CCPR/C/116/D/2233/2013
The secret basis for the security assessment renders it impossible to evaluate the
justification for detention. It also constitutes a denial of due process of law. The authors
consider that it can only be assumed that the assessments relate to their suspected conduct
prior to their entry to Australia. However, they argue that if the State party possesses good
evidence to suspect that any of the Sri Lankan authors has committed a crime in the context
of the armed conflict in Sri Lanka, or by association with an organization such as the
Liberation Tigers of Tamil Eelam, such crimes can be prosecuted under Australian law.
Furthermore, any prior activities of the authors in Sri Lanka cannot easily establish that the
authors present a relevant risk to the Australian community. The provenance of any
information about them may be unreliable, particularly if the Australian authorities have
relied upon intelligence provided by the Government of Sri Lanka. Likewise, any serious
crimes committed in the context of involvement with the Taliban, if relevant to the Afghan
author, could be prosecuted, as could any terrorism offences, for instance, committed in the
Islamic Republic of Iran, if relevant to the Iranian author.
3.6
The State party has not used any alternative to detention, nor demonstrated that such
an alternative would be inadequate or inappropriate in meeting security concerns.
Furthermore, Australian law does not provide any legally enforceable mechanism for
periodic review of the grounds of detention or a maximum period of detention. Detention
simply continues until a person receives a visa or is removed from Australia. In similar
cases the High Court of Australia has confirmed the validity of indefinite immigration
detention.
3.7
Australia has not provided any evidence or substantiation that the authors are such
an extremely serious threat as to necessitate their removal from Australia to protect the
community, or that less invasive means for protecting the community are unavailable. If
Australia intends to expel the authors to a third country, it would also need to demonstrate
that such a country is safe and that there is no risk of chain refoulement to the country of
origin.
3.8
The continuing existence of any personal grounds justifying the authors’ detention
has not been subject to any review by the State party.
3.9
The authors argue that the security assessment in Australia operates as an additional,
unilateral ground for excluding refugees that is not authorized under the Convention
relating to the Status of Refugees and exceeds what is permitted by it. Refugees can be
excluded from protection under the Convention only if they are suspected of committing
the serious conduct specified under article 1F or pose risks under article 33 (2) of the
Convention, and not merely because they fall within the wide meaning of “security” under
Australian law. Their detention cannot be justified under international refugee law once
their refugee status has been recognized and neither article 1F nor article 33 (2) applies.
Article 9 (2)
3.10 None of the authors were informed by the authorities of the substantive reasons for
their detention. At most, they were made aware that they were being detained because they
(iv)
promotion of communal violence;
(v)
attacks on Australia’s defence system; or
(vi)
acts of foreign interference;
whether directed from, or committed within, Australia or not; and
(aa)
the protection of Australia’s territorial and border integrity from serious threats; and
(b)
the carrying out of Australia’s responsibilities to any foreign country in relation to a
matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in
paragraph (aa).
4