CCPR/C/116/D/2233/2013
2.5
As they have been refused a visa, all the authors are being kept in detention
officially for the purpose of removal under section 198 of the Migration Act. However, they
do not wish to return voluntarily to their countries of nationality and the State party has not
informed them that any third country has agreed to accept them or that active negotiations
for such purpose are either under way or envisaged.
2.6
The authors claim that no domestic remedies are available to them, as there is no
statutory basis for challenging the substantive necessity of detention. Moreover, where the
authors’ detention is authorized by domestic law, there is no basis under Australian law to
challenge inhumane or undignified treatment inflicted by that valid law in circumstances
where the powers conferred by the law are not exceeded.
The complaint
3.1
The authors claim that their detention violates article 9 (1), (2) and (4), article 7 and
article 10 (1).
Article 9 (1)
3.2
The authors consider that their detention has been arbitrary or unlawful under article
9 (1) in two separate stages of the process: first, before the decision by Australia to refuse
them refugee protection and second, after the refusal decision and pending their removal
from Australia.
3.3
The authors argue that the State party did not provide any lawful, individualized
justification for detaining the authors upon their arrival, such as to determine whether each
of them presented a risk of absconding or lack of cooperation or posed a prima facie
security threat to Australia. All were automatically detained merely because they were
unlawful non-citizens in an excised offshore place. The statutory framework applicable to
such persons does not permit an individual assessment of the substantive necessity of
detention. The authors were never provided with any statement of reasons, and no relevant
information or evidence was disclosed to them to substantiate any suspicion that they posed
security risks warranting their detention. Moreover, the State party did not provide any
avenue for the authors to access such information.
3.4
In the absence of any substantiation by the State party of the need to individually
detain each author, it may be inferred that such detention serves other objectives, such as
addressing a generalized risk of absconding that is not personal to each author; a broader
aim of punishing or deterring unlawful arrivals; or the mere bureaucratic convenience of
having such persons permanently available. None of these objectives provides a legitimate
justification for detention.
3.5
As to the post-refusal stage, the mere assertion by the executive branch that a person
poses a security risk that justifies detention cannot satisfy the requirements of article 9.3
3
The authors provided an example of the template letter received from the Department of Immigration
and Citizenship informing them about the security assessment outcome. The substantive part of the
letter indicates: “[The Australian Security Intelligence Organisation] assesses [name of author] to be
directly (or indirectly) a risk to security, within the meaning of section 4 of the Australian Security
Intelligence Organisation Act 1979. [The Organisation] therefore recommends that any application
for a visa by [name of author] be refused”. Section 4 of the Act defines “security” as:
(a)
the protection of, and of the people of, the Commonwealth and the several States and
Territories from:
(i)
espionage;
(ii)
sabotage;
(iii)
politically motivated violence;
3