The Human Rights Committee (HRC) has concluded that 46 recognised refugees facing indefinite detention in Australia due to adverse security assessments should be released and offered compensation and rehabilitation.
The group includes 42 Tamils from Sri Lanka, three Rohingya from Myanmar and a Kuwaiti. Separately they arrived in Australia between March 2009 and December 2010 and were found to be genuine refugees. ASIO subsequently determined that they were each a threat to national security, however no further information was provided leaving the refugees without options for appeal and facing indefinite detention in Australian immigration centres.
In two communications to the HRC the group argued that their indefinite detention violated Article 7 and/or 10(1) and Article 9 paragraphs (1), (2) and (4) of the International Covenant on Civil and Political Rights (ICCPR).
In response the Australian Government argued that the claims were not within the jurisdiction of the HRC, that options were being explored for the resettlement or safe return of the refugees, and that it was not appropriate for people with an adverse security assessment to live in the Australian community.
However the HRC concluded that the detention of the 46 individuals was arbitrary as the Government has not demonstrated in each individual case that continued detention was reasonable, necessary and appropriate (Article 9(1) ICCPR); that failure to inform refugees of the reasons for their ongoing detention is a violation of the Covenant (Article 9(2) ICCPR)*; that the lack of access to Courts and possibility of release if detention is found to be arbitrary or unlawful violated Article 9(4) ICCPR; and the indefinite detention constituted cruel, inhuman and degrading treatment (Article 7 ICCPR).
On the basis of these conclusions the HRC has said that Australia should release the refugees from detention and provide compensation and rehabilitation. The Australian Government has 180 days to provide information to the HRC as to how it will give effect to the findings.
Since the complaints were lodged, seven of the refugees – a mother and her son, who was born in 2007, and a family of five – have now been granted visas and released from detention to settle into the Australian community
* This finding relates only to five of the refugee authors whose circumstances of arrival differed slightly from the others.