Prolonged administrative detention of an asylum claimant in Australia and in an offshore centre in Nauru

Facts

The author of the communication is a national of Iran, and alleges that the State party has violated her rights under articles 9 (1), 17 (1) and 23 (1) of the Covenant. The State party signed memoranda of understanding with Nauru in 2012 and 2013, wherein Nauru agreed to serve as a regional offshore processing country, and to allow individuals to settle in Nauru if it was determined that they required international protection. However, these individuals would not be permitted to apply for asylum in Australia or be permanently resettled in Australia. The author arrived by boat to Christmas Island, a territory of the State party, in the company of her husband, stepfather, stepsister and male cousin, and without valid visas. The State party’s authorities detained the author and her husband, and subsequently transferred them to Nauru. They were detained at the Nauru Regional Processing Centre, and the Nauru authorities recognized the author as a refugee. The author and her husband were then transferred to an immigration detention facility on mainland Australia, following the author’s request for specialist medical treatment. The author and her husband were transferred to different facilities, and she and her husband were eventually allowed to reside in community detention. The author states that she has experienced psychological and physical health issues since her detention in Nauru, and has been long separated from her stepsister and stepfather.

The author claims that the State party violated article 9 (1) of the Covenant by failing to provide individualized justifications for administratively detaining her, despite the fact that she was granted refugee status in Nauru in 2017. The author contends that her detention has been punitive, and exceeds any legitimate interest of the State party in protecting its people and regulating migratory flows. Additionally, the author cannot challenge the lawfulness of her detention before a judicial authority. Finally, the author claims that the separation from her family violates her rights under articles 17 (1) and 23 (1) of the Covenant.

Admissibility

The Committee considered that the author’s claims under articles 9 (1) were admissible 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. States parties are required by article  2 (1) of the Covenant to respect and ensure Covenant rights to all persons who might be within their territory, and to all persons subject to their jurisdiction. This includes anyone within the power or effective control of that State party, even if not situated within the territory of the State party. The Committee observed that the State party funded the detention operations in Nauru, was authorized to manage them, participated in monitoring them, and selected companies responsible for various services at the detention centre. The State party therefore exercised numerous elements of effective control over the detention operations of the Centre. The Committee considered that while the author was detained at the Centre, she was subject to the jurisdiction of the State party, and the fact of her detention there is attributable to the State party.

However, the Committee considered that the author’s claim under article 9 (1) was inadmissible with respect to the period when she was settled in the community in Nauru and was living in a house. The author did not sufficiently substantiate that she had been detained in Nauru during that period, and did not adequately describe her living situation following her release from the Regional Processing Centre. In addition, the author did not provide sufficient elements to establish the applicability of articles 17 or 23 (1) of the Covenant, and those claims are therefore inadmissible under article 2 of the Optional Protocol.

Merits

The Committee considered that the State party has violated the author’s rights under article 9 (1) of the Covenant. The Committee noted that the author was detained for more than seven months on Christmas Island, and spent over four years and five months detained in Nauru. She was subsequently detained at various facilities in mainland Australia for approximately 11 and a half months. 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. Whatever justification the State party may have had for an initial detention, such as the ascertaining of the author’s identity or other issues, the State party has not demonstrated on an individual basis that the author’s prolonged and indefinite justification was justified. The Committee further noted that the author lacked the legal safeguards to effectively challenge her indefinite detention. For these reasons, the Committee considered that the State party arbitrarily detained the author in violation of article 9 (1) of the Covenant.

Recommendations

The State party should, inter alia:

• (a) make full reparation to individuals whose Covenant rights have been violated;
• (b) 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;
• (c) take all steps necessary to prevent similar violations from occurring in the future; and
• (d) 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.

Implementation

Deadline for implementation: 25 April 2025