CCPR/C/132/D/2365/2014 Advance unedited version
1.1
The authors of the communication are A.K., born on 31 December 1998, A.R., born
on 11 February 1997, G.Z., born on 31 December 1998, B.A.A., born on 31 December 1998,
E.E., born on 31 December 1997, H.M., born on 31 December 1996, S.H., born on 31
December 1997, K.M., born on 25 April 1999, all nationals of Afghanistan, A.Z., born on 12
February 1997, S.M., born on 1 June 1996, H.I., born on 31 December 1994, A.M., born on
1 January 1998, all nationals of Pakistan, and D.D., born on 15 February 1997, a national of
Iraq. In 2013, the authors arrived as unaccompanied minors to Australia and were placed in
a detention centre. Initially, they claimed that the State party would violate their rights under
article 24 (1) of the Covenant in case they were transferred to the Nauru regional processing
centre. In the subsequent submission of 24 March 2014, the Committee was informed that
the authors were also claiming violations of articles 2 (3), 7, 9 (1) and (4), 10, 17 and 23 of
the Covenant. On 10 September 2015 the authors submitted additional claims about the
conditions of their detention on the mainland Australia under articles 17, 23 and 24 of the
Covenant. The Optional Protocol entered into force for Australia on 25 December 1991. The
authors are represented by counsel, Katherine Wrigley from the Refugee Advice and
Casework Service.
1.2
When submitting the communication, on 13 March 2014, the authors requested that,
pursuant to rule 94 of its rules of procedure, the Committee request the State party to refrain
from deporting or transferring them from Australia while their case was being considered by
the Committee. On 21 March 2014, the Committee, acting through its Special Rapporteur on
new communications and interim measures, decided not to accede to the request.
1.3
On 10 September 2015, the counsel informed the Committee that two authors, S.H.,
born on 31 December 1997, and K.M., born on 25 April 1999, decided to withdraw their
complaints.
Factual background
2.1
Between July and November 2013, the authors arrived to Australia as unaccompanied
minors. They were placed in a detention centre for illegal migrants and asylum seekers on
Christmas Island (Australia) pursuant to section 189 (3) of the Migration Act. The authors’
parents either remained in their home countries or were deceased.
2.2
Following their arrival and detention on Christmas Island, the authors were at risk of
being transferred to Nauru for further processing in accordance with the Australian Migration
Act. The State party’s policy at the time was to detain and subsequently transfer all
individuals who had arrived as irregular maritime arrivals to a regional processing country,
subject to a condition that there were vacant accommodation and facilities suitable for the
needs of transferred individuals. In March 2014, the authors’ counsel sent two letters to the
Australian Department of Immigration and Border Protection and to the Minister for
Immigration and Border Protection requesting that the authors be exempted from the transfer
to Nauru on the ground of their status of unaccompanied minors. The counsel also wrote to
Christmas Island Case management requesting assurances that some of the minors would not
be transferred. The authors did not receive a reply to these letters. They did not seek judicial
review of the situation, as they believed that there was no effective judicial remedy available
to them to prevent the transfer. Subsequently, the authors’ counsel noted that she was
unaware whether there had been any remedies capable of preventing the transfer.
2.3
In autumn 2014, the Minister for Immigration and Border Protection announced that
all unauthorized maritime migrants, who had arrived to Australia between 19 July and 31
December 2013 and had not yet been transferred to a regional processing country, would not
be transferred to offshore processing centers. In December 2014, all minors, including six
authors1, were moved from Christmas Island to the Australian mainland. They were all placed
in group housing arrangements. The remaining authors were also relocated to the mainland
between December 2014 and February 2015.
2.4
A.K. arrived to Christmas Island in August 2013. He had spent approximately 15
months in the detention center on Christmas Island. He was relocated to a community
detention center in Geelong, Victoria. In May 2016 he was in community detention in
1
2
The following authors were transferred: A.Z., D.D., B.A.A., A.K., A.R., A.M.