CCPR/C/116/D/2233/2013
1.
The authors of the communication are five persons held in Australian immigration
facilities. One of the authors, F.J., born in 1978, is an Iranian national of Persian ethnicity.
Three of the authors are Sri Lankan nationals of Tamil ethnicity: T.S., born in 1979; C.S.,
born in 1979; and V.N., born in 1978. The remaining author, T.T., born in 1979, is an
Afghan national of Hazara ethnicity. They claim violations of their rights under articles 7, 9
(1), (2) and (4) and 10 (1). The authors are represented by counsel. The Optional Protocol
entered into force for the State party on 25 December 1991.
The facts as submitted by the authors
2.1
The authors entered Australian territorial waters in various boats between September
2009 and September 2010, in order to claim protection as refugees in Australia. They were
first disembarked at Christmas Island. They did not have valid visas to enter Australia and
were placed in immigration detention facilities upon their arrival, under section 189 (3) of
Migration Act 1958, according to which Australian authorities must detain a person who is
an “unlawful non-citizen” in an “excised offshore place”.1 At the time of submission of the
communication to the Committee, F.J. was being held at Melbourne Immigration Transit
Accommodation, C.S. and T.S. at Port Augusta Immigration Transit Accommodation, T.T.
at Villawood Immigration Detention Centre and V.N. at Christmas Island Immigration
Detention Centre.
2.2
The authors were recognized prima facie by the Department of Immigration and
Citizenship as refugees for whom return to their countries of origin was unsafe. However,
they were subsequently refused visas to remain in the State party, following adverse
security assessments made by the Australian Security Intelligence Organisation. None of
the authors were given the reasons for the adverse security assessments made against them.
2.3
The authors are unable to challenge the merits of their security assessment.2 In
particular, under Section 36 of the Australian Security Intelligence Organisation Act 1979,
review by the Administrative Appeals Tribunal is denied to persons who are not citizens or
holders of either a valid permanent visa or a special visa. Further, because the authors are
offshore entry persons, they are not entitled to seek merits review in the Refugee Review
Tribunal. This Tribunal has power only to review a decision to refuse to grant protection.
Furthermore, the Australian Security Intelligence Organisation issues adverse security
assessments after the offshore determination process has been completed. There is therefore
no offshore process in which the merits of the adverse security assessments can be
reviewed as part of the asylum determination process.
2.4
The only avenue available to the authors is review before the federal courts for
“jurisdictional error” (error of law), which may include the denial of procedural fairness.
However, such review is not a merits review of the factual and evidentiary basis of the
Australian Security Intelligence Organisation decision. Furthermore, in security cases
involving the Organisation, the federal courts accept that the procedural fairness owed to an
affected person can be heavily restricted. Since the grounds for the assessments made by
the Organisation have not been disclosed, the authors have no way of determining whether
there exist any jurisdictional errors.
1
2
2
Section 189 governs the detention of those who enter Australia without authorization under
immigration law.
In the letters received by the authors regarding the outcome of their security assessment, it was
indicated that they did not have a right to seek a merits review of the Australian Security Intelligence
Organisation assessment, because under the Australian Security Intelligence Organisation Act 1979,
only certain categories of persons were able to seek a merits review of a security assessment and the
authors did not come within any of those categories.