The case of A.K. and Others v. Australia. Views of the Human Rights Committee of July 8, 2021. Communication No. 2365/2014.
In 2014, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
As follows from the text of the Considerations, the authors claimed that they were subjected to arbitrary detention on Christmas Island for an excessively long period of time, which, in the authors' opinion, contradicted the requirements of article 9, paragraph 1, of the Covenant. They referred to the Committee's jurisprudence and stressed that their detention was not a necessary and proportionate measure. In addition, the authors claimed that the State party violated article 9, paragraph 4, because they had no opportunity to challenge their detention (paragraph 3.1 of the Views).
The Committee's legal position: the concept of "arbitrariness" should not be equated with the concept of "illegality", but should be interpreted more broadly, including elements of unacceptability, injustice, unpredictability and non-compliance with procedural guarantees. Detention in immigration control cases is not arbitrary in itself, but such detention should be justified on the basis of reasonableness, necessity and proportionality in accordance with the circumstances and should be subject to review over time. The decision taken should take into account the circumstances of each specific case and should not be of the nature of a mandatory rule concerning a wide category of persons; it should take into account the existence of less stringent measures to achieve the same goals, such as the obligation to register, surety or other measures preventing escape, and such a decision should be subject to periodic reassessment and judicial review (paragraph 8.4 of the Views) (See the case of M.J.K. v. Australia (CCPR/C/113/D/1875/2009), paragraph 11.5.). By virtue of article 9, paragraph 1, of the Covenant, "Everyone has the right to liberty and security of person. No one may be subjected to arbitrary arrest or detention. No one shall be deprived of liberty except on such grounds and in accordance with such procedure as are prescribed by law."
The Committee refers to its general comment No. 35, in which it stated that children should not be deprived of their liberty except as a measure of last resort and for as short a period as possible, taking into account the paramount consideration of their best interests in terms of the duration and conditions of their detention and taking into account their.... vulnerability and care needs of unaccompanied minors (paragraph 8.5 of the Considerations). General comment of the Human Rights Committee No. 35 (2014) on freedom and personal integrity, paragraph 18. In addition, in its previous concluding observations on Australia (2017) (CCPR/C/AUS/CO/6, para. 37), the Committee expressed its concern that detention powers appear to be used to deter illegal entry into the country as a whole, rather than in response to individual risks, as well as due to the fact that, despite the reduction in the number of children in immigration centers, the practice of mandatory detention of children and unaccompanied minors continues to be applied. In addition, the Committee expressed concern about the poor conditions of detention in some centers, the presence of asylum seekers with migrants who were denied visas due to their criminal past, the prevalence of reported cases of mental disorders among detained migrants, which are allegedly related to the length and conditions of detention, as well as about information on the increased use of force and physical measures against migrants in detention.
See also joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on the obligations of States with regard to the human rights of children in the context of international migration in countries of origin, transit, destination and return (2017) (CMW/C/GC/4-CRC/C/GC/23), paragraph 8.
The Committee recalls that judicial review of the legality of detention in accordance with article 9, paragraph 4, [of the Covenant] is not limited solely to the conformity of such detention with national law, but should include the possibility of deciding on release if detention is incompatible with the requirements of the Covenant, in particular with the requirements of paragraph 1 article 9 of the Covenant (paragraph 8.7 of the Views).
The Committee's assessment of the factual circumstances of the case: it was established that the authors arrived on Christmas Island on different dates between July and November 2013 as unaccompanied minors. In accordance with the national policy of the time, all of them were placed in immigration detention centers. They spent from 13... to 18 months in immigration detention centers, after which they were transferred to community detention centers on the Australian mainland. The Committee considered that the State party had not demonstrated on a case-by-case basis that the continuous and prolonged detention of the authors for such a long period of time was justified. The State party has also failed to substantiate that other less stringent measures could not have led to the same result in terms of the State party's need to be confident in the possibility of expelling the authors. In particular, it has not been proven that the authors, who were minors at the time, could not have been transferred at an earlier date to community detention centers better adapted to meet the specific needs of vulnerable persons (paragraph 8.54 of the Considerations).
The Committee also took note of the authors' allegations that they had no effective domestic remedy before the national courts to challenge the legality of their detention, contrary to the requirements of article 9, paragraph 4, of the Covenant. The Committee took into account the State party's argument that the authors had access to a judicial review procedure on the legality of their detention in accordance with national law. At the same time, the State party stated that the verification of the "legality of detention" within the meaning of article 9, paragraph 4, of the Covenant implied only compliance with the national legislation of the State (paragraph 8.6 of the Views).
The Committee noted its previous jurisprudence regarding the review of decisions on the detention in Australia of non-citizens without valid entry documents. In particular, it was previously established that the scope of judicial review at the national level of decisions on the detention of immigrants is not wide enough to consider the merits of the detention of an individual. In addition, relevant national judicial practice has demonstrated that even a successful judicial challenge to a detention decision will not necessarily lead to release from arbitrary detention. The State party has not provided relevant legal precedents demonstrating the effectiveness of recourse to national courts in similar situations. Moreover, it did not prove the accessibility of this remedy to the authors and did not show that the national courts have the right to make individual decisions on the reasonableness of each author's detention. Therefore, the Committee saw no reason to abandon its established approach (paragraph 8.7 of the Views).
The Committee's conclusions: The State party violated the authors' rights under articles 9, paragraphs 1 and 4, and under article 24 of the Covenant.