The case of M.I. and Others v. Australia. Views of the UN Human Rights Committee dated October 31, 2024. Communication No. 2749/2016.
In 2016, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
The authors, being minors, claimed that Australia had violated their rights under the International Covenant on Civil and Political Rights in connection with their transfer to the offshore Regional Filtration Center on Nauru and the treatment they had been subjected to there. The Committee found a violation of the applicants' right to liberty and security of person.
Legal positions of the UN Human Rights Committee: 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 due process. Detention during immigration control proceedings is not arbitrary in itself, but it must be justified on the basis of reasonableness, necessity and proportionality in the light of the circumstances of the case and should be subject to review over time. The decision taken should take into account the circumstances in each specific case and should not be in the nature of a mandatory rule concerning a wide category of persons; at the same time, the possibility of applying less stringent measures to achieve the same goals should be considered, such as the obligation to register, surety or other measures preventing escape; in addition, such a decision should be subject to periodic reassessment and judicial review (paragraph 10.3 of the Considerations).
The Committee refers to paragraph 18 of its general comment No. 35 (2014) on freedom and personal integrity, which states that children are not subject to deprivation of liberty except as a last resort and for the shortest possible appropriate period of time, taking into account the primary provision of their best interests in terms of duration and conditions. their detention and taking into account their extreme vulnerability and the care needs of unaccompanied minors (paragraph 10.4 of the Considerations).
The Committee recalls that judicial review of the legality of detention in accordance with article 9, paragraph 4, of the Covenant cannot be limited solely to verifying compliance with national legislation, but should include the possibility of ordering release if detention is incompatible with the provisions of the Covenant, in particular article 9, paragraph 1 (paragraph 10.6 of the Views).
Assessment of the UN Human Rights Committee: The State party has introduced a policy of transferring refugees who illegally arrived in Australia by sea after August 13, 2012, to one of the countries with a regional filtration center, either in Nauru or Papua New Guinea, for consideration of their requests for protection. The State party allocated funds for the detention of immigrants, was authorized to participate in the management and monitoring of detention facilities, selected companies responsible (directly or through subcontractors) for construction, security, social and medical services, as well as for the provision of other services in the migrant detention center, and provided Nauru police services to help implement immigration detention measures. In the light of all the factors described above, the Committee considered that the high level of control over the work and influence on the work of the Regional Filtration Center in Nauru by the State party was equivalent to such effective control during 2014, when the authors were at the Center. The Committee also concluded that these elements of control went beyond general dependence and support, and that the transfer of the authors to Nauru did not abrogate the State party's obligations towards them under article 9 of the Covenant. The Committee considered that the authors were under the jurisdiction of the State party during their detention in the Nauru Regional Filtration Centre. The Committee therefore concluded that articles 2 of the Covenant and 1 of the Optional Protocol did not constitute obstacles ratione loci to the authors' claim under article 9 of the Covenant being admissible in connection with their detention at the Nauru Regional Filtration Centre (paragraph 9.9 of the Views).
By virtue of article 2, paragraph 1, of the International Covenant on Civil and Political Rights, each State party to the Covenant undertakes to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognized in the Covenant.
The Committee considered that the State party had not demonstrated on an individual basis that the continuous and prolonged detention of the authors for an extended period of time was justified. The State party has also failed to demonstrate that other, less intrusive measures could not achieve the same goal of meeting the State party's need to ensure the possibility of expelling the authors (paragraph 10.4 of the Views).
The authors claimed that they had decided to leave for Australia to escape the persecution they had been subjected to in their countries. When they were heading to Australia by sea, between mid-2013 and early 2014, the Australian authorities intercepted them and took them to Christmas Island. As can be seen from the text of the Considerations, the children spent from 2 to 12 months in immigration detention on this island before being transferred to the Nauru Regional Filtration Center in 2014 (paragraph 10.4 of the Considerations).
Earlier, the UN Human Rights Committee found that the scope of internal judicial review of immigration detention is not wide enough to consider the merits of individual cases of detention. The State party has not provided relevant judicial precedents demonstrating the effectiveness of recourse to national courts in similar situations. Moreover, it did not demonstrate that this remedy was available to the authors and did not show that the national courts were entitled to make separate decisions on the reasonableness of detention in respect of each author (paragraph 10.6 of the Considerations).
The Committee considered that the authors had not proved that they were personally at risk of arbitrary deprivation of life, torture or other ill-treatment, which would amount to irreparable damage as a necessary and foreseeable consequence of their transfer to Nauru in 2014 (paragraph 10.10 of the Views).
Taking into account background reports on the mandatory detention of immigrants without an individual assessment, including whether to apply less restrictive measures, the prevalence of insecurity, including violence, overcrowding and conditions close to prison conditions, as well as the lack of opportunity for the authors, as unaccompanied minors, to appeal such a decision on mandatory placement in an immigration center, The Committee considered, That the authors were detained arbitrarily in violation of their rights under article 9, paragraphs 1 and 4, of the Covenant during their stay at the Nauru Regional Filtration Center (paragraph 10.11 of the Views).
Conclusions of the UN Human Rights Committee: the facts presented indicated a violation of paragraphs 1 and 4 of article 9 of the Covenant.