, and there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists.
The Committee observed that the State party’s immigration authorities considered individual claims by the authors, and while the authors disagreed with the conclusions of those pre-transfer assessments, they had not provided evidence to support a contention that such assessments were clearly arbitrary or amounted to a manifest error or a denial of justice. The Committee therefore concluded that the authors had not established that they were personally at risk of arbitrary deprivation of life, torture or other ill-treatment, which would have amounted to an irreparable harm as a necessary and foreseeable consequence of their transfer to Nauru. The Committee did not consider that the facts disclosed a violation of article 7 of the Covenant.
The State party should, inter alia:
Deadline for implementation: 31 April 2025
